EEA Nationals and the TOEIC test

Immigration and Social Security Co-ordination (EU Withdrawal) Bill – in a Public Bill Committee at 2:45 pm on 5th March 2019.

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‘(1) The Secretary of State must disregard the results of the TOEIC (Test of English for International Communication) test for any EEA or Swiss national who applies for—

(a) settled status;

(b) pre-settled status;

(c) a visa to work or study in the United Kingdom; or

(d) any new visa system established under the provisions of this Act.

(2) The Secretary of State must, within 6 months of this Act having received Royal Assent, carry out a review of the consequences of the licence given to ETS (Educational Testing Service) to administer the TOEIC test in the UK.

(3) The review under subsection 2 must include, but is not limited to, consideration of the allegations that some candidates may have cheated when taking the TOEIC test.

(4) The review under subsection (3) must be laid before both Houses of Parliament.”—

Brought up, and read the First time.

Photo of Kate Green Kate Green Chair, Committee on Standards, Chair, Committee on Privileges

I beg to move that the clause be read a Second time. I do so on behalf of my right hon. Friend Stephen Timms, who is not a member of this Committee but who has been particularly active on this issue, along with other colleagues.

This new clause relates to the testing of foreign national students in English proficiency. In 2011, the Home Office gave a licence to the US firm ETS to operate an English language test—the Test of English for International Communication or TOEIC—that was widely used to assess whether the English-language capabilities of overseas students were sufficient for them to study in the UK.

In February 2014, the BBC “Panorama” programme exposed cheating on a significant scale on the TOEIC test. Test centres were facilitating proxies to take the test, allowing students with poor English to obtain a pass certificate. ETS responded to this exposé by under- taking analysis, using voice-recognition software of the recordings of all those who had taken the TOEIC test in order to study in the UK. They reported to the Home Office that, of 58,458 candidates who took the test in the UK between 2011 and 2014, 33,725 had definitely cheated and 22,694 probably had. Only 2,039 candidates were given the all-clear.

The Home Office responded by cancelling the visas of many of those ETS claimed had definitely cheated. Their colleges were required to expel them from their courses and, of the 22,694 students that ETS claimed had probably cheated, the Home Office stated that none had action taken against them without first being given the opportunity to resit a test with a different provider. Up to the end of 2016, the Home Office published data on its response to the ETS allegations. By the end of that year, there were more than 35,870 refusal, curtailment and removal decisions made in respect of ETS-linked cases. There were more than 4,600 removals and departures in respect of ETS-linked cases. These figures suggest that a significant number of those who lost their visas as a result of ETS allegations are still in the UK, but nobody knows how many. One estimate is that at least 2,000 are still here.

No in-country appeals were available to those accused of cheating, but some of those affected have managed to get their cases before the UK courts. In a growing number of cases, they have been able to convince the courts that they did not, in fact, cheat. In one case, the appellant showed that he never even took a TOEIC test.

ETS’s evidence has not stood up well to the scrutiny it has received in these cases and was described by one computer expert as worthless. It has proven extremely difficult for students to obtain from ETS the recordings alleged to be of them taking the test and ETS’s records, for example of where the test was taken, have proven unreliable. It is also clear that many of those affected can speak excellent English and some have passed comparable tests with other providers. This is the regime that EEA national students will be subject to in future.

The students whose visas were summarily cancelled have been left in a terrible plight. They were thrown off their courses and were not entitled to any refund of the fees they had paid. They are not permitted to study or work in the UK, and many are dependent on support from friends. In some cases, they have invested their family’s life savings in obtaining a British degree. Now the savings have gone, they have no qualification and face destitution. Many say they could not endure the shame of returning to their home country with nothing to show for their efforts and having been apparently convicted by UK authorities of having cheated. At a meeting in the House of Commons attended by some 50 TOEIC victims recently, it was claimed that all suffer mental health problems.

The student who never took a test, but nevertheless had his visa cancelled on the grounds that he cheated, had completed an MBA course at the University of West London, subject to having to pass two resits. When the Home Office refused his visa renewal on TOEIC grounds, the university withdrew him. He had paid more than £10,000 in fees for the course and has since spent £5,000 on legal costs to win his appeal.

