TOEIC Visa Cancellations

Wes Streeting Excerpts

Tuesday 4th September 2018 Westminster Hall

[Wes Streeting (Ilford North) (Lab)]

I beg to move,

That this House has considered TOEIC visa cancellations.

It is a pleasure to serve under your chairmanship, Mr Bailey. I place on record my enormous thanks to my right hon. Friend the Member for East Ham (Stephen Timms), who has put in a huge amount of hard work, not least in helping us to secure the debate. If he were not attending the Offensive Weapons Bill Committee, which unfortunately clashes, he would have been with us for the duration.

We are here to discuss Britain’s forgotten immigration scandal, which has seen thousands of international students wrongly deported and tens of thousands more left in limbo. Their lives have been plunged into chaos by a Government who have effectively branded them all cheats, defied the principles of natural justice and created a hostile environment for international students. In 2014, BBC’s “Panorama” uncovered evidence of widespread cheating at testing centres delivering the test of English for international communication—the TOEIC—on behalf of the Home Office for non-European economic area students as part of the tier 4 visa. It discovered that, in some colleges, exam invigilators read the correct answers to students or supplied proxies to sit sections of the test. The provider administering the tests, Educational Testing Service, claimed that 33,725 people who took the test used a proxy, and it suspected a further 22,694 instances of fraud.

That abuse on such a scale was allowed to take place at a Home Office-approved provider was clearly a source of political embarrassment for the Government and the Home Secretary of the day, who is now our Prime Minister. When immigration system abuse goes unchecked and unchallenged, it undermines public confidence in the system and the Government responsible for it. When individuals are found to be cheating the system, it is right that their visas are cancelled and they are asked to leave the country. When providers are found to be failing in their responsibility to ensure that tests are fairly and properly delivered, it is right that they are removed from the list of approved providers.

Cheating cannot be condoned or excused—there is no disagreement about that. The Minister comes to this issue with a fresh pair of eyes, and therein lies an opportunity to reflect on what has gone wrong and put right a terrible injustice. What we have seen in the TOEIC scandal is a Home Office response so appalling that it was described by one immigration tribunal judge as

“so unfair and unreasonable as to amount to an abuse of power.”

The 22,694 students whose test results had been deemed questionable because ETS had “limited confidence” in the tests’ validity due to of administrative irregularity were permitted to sit a new secure English language test. When the Minister responds, I hope she will tell us how many of those students were required to pay for those new tests and, crucially, what the outcomes of those tests were.

For those whose test results were deemed invalid by ETS, the Home Office relied on the assurances of an untrustworthy provider to presume the guilt of tens of thousands of international students without properly considering the merits of individual cases or giving those students an opportunity to defend their innocence. According to figures obtained by the House of Commons Library, by the end of September 2016—the last time the Home Office published any figures related to such cases—more than 35,870 visa holders had had their visas refused or curtailed on the basis of the TOEIC test. More than 3,600 of those had received an enforcement visit and more than 4,600 had been subjected to removal from the country.

[Mike Gapes (Ilford South) (Lab/Co-op)]

rose—

[Seema Malhotra (Feltham and Heston) (Lab/Co-op)]

rose—

[Wes Streeting]

I give way to my neighbour, my hon. Friend the Member for Ilford South (Mike Gapes).

[Mike Gapes]

Like me, my hon. Friend has been contacted by constituents who have been subjected to this outrageous behaviour, so he will know that many people are distraught and have had their whole futures destroyed by these administrative measures. Is it not a fact that this a bigger scandal than Windrush in terms of the number of individuals removed from the country and whose livelihoods are being destroyed by anguish and despair? In many cases, they are labelled as cheats when they are not.

[Wes Streeting]

I am delighted that my hon. Friend could be here before returning to the main Chamber to consider the important matter of Brexit. I strongly agree and he is absolutely correct. The injustice is grave and the numbers affected are huge. This scandal should have been plastered on the front page of every national newspaper. It is bad enough that those students have been denied access to justice through appeal. They should have been given at least some sense of justice through the disinfectant of sunlight.

[Gareth Thomas (Harrow West) (Lab/Co-op)]

I am grateful to my hon. Friend for securing the debate and for his work on this subject. I suspect that a number of Members in the Chamber have, like me, had a series of affected constituents approach them. Given the seriousness of what has happened in the Home Office in the past—never mind that the Minister is new to the subject—does he think that this new scandal merits a proper, thorough independent inquiry?

