English language tests for overseas students inquiry

The Home Office’s design of the Tier 4 visa system left it open to large-scale abuse. Before 2014, the Department had been aware of issues of abuse within the Tier 4 system for some time and had already started to act on some of these abuses. In 2012 we examined the implementation of the Tier 4 visa system and recommended that the Department should identify and actively manage risks before it implements change. The Department now admits that its decision to use a licensing arrangement to support this system, where ETS Global BV provided a service directly to test-takers and not to the Department, was the “wrong model” and it did not have sufficient oversight over its licence agreement with ETS Global BV. The Department’s design of the system failed to recognise the obvious incentives that sponsors and individuals would have to cheat the SELT system. Individuals taking the tests could gain the right to enter and study in the country, providing an opportunity which could then be exploited by criminal organisations. ETS estimates that up to 97% of individuals taking speaking tests conducted in the UK between 2011 and 2014 were suspected of cheating using proxies. The scale of cheating caught the Department off guard, even though it had in 2012 seen intelligence from ETS regarding possible cases of fraud on ETS tests, which had led ETS to remove licences from eight of its test centres. The Department claims that it has learned from these experiences and has improved its licencing system since the cheating claims emerged, but it is not able to identify specific improvements or what impact they had achieved. Recommendation: The Home Office should write to the committee immediately to explain what lessons it has learnt and what specific steps it has taken to ensure that such large-scale abuse cannot happen again.

The Home Office rushed to penalise students without establishing whether ETS was involved in fraud or if it had reliable evidence of people cheating. In June 2014, the Department accepted ETS’s analysis which identified individuals suspected of cheating within a TOEIC speaking test. Based upon this evidence, it acted swiftly against thousands of individuals by cancelling their visas, refusing pending applications or inviting them for interviews, but it did not conduct a thorough investigation of what had happened or whether the evidence ETS provided was reliable. The Department sent a team of civil servants to the United States in 2014 to gain assurances about ETS’s data and its involvement in the cheating but did not ensure that the team had specific expertise or experience in linguistics or relevant technology. The Department only sought expert opinion and assurance two years after it began acting against individuals whom it suspected of cheating. Recommendation: The Home Office should, within three months of this report, write to the Committee with evidence of its assessment from 2014 that ETS were not criminally complicit.

The Home Office’s commercial relationship with ETS meant it had insufficient recourse to claim compensation. The Department estimates that it has spent £21 million in responding to the testing fraud. But it has only been able to secure compensation worth £1.6 million from ETS Global BV for its involvement in the fraud. The Department’s licensing model for its Secure English Language Test providers meant it had limited capacity to seek any guarantees of compensation 6 English language tests for overseas students from those providers in the case of any irregularities. The Department estimated that the cost of its Gold Command team response was just over £700,000, although it only tracked costs in other areas involved for a limited time and did not create new cost codes or accounting structures. The Department now recognises that it needs to improve the selection and management of its outsourcing partners. Its decision to use a licensing model was a mistake and the Department has committed to ensuring that its future agreements with private companies should include a redress mechanism in the event of contractor failure. The involvement of two overseas companies further complicated its ability to secure compensation. Recommendation: The Home Office should, within six months of this report, review its arrangement with overseas partners, including redress mechanisms in the event of contractor failure, and write to the Committee with its results.

It is entirely unacceptable that, despite now recognising that hundreds of people still maintain their innocence, the Home Office has not acted to put right the wrongs caused by its actions. The Department has consistently argued that there was only a “very small” risk that its actions would affect innocent people and claims that it is concerned that hundreds of people continue to maintain their innocence. However, the Department has taken no action to proactively identify innocent people. Those who are affected by the Department’s action against them can go through the courts to try to demonstrate their innocence. But this can have a substantial financial and personal cost for those involved. Individuals also face several barriers in gaining access to the evidence that they need to demonstrate their innocence, such as the cost of conducting an appeal or the unavailability of their voice recordings from ETS. Many also still face difficulties finding a new sponsoring college or university even after winning their appeals. It is shameful that the Department knows it could have acted against innocent people but has not established a clear mechanism for them to raise concerns outside of the appeals process. We are encouraged that the Home Secretary has committed to looking at other options for people who feel they have been wronged to respond to accusations, and we await further statements on this subject. Recommendation: The Home Office should, within three months of this report, create and promote a fair and trustworthy means of helping all individuals who may have been wrongly accused to come forward and clear their names, including ensuring that all evidence from ETS is made available to them.