The Upper Tribunal judges concluded, however, that the Home Secretary had not shown that that claimant had used deception in relying on an ETS TOEIC English language test. In reconsidering the application, the Home Office refused it again, apparently still taking the view that the student had cheated. A further appeal is due to be heard in May. The student is being supported financially by his wife, who also lost her visa following an allegation of cheating in TOEIC. She works 10 hours a day, seven days a week, renting a chair as a self-employed beauty therapist in Peckham.

There have been a number of cases about the treatment of such students. In one, that of Assan, the Court of Appeal heard that because of the nature of the allegations, the necessity of oral evidence to defend them, and the fact that adequate facilities did not exist to enable evidence to be given by someone outside the UK, the out-of-country appeals model was not adequate. It would not be adequate in future were it to continue to apply to EEA students. In an earlier decision, in the case of Qadir v. the Secretary of State, the upper tribunal found that evidence used by the Home Office had “multiple shortcomings and frailties”.

So far, students who have taken the test come from more than 180 different nationalities. I acknowledge that the largest groups came from Bangladesh, India and Pakistan, but 75 came from countries in the European economic area, including 11 alleged by ETS definitely to have cheated and 16 probably to have cheated. Given that the Home Office is still using ETS allegations as a basis for refusing applications, the main purpose of the new clause is to ensure that no EEA citizen should be disadvantaged in a future application for leave to remain in or to enter the UK as a result of ETS making an allegation of cheating, in particular given the increasing uncertainty about the reliability of such allegations.

The new clause would require the Home Secretary to carry out a review of what happened in the TOEIC affair. On a number of occasions in the House, the Home Secretary has in fact committed to look into it. On 30 April 2018, he was asked:

“Will he undertake to look carefully at the case of TOEIC students?”—[Official Report, 30 April 2018; Vol. 640, c. 46.]

He replied, “Yes.” On 19 December, when asked:

“Is he in a position yet to offer any relief to those students…who had their visas cancelled after being accused, often wrongly, by an American firm of having cheated in their English language tests?”,

he replied that

“we are still looking at this but we are taking it very seriously.”—[Official Report, 19 December 2018; Vol. 651, c. 821.]

So far, however, there has been no announcement of a conclusion.

We need urgent action to bring to an end the grave injustice inflicted on such a large number of students, whose only mistake was to choose the UK as a place to study. A simple remedy, proposed in early-day motion 2061, which has so far attracted support from more than three dozen Members of Parliament, would be to allow those students, including EEA ones, to remain in the UK to sit a new secure test, and to reinstate the visas of those who pass to allow them to complete their studies and clear their names of the allegations levelled against them.

I very much hope that the Immigration Minister will be able to give firmer assurances to people who have suffered such injustice at the hands of that American company. That might have happened some years ago, but the issue remains very live for those individuals. Members of the Committee might be aware that the issue was covered again on “News at Ten” this week. It is an extremely painful story that does not reflect well on the education provided in this country. I am sure that the Minister will agree that at a time when it is important for us to be an attractive destination to international students, this is an injustice that the Government will want to do everything they can to put right, and as quickly as possible. I look forward to her response.

Photo of Afzal Khan Afzal Khan Shadow Minister (Home Office) (Immigration)

I strongly agree with the new clause. I have been involved in campaigning on the TOEIC test issue. It is a burning injustice that is long overdue for resolution by the Home Office. Thousands of innocent students have spent years trying to clear their names. In Committee, we have discussed the terrible consequences of the “hostile environment”, and those all rained down on the students. I hoped that the issue would be resolved long before now, given that the scandal first broke five years ago. Given that the legal limbo continues, we support the new clause as a vehicle to compel Ministers to resolve it.

Photo of Caroline Nokes Caroline Nokes The Minister for Immigration

I thank the hon. Member for Stretford and Urmston for tabling the new clause on behalf of the right hon. Member for East Ham. The new clause relates to the use of certificates to evidence knowledge of English. It raises an important issue, and I would like to explain the Government’s response to widespread abuse of English language testing facilities, which came to light in 2014.

