TOEIC Visa Cancellations

Lyn Brown Excerpts

Tuesday 4th September 2018 Westminster Hall

[Wes Streeting]

I am grateful for that intervention. There is some complexity—as I acknowledged, there is no doubt whatsoever that some cheating took place, which is clearly serious—but we must distinguish, and allow students to distinguish, between those who committed genuine wrongdoing and who deserve to be punished, and those who have been caught up in a scandal not of their making. That is the distinction I wish to draw in the debate, which the Home Office has failed to do. In the vast majority of cases, students were told that they had no right to appeal in the UK and that they should leave the country.

The experiences of students whose test results were deemed invalid by ETS varied considerably depending on when the Home Office took action and where those students were at the time. The hideous complexity I have alluded to is thrown into sharp relief by an excellent briefing by the National Union of Students, with the support of Bindmans. In some cases, it appears that the Home Office directed further and higher education institutions to withdraw students from their course of study and told students that they had 60 days to find a new sponsoring institution or to leave the country. Of course, having effectively been blacklisted by ETS and the Government, they invariably failed to do so. By handling cases in this way, the Home Office placed students outside the usual immigration processes without the right to appeal either in country or out of country.

That approach was found to be unlawful by the upper tribunal in the case of Mohibullah. The Minister should tell the House how many students fell into that category and what steps the Home Office has taken in light of the judgment in that case to contact other students who were similarly mistreated and, most importantly, to reassure the House that such an attempt to circumvent properly agreed immigration processes will never happen again.

Students who were outside the UK at the time of Home Office action, who received notices informing them of the allegations against them upon their return to the UK prior to 6 April 2015, were served with notices at airports and prevented from resuming their studies pending their appeal from within the UK. In some cases, students were subjected to interview and detention. For many students, that led to the end of their studies. However, the NUS,

“understands that in each and every case won by a student the Home Office appealed the outcome”.

The NUS also asserts that, where the appeals process led to a successful outcome for students,

“the Home Office has been slow to provide a remedy”

to the student concerned, effectively leaving them in “limbo”.

Is that right? Did the Home Office really drag every single case in this category through the upper tribunal and onward to the court of appeal? Perhaps the Minister can tell us how many cases we are talking about, how many appeals were successful and how much this lengthy process has cost the taxpayer. It is only reasonable to ask how long it takes, following the successful conclusion of an appeal, for the Home Office to ensure that successful appellants are given the right to remain in the UK.

For students who were in the UK at the time of Home Office action, their right to appeal varied according to when the action took place. From 6 April 2015, students were subjected to rules under the Immigration Act 2014, which removed the right to appeal, with only limited exceptions for human rights arguments deemed worthy by the Home Office. Prior to 6 April 2015, students were served with section 10 notices under the Immigration and Asylum Act 1999. Effectively branded cheats by Her Majesty’s Government, they were told to leave the UK immediately, and that they could only appeal from their country of origin. The students took their fight for an in-country appeal to the courts. In the case of Ahsan v. Secretary of State for the Home Department, the Court of Appeal ruled in favour of students’ right to appeal in the UK, finding that an out-of-country appeal was an inadequate legal remedy.

How much did that cost the taxpayer? How much of the UK taxpayer’s money has the Home Office wasted in trying to stop students gaining proper access to the appeal to which they are entitled? Schools in my constituency are sending begging letters to parents to meet the cost of basic materials. I have countless examples of people having to fight tooth and nail to get social care for their elderly parents. I have community policing that only exists on paper and in the speeches of politicians because the Home Office has cut police budgets; but apparently the Home Office has a bottomless pit when it comes to dragging international students through lengthy, costly and pointless legal action.

In response to a written parliamentary question from my right hon. Friend the Member for Leicester East (Keith Vaz), the Minister’s predecessor, the right hon. Member for Great Yarmouth (Brandon Lewis), claimed that he was unable to tell the House how much public money has been spent on court fees involving TOEIC cases,

“because Home Office data systems are unable to disaggregate costs”.

That tells us quite a lot about cost control and value for money deliberations in the Home Office. Ministers should know how much this has cost, and they should be accountable to taxpayers for it.

