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Immigration Solicitors

The Fight Continues Against the ETS TOEIC Fraud Allegations (16 May 2016)

Date: 16/05/2016
Duncan Lewis, Immigration Solicitors, The Fight Continues Against the ETS TOEIC Fraud Allegations

The 'TOEIC' uproar began in 2014 when the Secretary of State of the Home Department made a decision to cancel particular individuals' visas; who had leave to remain in the United Kingdom on the ground that they received an English Language qualification on a 'TOEIC' certificate by fraud.

If you held a Tier 1, Tier 2, Tier 4 Student Visa, spouse/unmarried partner/fiancé/civil partner or Indefinite Leave to Remain and have not been able to re-enter the UK, or extend your leave in light of your 'TOEIC' certificate, this article may be of particular interest to you.

The leading cases in regards to this topic are R (Gazi) v Secretary of State for Home Department (ETS – Judicial Review) (IJR) [2015] UKUT 327 (IAC) and R (Mahmood) v Secretary of State for the Home Department [2014] UKUT 439 (IAC). The Secretary of State relied upon BBC 'Panorama' whom investigated the English Test Centers, and found that individuals' gained a 'TOEIC' through deception. They used various ways, such as proxies to undertake speaking and listening tests, and by invigilators giving the correct answers for written tests.

TOEIC is a certification administered by the Educational Test Service (ETS). ETS is one of the largest English Testing organisations in the world; they assess around 50 million tests per annum. 200,000 student visas are issued in the UK annually with 1,700 approved Government approved colleges. The Secretary of State investigated the grey area of TOEIC and came to the conclusion that around 33,000 tests were seen as 'invalid' or 'questionable' tests relating to fraud.

More recently in a judgement that has been reported in the case of SM and Qadir v Secretary of State for the Home Department (ETS – Evidence – Burden of Proof) [2016] UKUT 229 (IAC) bought by two international students. The Upper Tribunal ruled that the Home Office have relied on 'hearsay' evidence, failing to prove why the students were told to leave the UK, cancelled or denied a visa. This judgement now opens up a possible gateway of appeals to students experiencing a similar situation with regards to their 'TOIEC' certificate.

The Home Office has relied on two witness statements known as 'generic evidence' which is used in every case relating to these specific types of case. 'Neither witness had any qualifications or expertise in the scientific subject matter of these appeals.' The Home office was entirely dependent on the information provided by the ETS.

One expert opinion (Dr. Harrison) had been taken into consideration; his evidence was described, as 'balanced, measured and truthful, containing no hint of exaggeration or conjecture.'

To summarise the judgment by Justice McCloskey and Deputy Upper Tribunal Judge Saini 'The Secretary of State has not discharged the legal burden of establishing that either Appellant procured his TOEIC certificate by dishonesty.' The Judge relies on this by further stating that the Secretary of State's evidence given has been limited with little evidence provided by the ETS organsiation. In contrast the Presidential Panel found the Appellants evidence to be 'impressive in its entirety' and found no indication of invention, exaggeration or evasiveness.'

Keith Vaz MP, Chairman of the Home Office Select Committee told The Independent: 'this is a devastating verdict on ministers and officials at the Home Office. It is clear that there are many innocent people who speak impeccable English who have been denied their right to remain in the UK because of the reaction of the Home Office.'

Therefore, in light of the summary above on the current situation of 'TOEIC', we must await a full judgment to consider what may happen next.

At Duncan Lewis Solicitors, our team of specialist immigration lawyers specialise in Judicial Review and Appeal matters in the UK.

Contact us at privateimmigration@duncanlewis.com for further information.

About the Author: Sasha Lal

Sasha Lal joined Duncan Lewis in March 2016 as a Caseworker in the immigration department. Prior to joining Duncan Lewis,Sasha completed the Bar Professional Training Course (BPTC) at City Law School, gaining a Competent grade, she was called to the Bar by the Inner Temple in November 2015. Sasha holds an LLB degree from London Metropolitan University; she received a 2:1 grade. Sasha has undertaken several legal and voluntary work placements, including National Centre for Domestic Violence (NCDV), Witness Service and Vocalise.

Sasha has previously worked as a Legal Assistant in Fragomen LLP, where she dealt with business related immigration, such as matters concerning the Points Based System.

In her spare time, Sasha enjoys, salsa dancing, reading, socializing, fashion and travelling; Sasha regularly visits Spain and therefore is able to hold a conversation in Spanish; this allows her to experience different cultures.


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