Upper Tribunal allows students appeal in ETS TOEIC fraud case

The hearsay evidence of Ms Collings and Mr Millington, the two main witnesses relied on by the Secretary of State was inherently limited in that neither of these witnesses possessed any relevant qualifications, credentials or expertise in what is ultimately a scientific field - namely, voice recognition technology and techniques;
There was no evidence from ETS;
The evidence from expert Dr. Harrison was persuasive and remained unchallenged by the Secretary of State;
The Appellant’s themselves were found to be truthful.



Now, though, the news of the figure has come shortly after the Upper Tribunal (Asylum and Immigration) made a damning ruling on 23 March that the Home Secretary’s evidence suffered from "multiple frailties and shortcomings."

Shortly after, in June 2014, Immigration Minister James Brokenshire made a statement to Parliament in which he said an investigation post-Panorama found evidence of 46,000 "invalid and questionable" tests.

Test Formats
The TOEFL is a four-section test that includes sections for reading, listening, speaking and writing. It is taken exclusively on the computer. The TOEIC is broken into two separate but complementary exams: the Reading and Listening Test, which is a paper-and-pencil test, and the Speaking and Writing Test, which is taken on a computer. The exams are broken up in this way so potential employers can choose to measure an employee's reading and listening or speaking and writing skills only, or all four language skills. The Reading and Listening Test will take about two-and-a-half hours to complete, and for the Speaking and Writing Test, the speaking section will last about 20 minutes, and the writing section will take 60 minutes to complete.

AWS Solicitors, who represented one of the two students in the case, released a press release following the ruling which you can read here on Free Movement. If you loved this write-up and you would like to get additional details concerning toeic scores kindly go to the website. A summary of the judgment is also available here.

A Home Office spokesperson told the Financial Times: "We are very disappointed by the decision and are awaiting a copy of the full determination to consider next steps including an appeal. It would be inappropriate to comment further at this stage."

The Appellants, both nationals of Pakistan had made applications to extend their student visas prior to the expiration of their leave. The Secretary of State refused their applications and invalidated their existing leave by service of removal decisions under section 10 of the Immigration and Asylum Act 1999. Both Appellants lodged judicial review claims challenging the removal decisions.

With respect to the no alternative remedy question, Mr. Malik contended that if the section 10 removal decision invalidated the Appellants’ leave, they had no appeal against the refusal to vary their leave. Therefore even if the section 10 notices were successfully challenged in out-of country appeals, the refusal of the applications to vary would still stand unless they were set aside by judicial review proceedings. He argued that there was no difference between an application for a variation of leave and an application for further leave to remain

In the case of R (Gazi) v Secretary of State for the Home Department (ETS - judicial review) [2015] UKUT 00327 (IAC) these witness statements were described as ‘generic’ as they did not explain why ETS had invalidated the certificate of a particular person or provide any evidence in relation to the personal circumstances of an individual.

Politics.co.uk says this was used to justify thousands of deportations as the Home Office claimed that everyone who had taken the TOEIC test conducted by ETS had committed fraud. The Financial Times reported that it is not clear how many people were deported, but more than 30,000 test scores were considered suspect.

In an email to the Independent, a Home Office spokesperson said: "The Government continues to tackle abuse of our immigration system and protect the reputation of our world class education institutions.

The ruling was quoted as saying: "Apart from the limited hearsay evidence there was no evidence from the protagonist in this saga, the ETS organisation … The Secretary of State has not discharged the legal burden of establishing that either appellant procured his [English language] certificate by dishonesty."

Lord Justice Beatson also stated that where there are disputes of facts, as was the case here, these are rarely likely to constitute ‘special or exceptional circumstances’, partly because judicial review was not suited to resolve such issues. In addition, matters of procedural unfairness could be considered in an appeal and were rarely likely to constitute ‘special or exceptional’ factors.

In relation to Mr. Ali not receiving prior notice of the removal decision, the Court held that this did not prevent him from responding to the notice or by making further representations. In any event, such matters relating to procedural fairness could adequately be dealt with by the appellate process.