Dear friends, this is a rather belated update on the current state of the TOEIC deception allegations, and what those affected could/should do now, after Qadir/SM judgement has finally been reported. As it happens, my laziness worked wonders – while I was dragging my feet writing this post, the issue around the initial decision to not report it, whether or not it was in fact a decision to not report or just confusion, has resolved itself. It’s now a reported and citable case.

Some of you may not yet know it, but I am a humble fan of Justice McCloskey, and have sat through most of Qadir/SM trial at the upper Tribunal — and, notably, pride myself at having predicted the judgement, more or less, exactly, in contemporaneous posts on my FB page. I also felt very happy that my public observations about how rubbish a witness SM was, had found full vindication also, a whole  para devoted to the same critique  in the judgement.

At least it did in the first draft judgement that someone PM’d me on the day — I hear there are now at least three versions in circulation, including draft, promulgated and reported, which is rather a bit of a mess, and the footnote changed thrice, but ultimately, the core of it remains. The change of footnote, although it made the impact sound more subtle, did not change the essence.

So I will now try to explain to you what it is, and what can be done now by different types of parties affected, and, importantly, what can I personally do for you if you are affected. I feel it is only feasible to do it as a numbered list of observations.

 

1 – The heated discussion around whether Qadir/SM  would be reported or not, unearthed principal misunderstanding about its meaning, which is apparently prevalent even among the members of the mysterious UT reporting committee (I wonder if Judge Southern is on the committee!).

The case, it apparently said, would not be reported, because it turned on  particular Appellants’ circumstances, more so than on quality of SSHD evidence.  To which everyone else answered – but McCloskey still said SSHD evidence was rubbish!

To which I said – AAAAAAAAAAAAAAAAAAAAAAAAAAAAA! Because none of those are technically true.

The judgement says essentially, that SSHD evidence is sort-of rubbish, but not completely, therefore it is enough to open the door to a deception allegation – BUT that each Appelant’s individual circumstances — not just Qadir’s, or SM’s, but any other of the 20 000 appellants – is capable of refuting this allegation successfully, by showing that the particular appellant had no motive, opportunity or propensity to participate in TOEIC fraud.

2 – Many folks on the Internet, I was surprised to see, think that it was a bad judgement for TOEIC appellants overall. This is not true. It is a good judgement, actually brilliant –  because it does a reasonably good job of keeping things in balance. Did you all expect the Tribunal to rule that all of the SHHD evidence regardless TOEIC allegations is rubbish, and therefore “everyone walks”? Tens of thousands of people back in? In the United States, this would have been the result, on this sort of evidence.

But here, I did not expect that — because the aim of the proceedings was clearly to provide a workable method to dispose of all these thousands of cases. Costly, but workable — and they can’t “all walk”. Why? Well, someone DID cheat on those tests!  Quite a few folks, probably — in all likelihood, not just the dozen or so filmed by Panorama undercover. Did the Home Office ever say there were 20 000 of them? No, not really.  I know it felt to most of those folks as if it did, but that was not the point. Bear with me.

Suppose maybe there were 2 centres that ran the scheme twice a week for two years, sitting 20 people per test (I don’t know any such numbers and merely speculate).  2x2x20x52=some 4000 folks. Maybe it was twice as much of half as little, I don’t know. Nor does McCloskey, or The Home Office, or BBC Panorama or, it seems, ETS. No one knows exactly how many. EVERYONE — including, notably, the Home Office — notionally understands that not all the people who took TOEIC ever, cheated on it. It is pretty clear however that these weren’t just 10-20 folks either.

So, a noticeable number of people who took TOEIC in the UK in those two years, cheated on it.  Maybe 5%. Maybe 10, 20, 25%. We don’t know for sure. But this country would never accept the verdict that lets these potential 5,000 people walk just because HO can’t get along with ETS anymore — not any more than we can, as HO suggested, let 15,000 who did not cheat, be deprived of access to justice. In the interest of justice, we have to allow ourselves to develop a method to tell the bad apples from the good ones. So whether or not it’s a good or bad decision, depends really on the kind of apple you are. Because all it does, it gives us this method.

3 – This decision is about burden of proof, or rather what we call “boomerang of proof”. Not to go into the level of legal analysis I am dismally incapable of, I will try to explain it in very simplistic terms.

There is not a burden on any applicant to the Home Office, or the Appellants here, to prove the negative in the first place. The burden is on the Home Office to prove that fraud took place, and it knows it.  The question of course is, what constitutes such proof.

