“Some of the decisions in the broad ETS/TOEIC category have generated a right of appeal to the First-tier Tribunal (“FtT”), in country. This has occurred typically in cases where the student concerned has been challenged at port upon returning to the United Kingdom from, for example, a visit to the country of origin, followed by an in-country appealable decision of the Secretary of State. Others have generated a right of appeal exercisable only out of country (as in the present case). Other cases, believed to be the majority, have generated judicial review challenges, as in Mahmood and the present case. Thus there is a slowly expanding body of case law in this sphere. In all of these cases, the Secretary of State has relied on evidence of a generic kind. This consists of the witness statements of Rebecca Collings and Peter Millington, both dated23 June 2014 . The statements of these two witnesses have neither evolved nor altered since then. In some cases, as in the present one, these statements are supplemented by a further witness statement of another Home Office official.”
“At this juncture it is convenient to consider the issue of alternative remedy, given the inextricable nexus between this issue and the Applicant’s first ground of challenge. In my judgment the substance and contours of the Applicant’s improper purpose case confirm that an appeal to the FtT, pursued out of country, is a demonstrably superior mechanism for this species of challenge than an application for judicial review which, as has been repeatedly observed, invokes a judicial supervisory jurisdiction and is not an appellate process. The presentation of the Applicant’s case involved a detailed, forensic examination of the Secretary of State’s evidence, coupled with a lengthy exposition of the main issues raised in the expert report of Dr Harrison. I consider it appropriate to highlight what this judicial review hearing lacked: there was no examination in chief or cross examination of the Applicant or any witness on his behalf; nor was there any live evidence from any witness on behalf of the Secretary of State; and there was no examination in chief or cross examination of Dr Harrison or any other expert witness. All of these missing factors arise in a litigation context in which the bona fides and character of the Applicant are important issues. However, there was no opportunity to evaluate the Applicant’s demeanour or to assess his performance under cross examination.”
“[6] The generic witness statement of Ms Collings is made in the context of a regulatory era wherein the Immigration Rules and/or Home Office policies require large numbers of immigrants to demonstrate English language competence to a certain standard and via prescribed mechanisms. The ETS entity is one of a small number of Home Office suppliers of so-called “Secure English Language Testing” (“SELT”) and was appointed in 2011 following a procurement exercise. ETS notifies those examined of their grades by a certificate. It operates test centres where the requisite examination is undertaken. The Home Office has consistently been alert to the risk of fraud in this sphere. [7] The Home Office was first alerted to “ the potential issues with testing at ETS ” upon receipt of a letter dated06 January 2014 from the BBC. The makers of the “Panorama” programme claimed to have uncovered evidence of fraud which included the active collusion and participation of employees at the ETS test centres. The investigation focused on two specific centres. One of these is Eden International College, where the Applicant underwent his test. On06 February 2014 the Home Office made a public announcement that ETS testing in the United Kingdom was being suspended. At this stage ETS had been operating tests for almost three years. The Panorama programme followed, on10 February 2014 . The contents of the programme convinced the Home Office that there had been “ a serious breach of the licence and of use of the immigration system ”
“ ….. In relation to ETS test centres, individuals were able to pay to pass the English language test. Proxy test takers were seen taking the speaking element of the test and answers were seen read out from the front of a class supposedly taking a multiple choice element of the test. ”
“ Following the provision of this data the Home Office had a teleconference with ETS on 01 April [2014] . The discussion focused on the first batch of test analysis. ETS described that any test categorised as cancelled (which later became known as invalid ) had the same voice for multiple test takers. On questioning they advised that they were certain there was evidence of proxy test taking of impersonation in those cases. ” [Emphasis supplied.]
