TOEIC Visa Cancellations

Naz Shah Excerpts

Tuesday 4th September 2018 Westminster Hall

[Naz Shah (Bradford West) (Lab)]

I congratulate my hon. Friend the Member for Ilford North (Wes Streeting) on securing this important debate. I reiterate the thanks to my right hon. Friend the Member for East Ham (Stephen Timms), who is not here, for all his work, and to the many others who have spoken passionately.

When I was on the Home Affairs Committee, we took evidence from many students. I was part of the evidence session when students came to give evidence about the impact this had on their lives. That impact continues. It is no laughing matter. One wonders what to do when one hears such raw evidence. We have just had the urgent question on Windrush. There appears to be a shadow hanging over the Home Office today. We have seen that for quite a while in relation to the hostile environment. At the end of my speech, I will ask some questions I hope the Minister can answer.

The hostile environment policy has extended to students. The Home Secretary has committed to move away from this shameful discrimination and has taken steps to offer remedy to the Windrush generation, which has suffered greatly. We are still waiting, however, for the Government to offer a concrete resolution to those unfairly affected by the TOEIC scandal. In many cases, the Government continue to fight judicially against individuals who have been accused. Financing such appeals brings to mind a bottomless pit, especially given what we have heard this week, which the shadow Home Secretary has responded to. Given the recent legal judgments that have lambasted the Government and ETS for failing to present any real evidence to support their actions, it is clear that many of those affected were treated unfairly, denied all natural justice and deemed guilty until proven innocent.

Some 56,000 students were accused of deception or potential deception while sitting the test—36,000 of them had action taken against them in one way or another by the Home Office, including the immediate cancellation of their visas. They were not given the evidence against them nor the chance to clear their name, and they received no help to survive legally in this country. They were simply told to go home.

To compound that appalling situation, many students were not even given the opportunity to contest the decision against them, even though they had been promised a chance to do so. The out-of-country appeal route that they were offered was effectively non-existent and it was certainly not robust enough to resolve the kinds of issues that these individuals had endured. Many of them would not have been able to access the relevant evidence against them, so they could not be involved in the hearings or give evidence themselves due to the unsatisfactory nature of the process.

In truth, it would have been better for those accused to have faced criminal charges, because at least they would have been entitled to see the evidence against them and contest it. However, the Home Office simply cancelled their visas, forcing them to leave the country or live in poverty with the accusations against them hanging over their heads, with some people wanting to hang themselves.

As the Home Office was well aware, when a visa was cancelled because of alleged fraud it was impossible for those affected to travel to any other country to study or work. In effect, the Home Office is responsible for curtailing not only people’s immediate livelihoods but the whole future for themselves and their family, not just in the country they had come from and that they had to return to with their heads hung in shame after being accused of fraud and cheating, but in any other country—they could not go to another country because they had been defamed by our country and our Government. If visas were cancelled because of alleged fraud, it was impossible for those affected to travel to other countries to study or work.

We must remind ourselves at every stage of this debate that, based on the evidence available to us, potentially thousands of people who were here perfectly legally and who had followed the Home Office’s rules will have faced untold misery. The collective punishment approach of the Government has been shown for what it is—deeply toxic, unfair and unjust. It has potentially ruined the lives of thousands of individuals who acted according to the rules. They placed their trust in a Government-approved and Government-sanctioned test, and the response of the Government has been to treat them with contempt at every step of the process.

The Home Office has clearly been too eager to accept the analysis of the Educational Testing Service. There is clear evidence of mislabelling and misattributing the voice recordings to the wrong individual or the wrong test centre. When those recordings have been disclosed to an applicant, they have invariably turned out to be wrong, but there has been no system in place to allow for the cross-checking of tests.