What we have seen through those cases has made it clear before the courts and tribunals that innocent students have been wrongly caught up in a scandal that was not of their making. I am enormously grateful to Garden Court Chambers for the thorough briefing it provided to hon. Members in advance of this debate, to give us some examples. When the scandal was exposed by “Panorama”, the Home Office’s response was to delegate the identification of those who used a proxy to ETS. The very organisation that had failed to properly oversee the test centres—the organisation the Government had deemed unworthy of Government accreditation—was none the less entirely trusted, it seems, to oversee this process.

[Lyn Brown (West Ham) (Lab)]

You can see the logic.

[Wes Streeting]

Absolutely; it beggars belief. But do not worry, folks, because the Home Office ensured that two senior officials had oversight of the process. That was hugely reassuring—until, of course, those same Home Office officials responsible for supervising the process gave evidence before the president of the immigration tribunal, a senior High Court judge. His criticism was remarkable, and I am sure the House will indulge me while I read what he said in the course of judging that case. I will not name the officials, because they do not have the right to reply. The shambolic mess of the Home Office tells us that it is probably not their individual responsibility, and the judge said in the case of both those senior officials that they gave truthful evidence.

However, the judge also said that,

“this neither counterbalances nor diminishes the shortcomings in their testimony.”

He said:

“Neither witness has any qualifications or expertise, vocational or otherwise, in the scientific subject matter of these appeals, namely voice recognition technology and techniques…In making its decisions in individual cases, the Home Office was entirely dependent on the information provided by ETS. At a later stage viz from around June 2014 this dependency extended to what was reported by its delegation which went to the United States…ETS was the sole arbiter of the information disclosed and assertions made to the delegation. For its part, the delegation—unsurprisingly, given its lack of expertise—”

this is what the judge said—

“and indeed, the entirety of the Secretary of State’s officials and decision makers accepted uncritically everything reported by ETS.”

This is absolute amateur hour at the Home Office. How on earth, in a case of this nature, involving fraud and electronic tests, would someone at the Home Office—probably paid a significant amount of money at our expense—ensure that there was adequate expertise to properly judge, in life-changing decisions about individuals, whether the evidence presented was enough to deny them their right to study in the UK? It is outrageous; coupled with the fact that these people have in many cases been deported on the basis of this flimsy evidence, it is disgraceful. The whole process was also subjected to stinging criticisms by three independent experts, who gave evidence to the tribunal—again, before a senior High Court judge.

In evidence to the Home Affairs Committee, one of those experts, summarising the report of the three, said:

“We agreed that in any one testing session there could be a mix of genuine applicants and those who were paying for fraudulent results.”

He also said:

“It seems reasonable to conclude that the ‘ETS lists’ are not a reliable indicator of whether or not a student…cheated.”

Patrick Lewis, an immigration barrister with Garden Court Chambers, told the Financial Times:

“The highly questionable quality of the evidence upon which these accusations have been based and the lack of any effective judicial oversight have given rise to some of the greatest injustices”,

that he had,

“encountered in over 20 years of practice”.

In the case of one of my own constituents I have seen this gross injustice for myself. He is one of the students whose test results were deemed invalid by ETS. He had to fight tooth and nail to get basic details of the allegations against him. When he requested the audio clip that had been used to brand him a cheat, it was discovered that there were two tests associated with him—two tests, involving my constituent, that are meant to have taken place at precisely the same time. This student came to the UK having already completed the highly respected International English Language Testing System test with the British Council, yet we are supposed to believe that he felt it necessary to cheat his way through the TOEIC test.

The decision has thrown his life into chaos, which is how I arrived on this issue. He is unable to complete his studies and get on with his life. His mental health has suffered. He is worried about his reputation back home, fearful that he will be considered a cheat because that is what the British Government has determined on the basis of this shambolic process. The irony is that the reputations of innocent international students are in tatters because around the world the United Kingdom is respected as a beacon of democracy and the rule of law, but what we see here is an affront to the principles of natural justice, with innocent students removed from our country without first giving them an opportunity to respond to the allegations against them. It is a disgrace. It should never have happened. There should be not only a fulsome apology, but immediate action to put this right. The family, friends and community back home of my constituent should be in no doubt about his innocence. I have no doubt about his innocence, and if our Government think otherwise they should meet the burden of proof and demonstrate his guilt.