As with the Windrush scandal, the Home Office has once again not done enough to identify the innocent and potentially vulnerable people who have been affected. During our evidence session, the Department admitted publicly for the first time that it was concerned that hundreds of innocent people continue to maintain their innocence, but it has not investigated this sufficiently. The Department has made no effort to identify individuals who have been wrongly accused. It justifies its position based on the evidence provided by ETS, the expert assurance it received in 2016 and the availability of the courts as a potential remedy. The Department relied solely upon the generic evidence provided by ETS and waited over two years to get any independent expert assurance on the methods ETS used to demonstrate cheating. The Department was willing to accept the evidence of ETS at face value, but it has not accepted additional evidence from those it has accused of cheating except English language tests for overseas students 7 through the appeals process. It has not investigated contradictory evidence despite concerns that the National Union of Students and our sister Committee the Home Affairs Select Committee have raised and the number of appeals that individuals lodged against the Department’s actions. Recommendation: The Home Office should address its lack of curiosity and establish safeguards to protect innocent people in the future, including ensuring that senior leadership do more to promote a culture of curiosity. 8 English language tests for overseas students 1 The Department’s oversight of the Tier 4 visa system

The Department explained that its actions against sponsors before 2014 did not directly relate to the validity of ETS certificates. Although it revoked 400 licences of centres specifically associated with ETS, these were for issues of general compliance. In 2012, the Department received intelligence from ETS about fraudulent behaviour in test centres, which had removed the licence to operate from eight of its test centres. Although ETS withdrew the results for 446 individuals whose tests were linked to those centres, the Department did not investigate wider cheating in ETS tests in response to this information. It could not explain why this had been the case and committed to providing further detail on the intelligence, when it was received and who acted upon it.11 The Department asserted that it was now confident that the Tier 4 visa system was “broadly compliant” and that the standard of visa compliance among people coming to study in the UK was now “high to very high”.12 It claimed that it had made several improvements to the Tier 4 visa system, including requiring licensees to regularly provide data to the Department and introducing stricter arrangements on how they conduct tests on the day. However, it was unable to explain what changes it had made to address issues surrounding the quality of the data that licensees provided, and the systems that SELT providers use.13 6 Committee of Public Accounts, Immigration: The points based system - student route, Seventh Report of Session 2012–13, HC 101, 24 August 2012 7 Q 26 8 Qq 29–31, 35 9 Qq 37–39 10 Q 32 11 Qq 35–37; Home Office letter to Committee dated 6 August 2019 12 Qq 27, 88 13 Qq 114–116 10 English language tests for overseas students The role of ETS

The Department absolved ETS of any involvement in the organised cheating by June 2014 and relied upon the evidence ETS provided.14 We asked how the Department ruled out any complicity on the part of ETS. The Department explained that it did consider whether there was the potential for criminal action against ETS Global BV, but not ETS Global BV’s American parent, ETS, as the two were considered separate companies. The Department told us that ETS was ultimately responsible for providing corrected results and test the validity of those results. It told us that there was a clear distinction between ETS Global BV, which was administering and providing tests in the UK, and ETS, which held the voice files needed to match the recordings taken as part of the tests and establish the scale of the problem.15 The Department added that it had received legal advice which stated that it could rely upon the data provided by ETS, but it was unsure what the specific components of that advice were and committed to sending us a copy of that advice.16

Between February and June 2014, ETS faced a huge workload to reassess 66,000 TOEIC tests and applied three conditions to determine whether a test was invalid or questionable.17 The National Audit Office found that ETS had not used its voice recognition techniques before to detect cheating in TOEIC tests. Each test was checked by two trained listeners after being tested by the voice recognition software. Nineteen staff experienced in assessing a different test, the Test of English as a foreign language (TOEFL), carried out voice biometric tests on the TOEIC sample.18 The Department explained that ETS then provided corrected test results to the Department in May or June 2014. The Department started to take action against individuals who were identified as holding invalid certificates in June 2014, four months after the Panorama documentary.19 The Department based this response entirely on ETS’s evidence and accepted that it should have sought independent expert assurance, particularly in response to potential fraud at the scale ETS uncovered.20 It acknowledged that it asked ETS to conduct its analysis quickly. The Department explained that this rapidity reflected Ministers’ demands for a “speedy and robust response”.21