Experts, including those employed by the Home Office itself, have highlighted a number of ways in which students could have been deceived by the test centres themselves and proxies used without their knowledge or involvement. In any other situation, this would make those students victims and not criminals, but the Government continue to disregard both the expert advice and judicial judgments. Instead, they rely on the evidence provided by the fraudulent test centres themselves to decide on the guilt of individual students. Those test centres had a monopoly on testing, which reminds me of the Carillion fiasco—the Government often seem to be involved in such fiascos.

This is a clearly flawed process that has turned lives upside down, but still the Government persist and still they rely on unreliable evidence. Has there been any real attempt by the Home Office to understand how many people have been unfairly accused? Do we know the number of people who are involved? I would be interested to hear the Minister say how many students were able to retake their tests and how many were deported.

Although we recognise that there was fraud within the system of Home Office certified tests and testing centres, we must also acknowledge that potentially thousands of innocent applicants had their lives ruined for doing nothing more serious than unwittingly choosing the wrong test centre, and they now have no way of remedying that accident of fate. Fate led them to this country. They and their parents might have spent years and years saving up money to send them to a British institution to receive a degree from one of our universities that would qualify them to work anywhere in the world with its British “brand” of authenticity. And yet Britain failed them.

What resolution are the Government prepared to offer those students? After failures in court, will the Government continue to fight these individuals, or are they at least willing to listen and try to find a solution? Will there be a pot of compensation money for those who have been proven to have been mistreated by this Government? Will the Government finally commit to allowing these individuals the tools they need to have a fair and just chance of clearing their name, or will they continue with a decision that was politically expedient due to its “hostile character”, which victimises those who may only be guilty of being in an unfortunate circumstance?

In conclusion, I have some questions for the Minister. First, did these numbers contribute to the targets that were set by the Home Office? The targets I am referring to relate to the resignation of a previous Home Secretary, the right hon. Member for Hastings and Rye (Amber Rudd). Secondly, will the Minister now take this opportunity to apologise for Home Office mistakes? Such an apology was rightly offered to the Windrush generation and one should be offered to these students, who have been affected by the Government’s failure, the Government’s monopoly and the Government’s unfairness.

--- Later in debate ---

[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.

[Naz Shah]

Does the Minister know how many people have been successful in their out-of-country appeal? Have those who have been successful been offered compensation for the Home Office’s mistakes?

[Caroline Nokes]

The hon. Lady asks whether the Home Office has offered compensation. We have not, because what we have seen in successive High Court judgments is that our ability to rely on an accusation of fraud was appropriate. We heard a lengthy quote from a senior High Court judge, who, it is interesting to note, said in a subsequent case that new evidence that the Home Office had provided was focused and much more substantial. That same judge also found that evidence was sufficient to make our accusation of fraud.

[Caroline Nokes]

The Home Office has enabled people to take cases to judicial review. The Home Office has established that we can rely on the evidence of fraud that we very clearly have, and the links to criminal gangs. It is important that we recognise that there was significant, widespread and indeed very lucrative fraud taking place in these cases. Our enforcement investigations uncovered evidence of impersonation and of proxy test-takers. I very much regret that this has happened. Innocent applicants may well have been caught up in widespread fraud, but we also have reports from judges that there were a number of different reasons why individuals might have undertaken the deception, even if they spoke very good English.

[Naz Shah]

Will the Minister give way?

[Caroline Nokes]

I have given way plenty of times. I am very clear that we have acted proportionately, both in initial actions and in response to the Court of Appeal’s verdict. We are right to continue acting on these cases.

The Government are committed to the principle of a fair immigration system, which welcomes highly skilled migrants and genuine international students, and we have heard a number of points about the attractiveness of the UK to international students. We know that the number of overseas students applying for tier 4 visas is up and there has been an increase in the number of visas granted, including 9% more from Chinese nationals and 32% more from Indian nationals. The UK remains an attractive place for foreign students to come to. We welcome highly skilled migrants and genuine students, while guarding against attempts at abuse. We have significantly strengthened our secure English language testing regime to ensure the issue cannot be repeated in future, and have put in place additional features to make sure that we clamp down on abuse by non-genuine students.