TOEIC Visa Cancellations

Caroline Nokes Excerpts

Tuesday 4th September 2018 Westminster Hall

[The Minister for Immigration (Caroline Nokes)]

It is a pleasure to serve under your chairmanship, Mr Bailey. I, too, congratulate the hon. Member for Ilford North (Wes Streeting) on securing the debate, and all Members who have contributed. It would be remiss of me not to mention the right hon. Member for East Ham (Stephen Timms), who is detained elsewhere. In his absence, I thank him for his continued scrutiny of the issue, and for first raising TOEIC tests with me when I was a very new Immigration Minister indeed.

I value the contributions that have been made in the debate. I will begin by providing something of an overview, but I thank the hon. Members for Ilford North and for Poplar and Limehouse (Jim Fitzpatrick) for having set the scene quite clearly regarding what was certainly a very big scandal in terms of how the tests went so horribly wrong and became open to abuse and, in some cases, organised criminality.

English language testing for certain immigration purposes was first introduced in 2008. Since reforms in 2011, it has been a requirement for all student visa applicants to prove that they can speak English at an appropriate level. A number have used the qualification provided by the secure English language testing regime, and all private colleges are required to ensure that their sponsored students have a SELT qualification. Thus, individuals who wished to come to the UK to study, or to extend their leave to study, had to submit, where required, an English language test certificate from an approved company licensed by the Government.

Test centres operated on behalf of Educational Testing Services, or ETS as we have often heard it described this afternoon, were the subject of a BBC “Panorama” programme in February 2014 that aired footage of systematic cheating in examinations for the test of English for international communication—TOEIC—at a number of its UK test centres. Facilitated by organised criminals, it typically involved invigilators supplying, or even reading out, answers to entire exam rooms, or gangs of impostors being allowed to step into the exam candidates’ places to sit the test as proxy test-takers, and sitting speaking tests for candidates.

The Government, as one would expect and welcome, took immediate, robust action, which has been measured and proportionate. So far, 21 people have received criminal convictions for their role in the deception and have been sentenced to a total of 68 years’ imprisonment. Only two further live investigations remain.

[Gareth Thomas]

Can the Minister tell the House whether ETS itself is still under criminal investigation? If not, will she take steps to ensure that ETS agrees to release any information reasonably requested by one of its student clients?

[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.

[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.

[Afzal Khan]

The question that is being asked is not about the Home Office being right in some cases. The question is, in the cases where it has been wrong, has it offered any compensation?

[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.