The Department sent a team of civil servants to the United States in 2014 to provide assurance on the accuracy of the data provided by ETS on fraudulent tests. The National Audit Office found, however, that none of those in the delegation had expertise in linguistics or the technology or techniques being used by ETS to provide that assurance.22 We asked, therefore, what the value was of sending a delegation to investigate whether criminal conspiracy had occurred if the delegation did not have the expertise needed to determine this. The Department explained that the purpose of this delegation was to investigate how ETS was analysing its data.23 In 2015, the National Union of Students (NUS) raised doubts about the accuracy of the methods used by ETS. The NUS report suggested that as many as 2,000 people could have been incorrectly categorised.24 However, we heard that the 14 Qq 45–46, 52–53, 64 15 Qq 47–50, 52–53 16 Qq 70–72 17 Qq 25, 47; C&AG’s Report, para 2.13 18 C&AG’s Report, paras 2, 2.4, 2.13 19 Qq 45–46, 48 20 Qq 57, 62, 94 21 Qq 34, 64 22 Q 54; C&AG’s Report, para 2.7 23 Qq 53–54 24 C&AG’s Report, para 2.8 English language tests for overseas students 11 Department waited until 2016, two years after it started taking action against individuals, before it sought independent expert assurance to support the validity of ETS’s evidence. The Department accepted, though, that this independent expert assurance should have been secured earlier.25 Compensation from ETS

The Department did not keep detailed records of its spending in responding to cheating, but estimated it had spent £21 million dealing with the repercussions of cheating in TOEIC by November 2017. This consisted of £9 million on immigration enforcement, £5.5 million on appeals and judicial reviews, £3 million dealing with temporary visa applications and £2 million on criminal and financial investigations. In 2018, the Department agreed a settlement of £1.6 million in compensation from ETS Global BV.26 The Department could not identify how much it had spent on litigation against ETS Global BV, although it estimated that this amount was less than the £1.6m it eventually received.27 The committee were concerned that this level of compensation did not reflect the level of cheating or the amount that ETS Global BV made from holding a SELT licence. The Department could not explain how much money ETS had made from holding a SELT licence, and the Department agreed that its licensing agreement provided significant value to ETS.28

The Department also failed to secure a larger amount of compensation as it did not adequately track the costs it incurred while tackling the fraud. The National Audit Office found that the Home Office’s estimates were “extremely vulnerable” in demonstrating the costs it had incurred in responding to cheating.29 Although the Department set up a Gold Command team, it had limited information on its costs, estimating this to be £700,000 based on the number of staff hours booked.30 The Department explained that it made basic attempts to record the cost of its response to cheating in TOEIC, but did not set up new costs codes or a specific method of tracking this. We were concerned that tracking what the Department was spending had been an afterthought. The Department explained that it was “overwhelmingly focused” on responding to the issue, including closing bogus colleges and dealing with people who it suspected of cheating. The Department also highlighted the difficulty of establishing that its £21 million costs were causally related to the fraud.31

We asked whether the Department’s decision to use a licence arrangement for SELT, rather than a formal contractual relationship with providers, affected the Department’s ability to secure compensation. The Department acknowledged that a contract model could have provided stronger guarantees over ETS’s liability to pay compensation, but it stressed that this would not automatically have been the case. The Department told us that the amount of compensation it could have secured through a contractual model would have depended on whether the contract included parent company guarantees or parent company support. It explained that the ETS Global BV’s UK branch had ceased trading 25 Q 62 26 C&AG’s Report, para 3.7, Figure 8 27 Qq 89, 91, 93 28 Qq 38, 73–76 29 C&AG’s Report, para 3.12 30 Qq 61–62; Home Office letter to Committee dated 6 August 2019 31 Qq 80–83; Home Office letter to Committee dated 6 August 2019 12 English language tests for overseas students at the time the Department was seeking compensation, and that its legal advice was that it could only seek compensation from ETS Global BV.32 The Department was unable to explain to us what level of due diligence it had conducted before starting its legal action against ETS Global BV, but it defended taking this decision.33 It asserted that it had “tried long and hard to get more but the sad fact is that the assets available were essentially only slightly more than the amount that we got”. It similarly asserted that if it if had decided to go through litigation instead of settling, it was likely that it would have received less, or no, compensation, and its legal advice at the time had been to agree to the settlement.34

