Asylum seeker can be deported after cheating in English test
A Bangladeshi immigrant could finally be deported from the UK 13 years after he cheated in an English language test.
Md Adbur Rahim, 37, was accused by the Home Office of using a proxy to take the English test for him in 2012 which resulted in his application for indefinite leave to remain in the UK being rejected.
His deception was uncovered after a BBC Panorama documentary found widespread cheating at test centres and led to thousands of results including Mr Rahim's being declared invalid.
He appealed the refusal of his application, insisting he had taken the test himself, beginning a legal saga which went all the way to the Court of Appeal.
Now, Upper Tribunal Judge Bulpitt has ruled that it was 'highly probable' Mr Rahim used a proxy for the test and the Home Office was right to refuse his application.
Mr Rahim's claim highlights the lengthy legal battles by illegal migrants that has seen the backlog of immigration appeals rise to a record 41,987 outstanding cases. The Government has pledged to clear it by halving the time it takes for them to come to court to just 24 days.
Mr Rahim first came to the UK in 2007 as a student and was able to extend his leave until October 2014, when an application to extend was refused. While waiting for the appeal in that case to be heard, he launched a fresh application for indefinite leave to remain in October 2017 on the basis that he had been in the UK for a decade.
That application was denied by the Home Office a month later on the basis Mr Rahim had previously used 'deception' to obtain leave to remain by getting a proxy to take an English language test required for his October 2012 application to extend his leave.
This refusal then kickstarted a seven-year legal battle between Mr Rahim and the Home Office which went to the Court of Appeal.
It started in the first-tier tribunal in December 2018 where the court was told he had taken a Test of English for International Communication administered by the Educational Testing Service (ETS) in 2012. But the Home Office produced evidence to show Mr Rahim's test had likely been taken by a proxy and was therefore invalid.
The tribunal concluded the burden of proof was on Mr Rahim to show he had taken the test himself but they found no 'cogent' evidence this was the case and upheld the refusal. Rahim was not allowed to appeal and then applied twice, unsuccessfully, to take his case to the upper tribunal.
When his second application was denied he sought a judicial review in the Court of Appeal. This was initially refused but he he was then allowed to appeal that decision and it was decided that the first-tier tribunal had made an error of law concerning the burden of proof.
In January this year, the case was heard by Judge Bulpitt to determine whether the decision needed to be remade by the upper tribunal. He concluded that it did.
In April, Judge Bulpitt heard the full case including that in February 2014 a BBC Panorama programme had exposed widespread cheating at centres run by ETS which sparked a Home Office investigation.
Officials used 'voice biometric technology' to compare matching voices from different tests, a clear indicator that a proxy had been used.
On the day Mr Rahim supposedly took the test at the London College of Media and Technology in London. One hundred and thirty one tests were later found to be invalid, including his, and the rest of the 159 taken were recorded as questionable.
Mr Rahim told the court he had taken the test himself, relying on a witness statement from 2018 describing his journey to the test centre and the room itself. But he could not provide evidence from anyone who he claimed had recommended the centre to him.
Judge Bulpitt found his evidence to be 'wilfully vague' compared to the 'compelling' case offered by the Home Office that the Bangladeshi had used a proxy to conduct the test and therefore the Government was right to refuse his application.
He said: 'Overall, we found [Mr Rahim's] account to lack transparency, to be wilfully vague and to lack support in circumstances where supporting evidence especially from his partner could reasonably be expected.
'In contrast to that weak evidence we found the [Home Office's] evidence that [he] used a proxy for his test to be compelling, noting the high instances of fraud at the particular centre used by [Rahim], the appellant's exceptionally high score and the highly probable conclusion reached following the ETS testing that the voice records reveal that [he] used a proxy.'
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