This is a Law 101, and has been aired a lot during the public discussion surrounding this trial, that immigration is a civil matter and as such, burden of proof is “on the balance of probabilities” — eg the court must find that the allegation is “more likely than not” to be true. Proof “beyond reasonable doubt”, used in criminal cases, only applies where life or liberty of the individual is at stake, including restriction on liberty represented by say a minor conviction. It does not apply and never will apply in civil cases, or immigration cases. During this trial many asked — and I did too — how come do we still use civil standard of proof while a criminal  conduct, fraud,  is alleged?  But this was really just rethoric.

Indeed it’s alleged, but no one is trying to criminally convict these Appellants, and to simply argue that immigration consequences are so severe that they amount to criminal punishment, would be simplistic. Firstly, civil liability  for alleged criminal cases is nothing new even where criminal standard of proof has not been met (this happened to OJ Simpson in the US). It is only possible because when criminal standard of proof fails, lesser, civil standard may still stand.

I myself have blurted out to a few people earlier than Article 6 ECHR grounds should be added to their appeals, because due process is involved. Article 6 refers only to criminal trials, but this is not a standard of proof matter, this is a due process matter – and a little due process doesn’t hurt anyone, and does not alter the standard of proof. Due process is more about things like a right to confront one’s accuser and mount a defense, and could apply regardless of standard of proof. This judgement seems to somewhat achieve that.

Our immigration courts have recognised that a more stringent approach to meeting a “probability” treshold needs to be taken where allegations at issue are criminal in nature, even if trial is civil (I seriously doubt this “probability plus” concept would stand in the US, but here it seems to).

So this is what the trial was about. How much burden does the HO have to meet before the allegation becomes probable enough? And then, what if anything can each Appellant do, to then step in and prove their innocence?

4 – The first of these two questions remains the most controversial aspect of the judgement, and one on which I’d probably appeal if I were Malik and Biggs — but understandably, they were instructed by these two clients, and those two clients had every right to become disinterested, as they prevailed anyway. McCloskey rules, rather incongruently to his overall damnation of the SSHD evidence, that indeed it does sort-of meet the burden of proof in order to open the door to the allegation. But it is, he writes, so weak, that  it is capable of being refuted by every individual defendant’s evidence that makes it unlikely he or she was one of the bad apples.

I find it legally questionable — the burden is either met, or it isn’t. Refutation of the evidence designed to meet the burden should normally happen in such way as to prevent it from being ruled as met altogether, without creating the “boomerang of evidence”, when it suddenly falls on the applicant/appellant to prove it wasn’t him.  But in context of our immigration jurisprudence and in context of this case, I can sort of see why McCloskey decided this way.

To decide that the burden has not been met, would have been  equal to deciding that “everyone walks” — which wouldn’t be exactly justice, although arguably, the Home Office would have made this bed, by using exactly the same evidence in thousands of cases. So if it were ruled to have not met the burden in Qadir/SM, where star witnesses appeared on behalf of the HO personally, fuss has been made and videos played, then such ruling would have even more imminently collapsed every other TOEIC related decision in which SSHD had not gone even to remotely similar lengths. But that would put us as a society back at square one in trying to figure out where are the hundreds, maybe thousands of people  who indeed cheated. Who are they?    The decisions will have collapsed but the suspicion will have remained on everyone who ever took TOEIC, with possible result of remit across the board, sending them all back to the not-so-capable Home Office to sort out. In about 5 more years.

5 – So I sort of agree with the practical outcome, but I can see how it is legally inequitable, because the idea here is, that it is still possible to condemn  any number of people based on a universal set of evidence not specific to a particular person. Can the burden ever be met in this “blanket”, non-specific to each case, way?

In fact, if you believe the HO and subject to verification of these statements which I do not think McCloskey was very happy with, the HO did not in fact accuse everyone who took TOEIC,

They claim some differentiation took place, allegedly based on ETS voice testing software runs, themselves impugned. But the results apparently returned two levels of outcomes, and HO decided, pretty arbitrarily, to treat them differently, offering some people interviews and a shot at redemption at decision making stage, and condemning others blindly on the same computer “say so”.

The Tribunal was, as were we all, very unhappy with this aspect, as individual tapes were unobtainable, individual results verification non-existent, even the very en masse test results HO claimed it had were also not available, so it was clear that HO pretty much failed to  give anyone any chance or bother with specifics of particular cases. Yet, the tribunal ruled, they generally met the burden of proof.

The only way for me to rationalise this ruling is to assume it was given in a bit of an advance fashion,  McCloskey figuring that HO was probably capable of improving the evidence, if it had gotten round to it, reconciled with ETS, or got more experts. McCloskey does appear to make an overture to this. It didn’t exactly produce the evidence needed, but we can all take a wide guess what evidence may possibly exist that HO could get their hands on, if  push comes to shove. HO seems to now think that producing all of this on appeal will let them improve the burden of proof so much as to rule out any individual rebuttals, but I don’t think so — I think the decision as it stands was already given in advance reliance on this future proof.