The Department recognised that its decision to use a licensing model had been a mistake and asserted that it had changed the way it approached commercial partnerships. It acknowledged that the structure of the commercial arrangements and the relationship between two separate overseas companies meant it had had no claim for compensation against the American parent company. The Department also revealed that ETS Global BV’s possession of relatively few available assets limited the level of compensation to £1.6 million, and its counsel therefore advised the Department that this settlement was the best available.35 However, the Department defended its use of outsourcing contracts more generally, even though it recognised that such arrangements inherently carry some risk.36 The Department asserted that it had learned from this experience, and committed to ensuring that any future agreements should anticipate litigation from the outset and ensure that overseas partners have assets that can support meaningful liabilities and penalties.37 32 Qq 77–79 33 Qq 89, 91 34 Q 79 35 Qq 76, 79 36 Qq 132–133 37 Qq 83, 136–139 English language tests for overseas students 13 2 The Home Office’s response Routes of challenge available to affected people

Based on the evidence the Department received from ETS, it revoked the visas of anyone with an invalid test. It also required anyone with questionable results who wished to extend their existing visa to take a new English language test and attend an interview with the Department. The National Audit Office found that at least 11,356 people linked to an invalid or questionable Test of English for International Communication (TOEIC) had left the UK by the end of March 2019. At least 7,206 people left voluntarily, and the Department removed or denied re-entry to at least 2,859 people. However, a number of people remain in the UK and continue to protest their innocence. Around 12,500 individuals matched to invalid or questionable TOEIC certificates appealed against immigration decisions between April 2014 and March 2019, and they were successful in 3,714, or 40%, of first-tier appeals. The Department appealed in the upper tribunal against three-quarters of the cases it had lost before September 2016.38

The Department acknowledged that hundreds of people—and possibly more— continued to protest their innocence, but said they had had a right of challenge. It recognised that there was a risk that some innocent people might have been caught up in its action but described the risk as “numerically very small”.39 The Department stated that assurance from its independent expert in 2016 found no more than a 1% chance of tests being incorrectly identified as invalid. It explained that ETS used a structured process to identify possible cheats where three separate conditions, including two human assessors, had to be met before ETS would conclude an individual’s test was invalid.40 However, the Department accepted it had not actively examined whether innocent people were wrongly assessed as cheats. It explained that it relied on ETS’s assessment and the expert assurance it received in 2016.41 We asked the Department whether it accepted that the risk levels, and the number of people affected, might have been small, but the impact on those affected was catastrophic. The Department said that while it had recognised early on that there was a risk that some innocent individuals could have been wrongly caught up in the issue and, while this was a small risk, it still considered it as very important. The Department told us that was critical that the right remedy was in place for people to challenge immigration decisions, which they could do so through the courts. It asserted that it had repeatedly come to the conclusion that the evidence available to the Department, including ETS’s assessment of the test results was sufficient to justify the Department’s finding of deception and that the onus was on individuals to demonstrate their innocence.42 The Department said that individuals therefore needed to get in touch with it to provide the evidence to demonstrate their innocence.43

The NAO found that not all students have been able to obtain the information they needed to demonstrate their innocence, including difficulties obtaining their personal data, such as the original recordings and other material from the day of the tests, or the 38 C&AG’s Report, paras 3.25–3.27, 3.31–3.33, Figures 10, 11 39 Qq 25, 95 40 Qq 107–108 41 Q 94; C&AG’s Report, para 2.17 42 Q 97 43 Q 129 14 English language tests for overseas students voice clips that were used as evidence against them.44 In its written evidence, Matrix Chambers claimed the Department should have done more to investigate weaknesses in the evidence rather than expecting individuals to challenge it in court.45 The Department accepted that people had not always been able to obtain voice recording evidence from ETS and assured us that it had checked “very recently” to make sure that all people who request voice files now received them.46