My constituent is not alone. A Migrant Voice report reveals just how devastating this scandal has been to the lives of the international students caught up in all this, and we have heard them speak here in this very Parliament. They came to the UK, at considerable cost to themselves and their families, with the hope of experiencing a good education in a country renowned for its world-class universities. They have been robbed of that opportunity. They have been denied access to work, spent all their savings, relied on handouts from their family and friends and racked up debts in the battle to clear their name in a David v. Goliath contest, with poor old David cobbling together what he can to fund his legal action and Goliath funded by the taxpayer to unnecessarily drag these students through the courts. They have lost their right to rent. Their relationships have been placed under considerable strain. They have suffered mental ill health, heart troubles, hyperthyroidism and other stress-related conditions. All they want is the chance to clear their name, complete their studies and get on with their life and career.

Universities UK today published an excellent report about the importance of the contribution that international students make to the UK, not just to the economy but to our culture, enriching the educational experience of everyone at our world-class universities. I wholly endorse what Universities UK says about making it easier for students who come to this country to gain work experience after they graduate. However, how can we possibly expect the Government to take up such sensible recommendations when they treat students who are already here in such a disgraceful way? Universities across the world—in North America and Australia—are going hell for leather to grab the UK’s coveted place in the international student market and the Home Office is allowing them to run riot, diminishing our standing in the world and our ability to attract the very best students.

The Home Office and ETS—the grubby contractor at the centre of this scandal—have serious questions to answer about their conduct in all this. It is clear that the Home Office is persisting with creating a hostile environment for international students, hoping that, by dragging it out for as long as possible, it will cause students to simply give up and go home. The judicial criticism of senior civil servants’ and the Home Office’s approach should be a source of professional embarrassment for everyone involved; it is a global embarrassment to our country.

Prior to the summer, my right hon. Friend the Member for East Ham asked the Minister, and then the Home Secretary, to ensure that students whose visas were cancelled for allegedly cheating in the TOEIC test be allowed to sit a new test to resume their studies. On both occasions he was informed that that was being carefully considered, and that advice was being sought.

In closing, I offer some advice. We are now four years on from the “Panorama” investigation, and the Government have had long enough. Let these students sit their tests. Let them clear their names. Let them get on with their lives.

--- Later in debate ---

[Lyn Brown (West Ham) (Lab)]

It is good to be back here and speaking under your chairmanship, Mr Bailey. I hope hon. Members and all members of staff have had a fabulous holiday and have come back rested. I congratulate my hon. Friend the Member for Ilford North (Wes Streeting) on securing this debate. I echo his words about my right hon. Friend the Member for East Ham (Stephen Timms) and his valuable work on this campaign. I also pay tribute to Migrant Voice and, above all, those who have bravely spoken out about their experiences at the hands of the Home Office.

When the BBC aired the “Panorama” exposé about the test of English for international communication, the Home Office responded severely. It cancelled or refused visas for over 40,000 people in 2014 and 2015 alone. In a display of extraordinary cold bureaucracy—nowhere near natural justice—it prevented many of those students from appealing the decisions. Applicants were simply told that their claims were clearly unfounded. Cases were rushed through. The burden of proof fell on the defendants. The Home Office has admitted that much of the evidence against the students was “shaky”. These cases should have been reopened but were not. Like other hon. Members, I have been contacted again and again by constituents who have suffered utter humiliation because of this scandal. I want to give voice to a couple of those constituents’ stories today.

One man—I will call him Mr M—arrived in the UK in 2009. He undertook the International English Language Testing System exam before coming to the country, on which he scored a grade 6, which is defined as competent use of English. Mr M completed his undergraduate degree in business at the University of Sunderland and was pursuing his masters degree when he was summoned by the head of the business school about the TOEIC allegations. He undertook a 45-minute interview with the head of the business school along with his student manager. They bizarrely concluded that his level of English was proficient—who would have thought it! They left him to continue his degree.