“ We recognised that where ETS had cancelled a test score because of impersonation and proxy test taking that test score had been obtained by deception. We further recognised that persons in that position who then used that test score had sought to obtain leave by deception. ”
“ Where the details of the certificate on the Home Office file matched those provided in the data from ETS as an invalid result, we undertook a consideration of all relevant factors (including for example possible human rights grounds) which might mean that removal was not appropriate. Where no such circumstances existed, we took a decision to remove the applicant …. under section 10(1)(b) …. ”
“[9] The second generic witness statement is that of Mr Millington. This discloses that his rank within the Home Office is that of Assistant Director, with current responsibility for the network of “ Sponsor Compliance Officers ” in certain parts of the United Kingdom. He had previously directed the unit which processed in country Tier 4 student applications. This confirms that there was a first phase, which dated from February to June 2014. At this juncture, it is appropriate to highlight the single piece of documentary evidence relating to the decision in the Applicant’s case which has been produced by the Secretary of State. It consists of a photocopied excerpt from a spreadsheet taking the form of a horizontal line containing six pieces of information: the “ETS Registration ID”, the Applicant’s first and last names, the test date, the Applicant’s date of birth and the name of the test centre. Neither the word “ invalid ” or “ cancellation ” or any derivative of either appears. [10] The active enquiries and other steps described by Mr Millington in his statement did not begin until June 2014, at which stage, accompanied by a government solicitor and a colleague, a visit was made to ETS headquarters in the USA. ETS is described as “ the world’s largest private non-profit educational testing and assessment organisation ”, administering approximately 50 million tests annually in 25,000 test centres in 192 countries. Its systems allow for the scoring of around 64,000 tests daily. It is also, supposedly, a “ world leader in respect of fraud prevention and detection ”
“ The basic technology extracts biometric features from an individual’s speech to generate voice print (the voice equivalent of a finger print). This voice print can then be run against samples to establish whether the sample is likely a recording of the same person who had generated the voice print or a different person. ”
“ The results …. were that matching samples produced values that were higher than values from the non-matching samples the majority of the time, with a less than 2% error rate …. ETS accepted that voice biometric technology is currently imperfect … too many false positives would fatally undermine the integrity of the voice biometric system …. ”
“ The electronic files generated at the testing stage required a two step audio conversion process ……….. ”
“ Tests from a test centre were batched into groups of 300 – 400 test takers … These audio files were then run through the voice biometrics engine. Each batch would take approximately two hours to process. The engine would compare each test to all other tests in that batch and flag all suspicious results (those that were a ‘match’) in line with the probability thresholds discussed above. The output would be a list of flagged cases ranked in order of the most likely match through to least likely. ”
“ They [ETS] acknowledged that the technology they used was imperfect and that samples could be incorrectly flagged as matches (i.e. false positives). This could occur due to noise in the background of a recording (e.g. an air conditioning system) or the detection of another noise in the background which matches another test taker (although ETS notes that test takers should not be sitting so close to one another that they can overhear each other’s responses). ”
“ It was very clear to me, from the samples I heard, that those samples were of the same person speaking. I was able to compare tone, accent and the distinctive and instinctive expressions used to fill hesitations in speech. ”
“ During the demonstration, the senior analyst advised that the OTI were constantly updating their guidance and sharing information to ensure that analysts could hone their skills. For example , they shared the distinctive use of particular idioms, verbal tics and/or answers being structured in exactly the same way between test takers. We were also advised that, in order to maintain accuracy, analysts were encouraged to take regular breaks and every effort was taken to avoid an analyst dealing with the same testing centre or the same questions repetitively. ” [My emphasis.] There is an unmistakable self-serving element in the averments which follow: “ ETS statistics bear out the underlying reliability of the voice biometrics technology. Of over 33,000 possible matches identified by the system 80% were confirmed after human verification. As already discussed, many of these ‘non-verified matches’ would have been because of the presence of noise in the background of recordings. The analysts adopt an approach whereby any doubt about the validity of a match will result in it being rejected. I am confident this mitigates significantly against the risk of a false positive. ” [Emphasis added.]
