The tribunal found the Home Office did not adequately prove the students had cheated on the ETS TOEIC exam necessary to obtain their visa, before detaining and deporting them.
The Home Office’s actions came after a BBC Panorama programme exposed the fraudulent practice at one of ETS’s test centres in east London.
Undercover BBC journalists were asked to pay £500 for a guaranteed pass where proxy test takers took the exam instead of them. The documentary, aired in February 2014, also showed the centre officials giving out answers to the students.
Even without truly sitting the test, the journalists managed to obtain a certificate.
“Apart from the limited hearsay evidence there was no evidence from the protagonist in this saga, the ETS organisation”
The Home Office’s subsequent investigation found that 46,000 tests at ETS centres were obtained through fraudulent methods. A crackdown saw 65 colleges lose their licence to enrol tier 4 students and 19,000 students told to leave the country or barred from re-entry.
However the Upper Tribunal (Immigration and Asylum Chamber) found the Home Office lacked evidence for its actions.
“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,” Justice McCloskey and Deputy Upper Tribunal Judge Saini ruled.
The judgement came in response to two individuals approaching the immigration and asylum tribunal. One of appellants was an accountancy student, Ihsan Qadir, who first came to the UK in 2011.
When Qadir returned to London from a short trip to Pakistan in September 2014, he was detained at the airport and told he could no longer live in UK as he had secured his visa through deception.
The tribunal, referring to Qadir, noted: “We found no indication of invention, exaggeration or evasiveness. The Appellant (Qadir) was attentive to all questions and provided his answers in a careful, pensive fashion.
He at all times sought to engage with the tribunal and clearly realised the importance of telling the truth. His answers to the vast majority of questions were of appropriate length, comprehensible and intelligible.”
Qadir’s solicitor, Atif Wattoo, told The PIE News that in many cases students who were deported were not given a chance to appeal the deportations.
“There was no error in the judgement so I’m sure the Home Office really has no grounds for appeal,” he commented. “The judgement was based on evidence and finally the students will get justice.”
According to politics.co.uk, the tribunal also heard evidence from a voice recognition expert, who took issue with claims from ETS that voice recognition software could have picked up tens of thousands of cases of fraud, following on from the cases of fraud found at a few testing sites.
McCloskey said the testimony of this expert “raises profound questions about the witness statements of the secretary of state’s officials and the information emanating from ETS”. ETS does not wish to comment on the issue.
Sejal Shah, who lived in London with her husband and a child, was also deported by the Home Office as a result of the investigations. Shah was working in London on a Tier 2 visa after completing a degree from the University of Wales: Trinity Saint David.
“It is clear that there are many innocent people who speak impeccable English who have been denied their right to remain in the UK”
She had sat the English test prior to her admission at the university and securing a degree from a reputable UK university could have proven her English language proficiency. According to Shah, officials told her employer to revoke her sponsorship.
“With no employment and no desire to face further humiliation, we decided to move back to India,” she said. The couple have continued to pursue the case from India through their lawyer in the UK.
“We are very happy with this ruling. We will continue our legal battle until my clients receive justice and due compensation for humiliation of being labelled as fraudsters and the hardship they had to face,” Shah’s representative, Urvi Shah, of Vision solicitors said.
“They had set up a life in UK with their toddler and were abruptly uprooted and had to begin afresh in India.”
Keith Vaz, the chairman of the Home Office Select Committee, has promised to launch an investigation into the Home Office contracts process as a result of the ruling.
Speaking to The Independent, Vaz called the verdict “devastating” 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 [over] reaction of the Home Office.”
A Home Office spokesperson said: “We are very disappointed by the decision. The government continues to tackle abuse of our immigration system and protect the reputation of our world class education institutions. The investigation into the abuse of English language testing in 2014 revealed extremely serious, large scale, organised fraud.”