Our client, appealed against the Secretary of State’s decision to cancel his Tier 2 leave. The allegations were that the appellant fraudulently obtained the test of English for International Communication Certificate from Education Testing Services Limited (ETS) on which he relied on to obtain his Tier 2 visa.
On 25th March 2015 the Tribunal directed that the Respondent serves the evidence relied on that the TOEIC certificate submitted was fraudulently obtained. On 12th June 2015 we received the Respondent’s appeal bundle which included generic evidence relied on in many of these ETS cases. We submitted that the Respondent failed to establish, the burden being on her, that deception has been used to obtain the certificate.
The case was heard at Hatton Cross on 16th June 2015 and the Immigration Judge found that the Secretary of State has not discharged the burden of proof in relation to the allegation in respect of deception. It is the Secretary of State who must prove that the ETS certificate was obtained via the use of a proxy on the balance of probabilities and the specific evidence in relation to this appellant was unsatisfactory. In particular the Judge noted that the Home Office was directed to provide further evidence to substantiate the allegation in respect of this appellant and despite this direction the Home Office has not provided any evidence of the speaking element of the appellant’s TOEIC test. The Judge found that since this evidence has been analysed it must be available. The Respondent has failed to provide any evidence to the batch analysis in respect of this appellant of the human verification process in respect of this appellant. The Judge found that when such a serious assertion is made by the Respondent, individual evidence must be presented relating to the appellant to demonstrate that the appellant has used dishonesty and had the intention to deceive. Having considered all the evidence the Judge was not satisfied that the English language testing certificate was obtained by using a proxy test taker and the appeal was allowed.