The recent DK and RK decision that there is nothing wrong with the government’s generic evidence pointing to individuals having cheated on their English language test is “authoritative”, the Court of Appeal has held. The case is Secretary of State for the Home Department v Akter & Ors [2022] EWCA Civ 741.

Ms Akter had won her appeal against removal from the UK as a TOEIC cheat on the basis that the First-tier Tribunal had failed to give proper weight to a report by MPs casting doubt on the government’s approach to establishing fraud in such cases. But in DK and RK, the Upper Tribunal found that “there is no good reason to conclude that the evidence does not accurately identify those who cheated”.

That made Ms Akter’s life difficult. Her counsel gamely argued that DK and RK wasn’t all that weighty a precedent: although a reported decision, it was not starred or country guidance. But Lady Justice Macur held that the Upper Tribunal had given the issues a “forensic examination” and its judgment was “authoritative in this regard”. Ms Akter being labelled as a cheat on the Home Office/ETS system was “was sufficient to discharge the evidential burden, and there is a case for [her] to answer”. So while her case will now go back to the Upper Tribunal to be reconsidered on other grounds, she can no longer argue that the First-tier Tribunal “erred in giving little evidential weight to the opinions and recommendations” of the MPs’ report.