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Accused in TOEIC cheating scandal have right to appeal in UK says Court

The Court of Appeals has ruled that those accused of cheating in a 2014 investigation into two ETS test centres have the right to challenge the original ruling from within the UK. The courts had previously ruled that out-of-country appeals were a fair route for the TOEIC cases, but the ruling by Lord Justice Underhill on December 5 overturns that claim.

The appeal, held here at the Royal Courts of Justice, concluded that an out-of-country appeal was not satisfactory in this caseThe appeal, held here at the Royal Courts of Justice, concluded that an out-of-country appeal was not satisfactory in this case. Photo: Flickr/ panda chan

Underhill made it clear that the allegations of cheating were not the primary concern in this appeals hearing

A BBC Panorama investigation uncovered fraud in the ETS test centre at Eden College International, in east London, in conjunction with Studentway Education in west London. Studentway purported to be experts in the TOEIC test, which immigrants to the UK must pass to show their English proficiency.

“To assume that everybody that went through a test with this  organisation obtained a certificate fraudulently, is completely unjustified”

Subsequently, the Home Office (then under the control of now-prime minister, Theresa May) led a crackdown on what it termed ‘bogus’ colleges, and up to 28,297 students were served with “refusal, curtailment, removal decisions” according to a Home Office report.

This was after a Home Office investigation into the scale of the abuse, conducted alongside test company ETS, which was later condemned by an immigration tribunal for being based on “hearsay”.

However, the Home Office approach has been seen a heavy-handed by some, including by some MPs.

Labour MP and former education and work and pensions minister Stephen Timms told The PIE News that the government’s actions were puzzling, and the treatment of the students was a “disgrace”.

“Clearly, there was a problem, there’s no dispute about that, there was some fraud, but to just assume that everybody that went through a test with this particular organisation obtained a certificate fraudulently, is completely unjustified,” Timms added.

“An out-of-country appeal would not satisfy the Appellants’ rights”

In his ruling on Ahsan v Secretary of State for the Home Department, Lord Justice Underhill told the court that in line with the human rights claim made by the defendants, a judicial review while the alleged cheats remained in the UK was the fair outcome of this appeal.

“An out-of-country appeal would not satisfy the Appellants’ rights, either at common law or under article 8 of the Convention, to a fair and effective procedure to challenge the decisions to remove them,” Underhill said.

In his summary of the decision, Underhill made it clear that the allegations of cheating were not the primary concern in this appeals hearing, but as it is fair to expect oral evidence would be needed in any challenge of the Home Office’s decision to deport the people in question (and as “facilities for him or her to do so by video-link from the country to which they will be removed are not realistically available”), the persons in question should be allowed to challenge the ruling by judicial review in the UK.

After the ruling, the lawyer representing Mr Ahsan, Greg Ó Ceallaigh, commented that his client was successful because an out-of-country appeal was not judged to be “an adequate alternative remedy”.

Ó Ceallaigh added that this would have been the case whether Lord Justice Underhill had consulted either common law or Article 8 of the European Convention on Human Rights.

However, this is not the end of the case, and the process of appeals and reviews will continue.

Underhill added that the conclusion of this appeal was far from satisfactory.

“[The situation remains a] very messy and unsatisfactory state of affairs… a yet further illustration of the difficulty and complexity of the law in this area,” he said.

A timeline of the Home Office investigation can be found here.

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