The scale of the fraud—there is no doubt it was a fraud—is illustrated by the fact that so far more than 20 people have received criminal convictions for their role in facilitating the deception, and sentences totalling more than 60 years have been handed down. Further criminal trials are ongoing. There was also a strong link to wider abuse of the student visa route. The majority of individuals linked to the fraud were sponsored by private colleges rather than universities, many of whom the Home Office had significant concerns about well before “Panorama” uncovered the specific fraud. Indeed, 400 colleges who had sponsored students linked to the fraud had already had their licences revoked prior to 2014.

The Educational Testing Service had its licence to provide tests within the UK suspended in early February 2014 and was removed from the immigration rules on 1 July 2014. Approximately 20% of the tests taken in the UK were provided via ETS prior to its suspension.

During 2014, ETS systematically analysed all the TOEIC tests administered in the UK dating back to 2011 and classified them as either questionable or invalid. ETS categorised results as questionable where it had significant concerns about the test centres and sessions where they had been obtained.

We have always recognised that it was possible that a small number of students who took legitimate tests could have received a questionable result. That is why we ensured that those people were given the chance to resit a test or attend an interview before any action was taken against them. ETS categorised results as invalid only where the same voice was matched to two or more tests taken in different names, indicating that deception was likely to have been used.

Photo of Stuart McDonald Stuart McDonald Shadow SNP Spokesperson (Immigration, Asylum and Border Control)

All this was a good few years before the Minister’s time in office, but was one of the fundamental problems here that the big multinational company responsible for messing up the test in the first place was then handed a blank cheque to mark its own homework afterwards? Why was that not handed to a completely independent body, rather than just letting ETS fix its own mess? How much did it have to pay in compensation to the Home Office?

Photo of Caroline Nokes Caroline Nokes The Minister for Immigration

I reject the description of a global company making a mess of it. This was systematic fraud and deception—I indicated earlier the number of criminal convictions. This was not a mess; it was fraud. It is really important to remember that.

Photo of Stuart McDonald Stuart McDonald Shadow SNP Spokesperson (Immigration, Asylum and Border Control)

It was a fraud, absolutely. It was far too easy to perpetrate. People employed by that company or at least subcontracted further down the line by that company were assisting people with their tests and allowing different people to sit the tests. The safeguards that the company put in place were clearly way short of what was required. It made a mess of things.

Photo of Caroline Nokes Caroline Nokes The Minister for Immigration

That is absolutely why that company was suspended from the immigration rules in July of that year, which is perhaps evidence of why occasionally it is useful to use the immigration rules as a very swift device to resolve problems. I would point out that the report on the ETS system, which was undertaken by Professor Peter French, concluded that the number of false matches was likely to be very small and it was more likely that people were given the benefit of the doubt than that they were falsely flagged as having cheated.

Photo of Kate Green Kate Green Chair, Committee on Standards, Chair, Committee on Privileges

One of the difficulties that the students face is that it is proving very difficult for them to get a copy of the recorded evidence on which ETS and, it would seem, the Home Office are relying. We seem to have a system that, in its impact, is not just on a number of individuals. I am quite surprised that the Minister is taking such a hard line, because even one failure of justice is one too many.

Photo of Caroline Nokes Caroline Nokes The Minister for Immigration

As I indicated earlier, those who received a questionable result were given the opportunity to take an additional test or to attend an interview before any action was taken against them. I know that Members have expressed concern about the reliability of the matching. It is important to note that an independent expert report from Professor French, a professor of speech science, which reviewed the system, indicated that the number of false matches was likely to be very small. It is also worth noting that the courts, even when finding in favour of individuals, said that the evidence for invalid cases was enough to justify reasonable suspicion of fraud and for the Home Office to take action. It is then for individuals to address this evidence, as a number have, through appeal or judicial review.

The first part of the hon. Lady’s amendment requires the Secretary of State to disregard the results of any English language test for any EEA or Swiss national applying for settled status, pre-settled status, to work or study or for any other visa system established under the provisions of the Bill. We have set out very clearly our intention to create a single, skills-based immigration system. English language ability will remain a key strand of the immigration requirements for many of those coming to work, study and settle in the UK. Although EEA nationals often have excellent English language skills, currently we exempt only nationals of majority English-speaking countries and those who have certain qualifications obtained in English, having shown their English language skills through a secure English language test.