We were concerned that the written evidence we received from over seventy individuals highlighted “real human concerns” including the cost of legal fees innocent people faced to clear their names.47 One individual told us that they had spent £15,000 on legal fees, having already spent £45,000 on university fees. The Department acknowledged that the amount that some people found they needed to spend to make their case in the immigration system was a real concern. However, it asserted that it operated within a system established by Parliament through the Immigration Act 2014 that had made major changes to the remedies that are available to individuals in these cases.48 The proportionality of the Department’s response

We asked the Department about the impact of the TOEIC scandal on Britain’s reputation internationally, particularly in combination with the Windrush scandal. The Department considered the TOEIC issue to be profoundly different from Windrush, but regret anything which damaged the UK’s reputation internationally or any innocent people being caught up in its response to cheating in English language tests. The Department told us that it had active conversations with colleagues in India and other countries, about the UK, its immigration system, and its education provision and that the system was highly regarded internationally.49 It told us that it was very pleased to welcome students to the UK and that last year had seen a 10% increase in students compared to the year before; the highest number of student visas ever issued.50 The Department did not accept our concerns that its actions reflected a Departmental culture which was not curious and not caring. We received written evidence that described the Department as “disinterested” and reliant on generic evidence, though the Department refuted accusations that it lacked curiosity.51 The Department told us that caseworkers were allowed to take the findings of the ETS results and make decisions on individual cases. It was not an automatic process and each case had to be judged.52

We received written evidence from, Matrix Chambers, which told us that, in responding to cheating, “the Home Office took a knee-jerk reaction without reaction without addressing the nuances”.53 The Department did not accept this characterisation, and told us that its response had been a structured process that relied on a number of sources of evidence. It said it needed to respond to a large-scale fraud and that it had 44 C&AG’s Report, para 2.21 45 Q 107–108; Ev ELT0085 Matrix Chambers submission paras 7–9 46 Qq 108, 118 47 Q 25 48 Qq 104–105 49 Qq 120–123 50 Qq 116, 122 51 Qq 98, 107–108; Ev ELT0085 Matrix Chambers submission para 3b 52 Q 111 53 Q 107, Ev ELT0085 Matrix Chambers submission English language tests for overseas students 15 sufficient evidence to support its actions. The Department maintained that it needed to act quickly in response to widespread fraud, and it had prioritised the need to act against criminals, colleges and people they suspected of cheating.54

We asked the Department if it thought its approach of people taking the Home Office to court was a cost-effective way of dealing with individual cases. The Department said that while rights of challenge were granted by legislation it would in principle like to see the volume of appeals to be less. The Department said that the Court of Appeal had recently issued a judgement that, before the government made decisions that individuals had deceived one authority or the other, government should have put that issue to the individual and given them an opportunity to rebut or provide other evidence. The Department told us that it was trialling schemes which offered individuals the chance to directly respond to the Department’s decisions or provide further evidence to demonstrate their innocence.55 The Department told us it would need to consider whether such measures would be appropriate in TOEIC cases.56

We received written evidence from Migrant Voice which described the difficulties individuals can face in finding a new sponsor after winning their appeals.57 The Department confirmed that individuals who have won appeals should not face rejections from other universities or sponsors. The Department said individuals could contact it directly if they have cleared their names but education institutions still rejected their applications based on their immigration history or immigration databases not being up to date. The Department committed to providing contact details to the Committee so people could raise their concerns via their MP.58 The Department explained that the Home Secretary was actively considering whether the Government could do more to support people affected by the Department’s actions.59 We were encouraged by a written statement published on 23 July which said the Department was reviewing its guidance to ensure it is making the right decisions on TOEIC cases to ensure it is balancing a belief that deception was committed some years ago against other factors that would normally lead to leave being granted, especially where children are involved. The Department also committed to ensuring that there was no further action against people where there is no evidence an ETS certificate was used in an immigration application.60 54 Qq 81, 98, 107 55 Qq 124–128 56 Q 126 57 Q 140; Ev ELT0012 Migrant Voice submission para 9.1 58 Qq 140–143 59 Q 98 60 Immigration: Written Statement, Sajid Javid (The Secretary of State for the Home Department), HCWS1803, 23 July 2019 16 English language tests for overseas students