Despite that, later that year, Mr M had his visa revoked by the Home Office on the basis of alleged cheating in the TOEIC test. As a result, he suspended his studies. In the years since he has repeatedly tried to appeal the allegations against him without success. The university has claimed the rest of his tuition fees, though he is not yet permitted to study there. He has spent his parents’ money as well as his own fighting legal battles and is now dependent on his uncle to support him. He has no right to rent or to work. He has told me that he has considered suicide. Four years of this young life have been wasted fighting a complicated and damaging legal battle over a one-year course—it is a travesty.

Another constituent of mine—I will call him Mr S—has a similar story. He came to study in 2009. He completed an undergraduate and a masters degree in business, the latter from a college of the University of Wales. In 2014, Mr S’s student visa was extended to permit him to specialise through postgraduate studies in business skills for the social care sector at the London School of Technology. In 2015, without any warning, the Home Office cancelled his leave to remain, on allegations of cheating in his TOEIC exam. Like Mr M, he struggled to appeal the decision, spending £20,000 over three years, slowly building up debts to family and friends all the while. For the last few years, he has attended the reporting centre every fortnight where he says he feels like a criminal. His relations with his family back home have been severely tested. They believe he won his degree through dishonesty. “Above all,” he says:

“I want our dignity back.”

Who can blame him? In both cases my constituents told me that they are yet to see a single shred of evidence against them.

Probably the most upsetting story I have heard so far is from a constituent who had completed his studies and was living with his British wife and child. They met while he was studying. He has been in the UK for almost 11 years. When the TOEIC revelations emerged, he was asked to sit a different test. After successfully completing a language test called English for Speakers of Other Languages—ESOL—his visa application was accepted. Despite that, one day he was dragged from his bed at 6 am. He was not given a chance to say goodbye to his wife and was detained for several days, unable to contact her. The Home Office justified this treatment on the basis that he had obtained his leave to remain through “deception”. His right to work has been suspended, he is speeding towards bankruptcy and he certainly has not got the money to pay for more proceedings. Like the others, he has had to borrow thousands of pounds from friends to pay legal fees. He now lives in constant fear of a knock on the door.

I could go on—I have a number of cases—but time is short. I am not the first to compare the dreadful mishandling of the TOEIC cases to the scandalous mistreatment of the Windrush generation. There are differences, but in both cases people have been separated from their families, detained and deported, their assets are stripped away and their sources of income removed. Some become homeless. In both cases, the blame falls squarely on the shoulders of the Home Office. Our constituents undertook tests run by the Educational Testing Service, a body approved and licenced by the Home Office. They should not be punished for doing something like that. It is shameful and unacceptable that this is going on.

My constituents and all of those affected by this treatment need to be retested fairly. At the very least they deserve an apology. This is an issue of justice and it is crucial for universities, our exports and our economy. International student numbers are now growing far faster in the US, Canada and Australia than here. It is easy see why. This is about our international reputation, how we are seen and how we see ourselves. The Home Secretary has been hesitant to express his support for migration targets. I hope that that shows us that change is coming.

Moving on by treating each group as an exception will not do. First Windrush, now TOEIC. Who is next? I have spoken before about trust. This Government’s hostile environment has destroyed trust for so many, especially in constituencies such as mine, where we are blessed with diverse communities, where our lives have been repeatedly enriched by migration. The Confederation of British Industry has recommended abolishing migration targets after Brexit, but this is about more than just business. It is about our fundamental values and justice.

--- Later in debate ---

[Caroline Nokes]

Unfortunately, I cannot provide a live update on criminal investigations, but I will write to the hon. Gentleman providing him with that information.

The majority of individuals linked to the fraud were sponsored by private colleges, not universities, many of which the Home Office had significant concerns about well before “Panorama”. Indeed, 400 colleges that had sponsored students linked to ETS had already had their licences revoked prior to 2014. ETS had its own licence to provide tests within the UK suspended in February 2014. That licence expired in April of the same year and ETS was removed from the immigration rules on 1 July 2014. Approximately 20% of the tests taken in the UK were provided by ETS prior to its suspension in February 2014.