“ ETS have identified thousands of cases where speech samples display marked similarities, leading OTI to believe an imposter was involved and in such cases scores will be cancelled. Within the tests analysed the OTI has identified many instances where the speech sample indicates the same individual has taken tests in place of numerous candidates. Where a match has been identified their approach is to invalidate the test result … ETS has informed the Home Office that there was evidence of invalidity in those cases. ”
“ Where a match has not been identified and verified, an individual’s test result may still be invalidated on the basis of test administration irregularity including the fact that their test was taken at a UK testing centre where numerous other results have been invalidated on the basis of a ‘match’. In those cases the individual would usually be invited to take a free re-test. These cases are clearly distinguished by ETS in its spreadsheets provided to the Home Office from tests where there is substantial evidence of invalidity. ”
“[ 17]. The report of Dr Harrison contains a series of assessments, commentaries and opinions which are susceptible to the following breakdown: (i) In criminal proceedings the mechanism commonly employed is that of “forensic speaker comparison analysis” which he describes as generally recognised and employed throughout much of western Europe. It involves: “ Analysing different aspects of the voice and speech patterns found in a recording. The profiles of the features that are found are then compared across the recordings. The analysis process usually takes between 10 and 15 hours for a comparison of two samples. ” (ii) The editing of audio files prior to expert analysis is standard practice. (iii) Segmental analysis of speech samples is carried out in accordance with the methodology approved by the International Phonetic Association and is designed to identify the “ fine-grained nuances of speech ”. (iv) The mechanics of analysing voice quality, pitch, intonation, rhythm and tempo form part of the exercise. (v) In appropriate cases, it is also necessary to examine patterns of language and grammar or to undertake acoustic-phonetic analysis or other specified forms of analysis. (vi) Automatic speaker recognition systems have the modus operandi of “[taking] the recorded voices of individuals, [performing] complex mathematical operations on them and [reducing] them to statistical representations or models. ” (vii) “ The results produced by automatic systems are numeric scores which reflect the degree of similarity between two samples – larger numbers reflect great similarity and smaller numbers reflect a greater dissimilarity between samples ….. changing the threshold alters the errors rates of the system since results from some pairs will change from a yes to a no or vice-versa ….. as the threshold increases the false negative error rate increases whilst the false positive error rate decreases …. Therefore the choice of threshold is crucial in determining the errors rates and performance of the system ”. (viii) Thus under automatic speaker comparison systems both false positives and false negatives are possible, with the consequence that “ for a quoted error rate to be meaningful, the type of error that it refers to must be stated ”
“ … although the analysts only verified matches where they had no doubt about their validity – i.e. where they were certain about their judgments – this should not be taken as a reliable indicator of the accuracy of those judgments. This approach does not remove the risk of false positive results. ”
“ The calculation of the number of false positives using the method proposed [in the questions posed] will always result in a higher number of false positives than the method I have used because the number of non-pairs will always be greater than the true-pairs. Therefore, my method is conservative in estimating the number of false positives since this is calculated from the number of true-pairs which is always smaller. ”
“ Without this information it is not possible to provide a detailed objective assessment of the overall reliability of ETSs method and the likely number of false positive results, i.e. how many tests considered as verified matches were not the result of a fraud …. Since there are an unknown number of false positive results, there are also an unknown number of test takers who have been incorrectly identified as having fraudulently taken the TOEIC test. At present, for any specific case, there is no independent way to assess whether the individual in question committed fraud or whether their result is a false positive. The only information available is the verified match result from ETS. Since the performance of ETS’s process is unknown it is not possible to assess the degree of confidence that can be placed in the results provided by ETS. ”
“ You are seeking entry as a returning student and you were given leave to remain until08/10/2015 as a student but I am satisfied that false representations were employed or material facts were not disclosed for the purpose of obtaining your previous leave to remain here as a student. Therefore in your case the current leave that was granted should be cancelled. This is because you were required to submit, as part of your application for leave to remain as a student, a valid certificate showing you had properly attended an English Testing Centre and taken a test is listening, speaking and writing English …… I am satisfied that you obtained your English Language Certificate by deception and have written evidence to substantiate this ….. After an investigation into the circumstances of how you obtain your particular English Certificate it has been found to be fraudulently obtained. ”
“ The immigration officers said that they are satisfied that I am a genuine student and that my command of English is very good. However they said that since I had taken a TOEIC exam, they had no choice but to cancel my visa. He also advised me to go to Court and to prove that I did not cheat. ”