In advance or not, but the tribunal ruled that all this sort of evidence achieves, presumably since it is quite weak and entirely non-specific to particular appellants cases, and while we all understand that actual cheaters were probably not even a majority of all those accused, is open the door to the allegation, sending the “boomerang of proof” back to the each of the accused, to prove that it wasn’t them. How can they now do it?

6 – Firstly, this ought not to be very difficult, if even SM did it, being a rubbish witness and all. Secondly, here we finally approach the area of the decision which in fact turned on the particular facts, and could turn either way on other facts. The importance of it is that based on Qadir, everyone now should have their day in court to try and prove it wasn’t them.

Will the courts believe?

Well, firstly, speaking English helps — but you don’t need to be a Shakespearean scholar. In fact, TOEIC was never an academic test (what idiot in the Home Office decided to approve it for the student visa purposes, for which ETS never intended it, would be a mystery, but the idiot was personally named in the decision, I think ). It is a very basic level test for workplace communication.  Many courts have not yet wisened up to it, but now they may. The first question I would ask if I sat in the Tribunal, would be — what motivated this person to take TOEIC at the time of their life when they did it?

I had people approach me at the trial who said they took TOEIC during admission to law school. In fact that person had a law degree.  Ok, I suppose. But NEVER in the world would anyone take TOEIC for the purpose of study at a reputable university in a degree program. Doesn’t happen. Makes completely no sense from academic perspective and to any member of academic community. There are tests out there designed for academic study, including IELTS and TOEFL. If your English is too poor to sit either of those, you shouldn’t be in a University.

If they were studying ACCA or whatever else of that sort, like SM did – then maybe. If they were studying a below-degree qualification of a Foundation course — perhaps, although even then people take IELTS. But I would be hard pressed to believe that someone about to embark on  a legal career chose TOEIC as a way to boost it, for any other reason than an opportunity to cut a corner.

Secondly, did they speak English contemporaneously? How well? If they took contemporaneous tests around the same time, what were the results and how well do they correspond with the TOEIC result? It is plausible that someone who took IELTS and achieved a low score was able to then take a much easier TOEIC and improve is slightly. But not so as to achieve a near-perfect score.  If a person took IELTS and did passably,  although not great, would they have any sort of motive for then taking TOEIC and cheating on it? Did they work or study immediately before the test, and if yes, was it a professional job? Can their boss at the time write a letter confirming their level of communication ability? If they studied, is a tutor or professor onboard?

Thirdly, I think people who did not cheat need to attempt to organise in some sort of cohorts or online groups in this appeals process, based on time and place of their test sitting.  As was clear from Panorama, fraud involved entire sittings — and so, people who know they did not cheat and nor did people around them at the same time,  and it may be possible to rely on findings by HO or the courts in cases of those fellow test takers. This may eventually operate to “flush out” the tainted sittings (right now, HO appears to use a similar approach to entire test centres, but in reality it is more likely than not that they continued to also run normal tests).

These are the examples, but this is the direction you need to think about, if you want to challenge your TOEIC related case based on Qadir/SM.

Can I help you with any of this? Maybe.

I can help you if you have been affected by TOEIC deception allegations, and you are just about to enter, or still are,  IN THE APPEALS PROCESS. Not JR. This means that you have just been refused and looking to appeal, have filed initial notice and grounds and awaiting listing or awaiting hearing in FTT, not earlier than end of July, applying for permission to apply to UT, or awaiting substantive consideration of the APPEAL in the UT (not judicial review, which can also be in the UT!).

I am interested only in the cases that are going through the appeals, including out-of-country appeals, on substantive grounds related to the fact of cheating, eg where actual fact of cheating is at issue (previous deception refusals, character suitability refusals).

Also, please note that in terms of Nationality reconsiderations on TOEIC-related issues,we may have to see how a case on this in which Malik has received permission to apply recently, plays out.  Again, he is leading the challenge to a nationality refusal on TOEIC basis, presumably using Qadir/SM as a base argument, so that sort of remains to be seen, but reconsideration requests should still be filed and I may be able to help you.

If you think you can plausibly have a defense under (6) above and gather relevant evidence, then please get in touch using instructions and details on “Can I help you?” page. Keep in mind, you first have to convince me that you did not cheat — so if I suspect otherwise, I will not represent you — it would simply be unethical, as these will be factual cases and lawyers have lower chance of convincing a court of something they themselves do not believe.

Also please write if you are NOT currently represented by a solicitor, PA barrister, OISC advisor or whomever that could help you, or you absolutely cannot afford to continue that representation for financial reasons (I may help for free). My help is a substitute for you doing it yourself, but with almost any other law office that is most likely better equipped for litigation, you will do better or just the same. I am a sole practitioner, I work myself, and administrative overhead involved in litigation overwhelms me.

 

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