TOEIC Visa Cancellations

Martyn Day Excerpts

Tuesday 4th September 2018 Westminster Hall

[Martyn Day (Linlithgow and East Falkirk) (SNP)]

It is a pleasure to serve under your chairmanship, Mr Bailey. I would like to point out that I have a personal family interest, more of which I will mention later.

I am grateful to the hon. Member for Ilford North (Wes Streeting) for securing time for this important debate and for his excellent opening contribution. I am also grateful to Migrant Voice for its report entitled, “I want my future back”, and to the National Union of Students for its briefings, as well as the work of Mr Lewis from the Garden Court Chambers, all of which has been referenced by earlier speakers and which highlight the injustices and human costs of the situation. Perhaps those costs were best summed up by the hon. Member for Ilford North when he described the position of those affected as that of being in limbo.

We have heard from a range of speakers. The hon. Members for Poplar and Limehouse (Jim Fitzpatrick), for West Ham (Lyn Brown), for Bradford West (Naz Shah) and for Brentford and Isleworth (Ruth Cadbury) all made excellent first-hand contributions regarding their constituents. Indeed, I think we are all coming from the same page.

I first encountered TOEIC cases shortly after I was elected in 2015, when I met a native English-speaking—I stress that point—constituent whose indefinite leave to remain application had been refused because he had sat an ETS test. I was disappointed by the Home Office’s handling of the case and by its handling of the process since, and I echo the calls of many Members for an independent inquiry.

I start by stating that it is absolutely clear and not in question that a number of individuals cheated. Such fraud must never be tolerated and those responsible should be prosecuted wherever possible. Given the failings of the US organisation, Educational Testing Service, the Home Office was correct to remove it from the list of approved TOEIC test providers. However, what is in question is the heavy-handed nature of the Government’s response to the cheating, with their revoking of at least 36,000 visas by the end of 2016 when recording stopped, and the estimates of thousands having been falsely accused and deported as a result. The impact on many of those affected has been devastating, with reputations ruined by the allegations of cheating, as well as severe financial hardship, family upheaval and ongoing distress. This is a clear example of the Tories’ hostile environment policy on immigration, and there are serious questions about the process the Home Office followed.

What I cannot understand is why individuals were not simply given the opportunity to redo a TOEIC test at the time, which would have avoided a lot of unnecessary cost and distress for many individuals. Indeed, the right to resit the test is a key recommendation made by Migrant Voice, and one that I endorse. I trust the Minister will address that in her summing up. At the very least, the Home Office should recognise applicants’ right to appeal from within the UK. According to research conducted by Migrant Voice, all those students it questioned stressed the unfairness of not even being given the chance to defend themselves and prove their innocence within the UK. None of the respondents was given an in-country appeal right, while the reality of conditions in the countries of many of the applicants would make it impossible for them to appeal. Most of the students affected are from Bangladesh, India and Pakistan, and I wonder what the lasting reputational damage to the UK will be. It can be no surprise—I think there is definitely a connection—that the number of student applications from India is barely one third of what is was before this situation arose.

Despite a Court of Appeal ruling, the Home Office continues to insist that applicants must appeal accusations of cheating from abroad via video link and forces them to leave the UK, which is unacceptable. If someone was accused of a criminal offence they would have their day in court with the right to see the evidence against them and the ability to defend themselves, and so should those affected by the TOEIC cancellations. It is a matter of natural justice.

Members might have met my partner, Nadia, who is a regular visitor to Parliament—she is here today—and has given evidence to the Home Affairs Committee. She is from India and was falsely accused of cheating having sat an ETS TOEIC test. She had her visa revoked as a result, even though she had never used the test to support her visa applications in the UK. She used the more detailed IELTS—she passed the test on two occasions. She had also qualified with a masters degree in information management in the UK, in English. That did not stop her being accused and arrested. When she was interviewed by an immigration officer, he said that her English was as good as his. It might even be better than mine. She clearly understands English and speaks it well. She often corrects my grammar when she gets advance sight of my press releases and speeches. Unfortunately, the Hansard guys will have to do this one on their own.

Through Nadia, I have gained a real understanding of the personal impact this Home Office policy has had on those affected, and I have met many other victims. Like other speakers today, I have conversed with those affected, who have all done so in perfectly good English. I speak only English, so if they did not, I would not understand them. They have conveyed the trauma of living in fear of arrest and deportation with no way of supporting themselves financially. They have been living on the good grace of friends and relatives, suffering from stress and seeing relatives and loved ones overseas via Skype only. The situation has gone on for three or four years. They all have one simple wish: to clear their names and continue living without the stigma of these allegations.

One of the greatest areas of concern I have relates to the accuracy of the evidence relied upon by the Home Office when revoking visas. The hon. Member for Ilford North has already mentioned Patrick Lewis from Garden Court Chambers, who represented several of the affected claimants and overturned the Home Office’s ruling in each case. He said:

“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 I have encountered in over 20 years of practice.”

I would be glad to hear from the Minister about what she plans to do to tackle that injustice.

The Migrant Voice report noted that:

“Some students were accused of cheating in a city or place they have never visited, or of taking the test on a date on which they did not take it. One student who has never ever taken the TOEIC test was among those accused.”

We know that the Home Office instructed ETS to use voice recognition software to check test recordings, but there is a serious credibility issue with the ETS evidence. ETS records for certain students are linked to the wrong test centre or the wrong date. The National Union of Students briefing that was sent to Members highlighted cases where those who had legitimately taken the test had had their recordings deleted. The briefing from Mr Lewis from Garden Court Chambers details the evidence experts gave to an immigration tribunal, and I noted that in every instance of fraud, test centre staff were involved. It seems bizarre that the Home Office continues to trust without question the evidence supplied from ETS while simultaneously having no confidence in ETS to run any future TOEIC tests. It would be far more reasonable to have no confidence in the evidence.

Too many innocents have been affected by the process. They have all suffered severe financial loss. For many, it is not just their own personal loss, but that of their families and members of their community. Even once their immigration status is resolved, they will face difficulty in rebuilding their lives. Imagine what a three or four-year gap in a CV looks like to a potential employer. That is what they face. Given the length of time the cases have taken, these people clearly should have the right to study and work until they are resolved. Fundamentally, everyone should have the ability to challenge the decision. Will the Minister spell out exactly what the Government plan to do to enable those wrongly accused in this process to have their names cleared? I hope the answer is re-testing and giving all applicants the right to appeal within the UK.