Requiring EU citizens to obtain evidence of their English language would put them on a par with a citizen of any other non-majority English-speaking country under the current system. However, evidence of English language is not a requirement for settled or pre-settled applications, and no EEA or Swiss national applying under the settlement scheme will have to demonstrate their English language ability.

The Government believe it is a reasonable expectation that those coming to work or study in the UK are able to speak a satisfactory level of English. Therefore, evidence of English language will continue to be a requirement for other visa routes, such as study and skilled work routes.

Photo of Kate Green Kate Green Chair, Committee on Standards, Chair, Committee on Privileges

I am grateful that the Minister says English language capability is not a requirement for settled status and pre-settled status. Will she confirm clearly that, given we know that a small number of EEA nationals have already taken this test and may not have passed it, failure to pass the test will not prevent them from being obtaining settled status or pre-settled status, nor will it put them at risk of removal or other sanctions?

Photo of Caroline Nokes Caroline Nokes The Minister for Immigration

I think I can give that reassurance. When it comes to settled status or pre-settled status, there are only three requirements. We ask people to provide evidence of their identity, of their residence in the UK for five years for settled status and less for pre-settled status—enabling them to upgrade to settled status later—and of any criminal convictions.

The second part of the amendment provides for a review of the consequences of the licence issued to ETS to administer the English language test in the UK. As the hon. Lady will be aware, there has been significant scrutiny of this issue over the last five years in Parliament, the courts and the media. A specific inquiry was conducted by the Home Affairs Committee in 2016, during which the Home Office answered more than 100 detailed questions. Given the scrutiny that has already taken place, I do not believe it is necessary to require the Home Office to conduct a further review, and I also do not believe that this Bill, which sets out a framework for the future immigration system, is the correct vehicle to require reviews of previous Home Office actions that have little bearing on EEA or Swiss nationals.

I am aware that, following a meeting with the Home Secretary, the right hon. Member for East Ham passed on details of a further number of specific cases to the Home Office. I assure the hon. Lady that we will respond shortly on these cases and the wider issues that have been raised and continue to be raised. I appreciate that there is frustration at recent delays in response to individual representations, but that is because my right hon. Friend the Home Secretary and I both take seriously the issues that the right hon. Member for East Ham has raised.

I hope that the hon. Lady is satisfied from the evidence presented that the Bill is not the right vehicle to address any concerns she may have with the historic abuse of the English language test administered by ETS, and I respectfully ask her to withdraw her new clause.

Photo of Kate Green Kate Green Chair, Committee on Standards, Chair, Committee on Privileges

I am a little disappointed by the tone of the Minister’s response. There is no doubt that, as she says, there has been cheating, both corporate and individual. It is unfortunate to adduce other cases that were nothing to do with ETS and the TOEIC case in particular, to imply that there is some general culture of cheating that these students were a part of. We know that specific cases that have been brought either to the Home Secretary and considered carefully, as she says, or to the courts, often have been found in the appellants’ favour. The courts have been quite firm in some of their wording, making it quite clear that it is the Government who have failed to discharge the burden of proof that sits on them and not some legal failure on the part of the students to make their case.

I hear what the Minister says about the situation for those applying for settled status or pre-settled status. I am grateful to her for that assurance. I recognise what she says about the scope of the Bill and that perhaps it is not the ideal vehicle for the new clause. However, despite the reviews and discussions she mentioned, the Home Secretary has twice in the last year made a commitment to come back with a fuller report on the matter after conducting a review of it. That still has not happened, so I am sure the Minister will appreciate my taking this opportunity to put the matter in front of Ministers again. She may also want to know that a new all-party parliamentary group has been established to consider the issue further. She and the Home Secretary can expect to hear more from that group.

With the leave of the Committee, I will withdraw the new clause, but I am sure that my right hon. Friend the Member for East Ham will want to consider further, as I do, what steps may still be available to pursue this injustice suffered by a number of international students. I beg to ask leave to withdraw the motion.

Clause, by leave, withdrawn.