“ Someone from ETS finally assured me that they would verify my certificate but would do so only if my lawyer writes to them. ”
“ I have reason to believe that you made false representations in order to obtain your leave to remain, because I am satisfied on a balance of probability that you have fraudulently obtained your ETS English Language Certificate submitted as part of your application for leave to remain in the United Kingdom …. your ETS Certificate is deemed to be invalidated …. The Home Office were able to confirm that the passenger’s English test which he had sat in the UK on22 February 2012 had been marked as ‘Invalid’. See Appendix A. The background to the HO’s decision are [sic] explained in the witness statements provided by HO employees Peter Millington and Rebecca Collings (see Appendices B and C) ….. [The Appellant] was unable to recall the name of the test centre except that it was in London or even which area of London. Furthermore he was unable to recall the cost of the test. He insisted he had taken the test in person and took it over a two day period. ”
“ I remember that the test involved both speaking and listening elements. The listening and reading tests lasted for about 140 – 150 minutes (approx 02.30 hours) …. The TOEIC listening and reading test take [sic] about two hours. It was divided in two part/sections, approximately 45 minutes for listening and 75 minutes for reading. The TOEIC speaking and writing test take [sic] about 1 hour and 20 minutes. It was also divided in two sections, namely 20 minutes for speaking and one hour for writing. ”
“ The following grounds for the cancellation of a person’s leave to enter or remain which is in force on his arrival in, or while he is outside, the United Kingdom apply: (1) There has been such a change in the circumstances of that person’s case since leave was given that it should be cancelled; or (2) False representations were made or false documents were submitted (whether or not material to the application and whether or not to the holder’s knowledge), or material facts were not disclosed, in relation to the application for leave …. ”
“9. Burdens and standard of proof have progressively, and almost with stealth, become an established feature of decision making in the field of immigration and asylum law. Their emergence may properly be described as organic. They have featured particularly in cases where it is alleged by the Secretary of State that the applicant has engaged in deception or dishonesty with the result that the application in question should be refused. This discrete line of authority is not recent, being traceable to the decision of the Immigration Appeal Tribunal in Olufosoye [1992] IMM AR 141. In tribunal jurisprudence, the origins of this particular lineage can be traced to the decision of the House of Lords in R v Secretary of State for the Home Department, ex parte Khawaja[1984] AC 74 , which concerned the inter-related issues of procuring entry to the United Kingdom by deception and precedent fact in the Secretary of State's ensuing decision making process. It is well established that in such cases the burden of proof rests on the Secretary of State and the standard of proof belongs to the higher end of the balance of probabilities spectrum. 10. One of the more recent reported decisions belonging to this stable is that of Shen (Paper Appeals: Proving Dishonesty)[2014] UKUT 236 (IAC) . This decision is illustrative of the moderately complex exercise required of tribunals from time to time. Here the Upper Tribunal held, in harmony with established principle, that in certain contexts the evidential pendulum swings three times and in three different directions: (a) First, where the Secretary of State alleges that an applicant has practised dishonesty or deception in an application for leave to remain, there is an evidential burden on the Secretary of State. This requires that sufficient evidence be adduced to raise an issue as to the existence or non-existence of a fact in issue: for example, by producing the completed application which is prima facie deceitful in some material fashion. (b) The spotlight thereby switches to the applicant. If he discharges the burden - again, an evidential one - of raising an innocent explanation, namely an account which satisfies the minimum level of plausibility, a further transfer of the burden of proof occurs. (c) Where (b) is satisfied, the burden rests on the Secretary of State to establish, on the balance of probabilities, that the Appellant's prima facie innocent explanation is to be rejected. A veritable burden of proof boomerang! 11. Shen is preceded by a lengthy line of Tribunal jurisprudence to this effect: see JC (Part 9 HC 395 - Burden of Proof) China[2007] UKAIT 00027 , at [10]; MZ (Pakistan) v Secretary of State for the Home Department[2009] EWCA Civ 919 , at [25]; Mumu (Paragraph 320; Article 8; Scope)[2012] UKUT 143 (IAC) ; and Kareem (Proxy marriages - EU law)[2014] UKUT 24 (IAC) . In short, in cases of alleged deceit, the legal rules are well settled.”
“ At the end of the day the SSHD bears the burden of proof. This is a proposition which is uncontroversial and has been confirmed on many occasions. ”
“Although there is a single civil standard of proof on the balance of probabilities, it is flexible in its application. In particular, the more serious the allegation or the more serious the consequences if the allegation is proved, the stronger must be the evidence before a court will find the allegation proved on the balance of probabilities. Thus the flexibility of the standard lies not in any adjustment to the degree of probability required for an allegation to be proved (such that a more serious allegation has to be proved to a higher degree of probability), but in the strength or quality of the evidence that will in practice be required for an allegation to be proved on the balance of probabilities.”