Over the course of 2014, as we have heard, ETS systematically analysed all the tests taken in the UK dating back to 2011—some 58,458 tests. Analysis of the results identified 33,725 invalid results and 22,694 questionable results. People who used invalid ETS test certificates to obtain immigration leave have had action taken against them. Those with questionable results—more than 22,000 individuals—were given the chance to resit a test or attend an interview before any action was taken.

In appeals, we have sought to provide sufficient evidence to discharge the evidential burden of establishing that fraud was used to obtain a certificate from ETS. The courts have consistently found in our favour that our evidence for invalid cases is enough to act on and creates a reasonable suspicion of fraud. It is then for individuals, through either appeals or judicial reviews, to address that.

Before addressing some of the specific points raised, I add that the issues covered in today’s debate have been looked into very thoroughly by the Home Affairs Committee, which ran an inquiry in 2016. During that inquiry, Ministers and officials from the Home Office answered well over 100 specific questions, and those answers are still detailed on the Committee’s website.

Where we have made removal decisions against those with invalid certificates, we have ensured that any appeal against the decision is properly exercised after removal from the UK. Under the appeals regime that was in place in 2014, many of those who we believed to have committed fraud were given an out-of-country appeal. That had been the position since 2003. As a result of the Immigration Act 2014, there is now a right of appeal only where claims raising asylum, humanitarian protection or human rights issues are refused.

[Lyn Brown]

I have time for the Minister—I often find her speeches considered and reasonable—but I am struggling with what she is saying here. We know that there is a problem, and she is defending, it seems to me, taking people’s liberty away and threatening them with deportation, despite the fact that we know there is a problem with the process. I really want to hear an apology from her, and some understanding of just how unfair, unreasonable and unjust this has been.

[Caroline Nokes]

I am moving on to some additional comments, but we have heard today repeatedly the use of the word “deportation”. Those who have followed this matter carefully will know that deportation happens only to foreign national offenders. Those who have been subject to removals have been removed from the country, not deported. There is a very clear difference between those two scenarios that the hon. Member for West Ham (Lyn Brown) may not agree with, but it happens to be a fact.

The action that the Home Office took was based on information from ETS, but it is incorrect to suggest that we relied exclusively and unquestioningly on the material that it provided. Yes, a senior delegation from the Home Office visited the USA in order to obtain a thorough understanding of the process, but following that, and fully considering the seriousness of the issues for the individuals concerned, we commissioned a further independent expert report from Professor Peter French, chairman of J P French Associates, the forensic speech and acoustics laboratory, and professor of forensic speech science at the University of York, into the reliability of the evidence.

That report, unlike the report produced as part of earlier legal proceedings and quoted extensively in recent coverage of ETS issues, was produced with the benefit of additional evidence about the specific systems that it used to verify matches. With the benefit of more information, Professor French specifically concluded that findings that the previous expert made around high error rates in other models are not

“transferable to the ETS testing”

and that the number of false matches would in fact be very small. He concluded that the triple-lock approach that ETS took was much more likely to give people the benefit of the doubt than falsely flag people as having cheated. The courts, at every level up to the Court of Appeal, have consistently said that that standard of evidence is sufficient to justify making an accusation of fraud. It is then up to an individual to establish an innocent explanation for their involvement, and they can challenge the finding, where applicable, through a judicial review.

A number of Members mentioned the case of Ahsan and out-of-country rights of appeal. That case was indeed heard at the Court of Appeal last year, but did not look at the evidence that the Home Office had relied on to establish that fraud had taken place. The narrow issue that the Court looked at in the Ahsan case was whether an out-of-country appeal would be an effective remedy to the accusation of fraud. It concluded that, in such cases where there was no mechanism for the individual to give oral evidence, that was unlikely to be the case.

Since then, the Home Office has put in place practical arrangements, including video conference links from overseas, to enable appellants to give live evidence at their appeal. Those overseas with outstanding appeals can apply to the tribunal that is hearing their appeal to indicate if they wish to give live evidence. It will then be for the tribunal to decide whether the arrangements that the Home Office can put in place are sufficient or whether it is necessary for the individual to return to the UK.