[Wes Streeting]

I strongly agree. In fact, when I come to describe the Home Office’s handling of this, we will see that an independent inquiry is necessary.

[Seema Malhotra]

I congratulate my hon. Friend on securing the debate and on his excellent speech. Does he agree that, as well as the incredible social injustice that has happened under this Government’s watch, the reputational impact that families have suffered, which has led to depression and affected whole families, including children, demands an extensive apology and potential compensation? Does he also agree that the huge cost to the taxpayer of enforcement action and otherwise should be investigated?

[Wes Streeting]

I strongly agree and will talk in some detail about those issues. The UK is highly regarded around the world as a country that has respect for the rule of law and an independent judiciary. It also has a Government who are supposed to respect that rule of law, but in too many cases I am afraid we have seen blanket decisions and people deported without an opportunity to defend their innocence. I believe the Government have acted unlawfully and I am afraid that this country’s reputation for respect, access to justice and upholding the rule of law is not warranted in this case.

[Jim Fitzpatrick (Poplar and Limehouse) (Lab)]

I congratulate my hon. Friend on securing the debate. He said that this issue has not commanded the media attention of Windrush, yet the numbers of those directly affected in recent years are well in excess of that scandal, and it has been going on for at least four years now. Given that there has been a “Panorama” programme, a Sunday Times exposé and a Guardian report, does he have an opinion on why it has not commanded media attention like the Windrush scandal?

[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.

[Several hon. Members rose—]

--- Later in debate ---

[Wes Streeting]

I thank everyone who has taken part in this afternoon’s debate. It is striking that no Government Members have chosen to come along to defend their conduct; it has been left solely to the Minister.

To put it mildly, I am deeply disappointed with the Minister’s response. There are a few key issues that she has not addressed. I do not think she adequately explained how it was that international students were told to leave the country without a right to appeal here, in contravention of the Court of Appeal ruling. She did not address at all the fiasco where further and higher education institutions were told to cancel student places and force them out of the conventional immigration appeals route. That issue has not been adequately addressed.

Perhaps worst of all, the Minister has not given any sense of reassurance to students who are here today about when this will be resolved. My constituent’s case has been in limbo now for years, and he is not alone. The Home Office has a responsibility to these people to make sure that their cases are reviewed fairly, and that they are given the chance to clear their name and get on with their lives. We have had no reassurances whatsoever. We have not been told anything by way of detail about numbers of people. We have overall numbers affected—we have quoted those and they are really clear in the briefings—but nothing in terms of appeals, what stage they are at, success rates, how long it is taking to resolve the issues and, crucially, how much it is costing the taxpayer.

With some of the ongoing cases, not least that of my constituent, a really simple, cost-effective and fair way to resolve the case would be to allow them to resit the test. That is true for so many students. It would prove beyond any reasonable doubt whether or not they were fit to sit that test and whether the pass rate was valid or invalid. If it is invalid, they have to take it on the chin and get on with their lives in that knowledge, but in the vast majority of cases that we have seen as constituency MPs, and in the vast majority of cases that have been seen by the organisations we have heard from in this debate, there is no doubt about the proficiency of the students’ English. There is no doubt in our minds about the integrity of the students and their desire to engage with their studies.

I hope the Minister will agree, if I write to her, to look at my constituent’s case and will write back to me about when we can expect action on it. I hope she might agree to a detailed meeting with some of us, to look at how we can resolve this in a timely fashion, but I also hope that she will go away and challenge her Department and her officials about the way in which they are pursuing these cases and the time and public money that is being invested, in order to make sure that we can move on in an adequate and appropriate way.

This is really doing enormous damage to the reputation of our universities. It is doing enormous damage to our students. We heard most powerfully from our Scottish National party Opposition colleague, the hon. Member for Linlithgow and East Falkirk (Martyn Day), about his own family circumstances. That is one story that captures the absurdity and the human impact of the situation. It is so close to this place! Of course, not everyone has a member of the family who is a Member of Parliament. We are speaking on behalf of so many of our constituents who have suffered real injustice. They have been given a voice today, but they have not been given sufficient answers. We have been going on with this for far too long.

Question put and agreed to.

Resolved,

That this House has considered TOEIC visa cancellations.