I have been fascinated these past weeks that The Guardian, on a high from its newly acquired position as a sole resolver of immigration problems (in lieu of system working as it should, and sometimes in spite of it having worked as it should)  has dug up the long-rotten corpse of the TOEIC scandal, and falsely claims that it “has not received headline treatment”. Really? For 2 full years in 2014-2016 this was ALL there were immigration headlines about.

Perhaps the current generation of Guardian journalist were still in primary school 5 years ago. Otherwise it is just unabashed shameless speculation, a “second try” to push something on the public whose attention span is short, believing this to be the right time, the tide of anti-migrant sentiment having turned. But please do not lie to us that this hasn’t received headlines!

Part of the reason this has come back is that it never quite died, of course — the Supreme Court proceedings lasted well into 2017, parliamentary enquiries even longer, and the National Audit office has just the released report on this now, which can be found here. Apart from some inept factual and naming inaccuracies, I found virtually nothing new in the report that I did not already know, and I carefully read all of its 47 pages and stared at all of its graphics.  What is more telling to me, is what is missing from the report, as I will explain below.

But first, I want to explain to those who have indeed joined us more recently than all of this, how and why I became so deeply involved in this matter, even though neither I, nor anyone in my family, has ever taken a TOEIC test, and, in the end, despite writing at least around 20 blog entries about it, including  chronicling the Qadir/SM trial I sat through fully, meetings and conversations with dozens of those affected,  strategizing – as in here, and efforts to organise an action in the United States to force ETS disclosure of recordings, and supplying evidence of my personal experience with and knowledge of ETS  to the House of Commons Home Affairs Select committee it its investigation, I ended up not actually representing a single person accused on TOEIC fraud, in any capacity. In fact, in 2 years or so that I have been involved  in “the TOEIC scandal”, I have come almost completely around on this and hugely changed my point of view. (I voiced some of my disillusionment here).

I first became involved in what is now known as the “ETS scandal”  in its very beginning, exactly 5 years ago, in the Spring of 2014. I did not practice as an immigration lawyer then yet, and was not aware of the Panorama program which has apparently already aired. A family member had made a time-sensitive ILR application, which was supported, actually, not by TOEIC at all but by TOEFL, a standard US Academic test.

The scandal in question did not have anything do with TOEFL – a test completely different from TOEIC in that it is administered by ETS directly in its own test centers, and leaves no opportunity for similar fraud as occurs with TOEIC. But, at that time, an internal directive had been issued to stop accepting any ETS qualifications, and we have been sent by PEO to re-test via IELTS.  Officers and staff were not yet themselves sure what was going on. The issue affected also those who had taken TOEFL overseas – and it is, let’s remember, a test of preference worldwide. These types of cases had absolutely nothing to do with unfolding scandal at all, but they had all been initially “frozen”.

We were initially told that if we retested via IELTS and provided results,  application will be granted. But that did not happen – just as we managed to do that, a couple of weeks later, a new “ETS Taskforce” had been created in Sheffield, to which all “ETS related” cases had been shipped in bulk. This was a major disaster for us, as our circumstances requires ILR in a very short timeframe. I spent another painful 2 months fighting the invisible ETS Taskforce, and even initiating pre-action protocol – explaining, basically, that TOEFL and TOEIC are different things. We were very lucky that the Home Office saw the light on that, in the early August of 2014, and before the sh*t hit the fan big time. In the end, TOEFL test takers were not affected, but the delay would have been immense.

(To get a bit ahead of myself, the report that came out now seems to mention that TOEFL test takers were initially affected as well, and fails to address at all any affect on them, including requests for resits, in these cases prompted not by the doubt over results, but by the fact that all ETS-related certificates were suddenly no longer acceptable as of February 2014 when HO decided to reject ETS as an entity, and applicants were not warned of this, presumably in order to “catch” more coming in, or delays).

We were also lucky because we lived in Northern Ireland then, and, as such, all threats of litigation were then looked at by the dedicated – and less overwhelmed – office in Glasgow. At the time, I was about to enter the 2-year professional course on my way to becoming a solicitor in Northern Ireland. I had passed their qualifying  exam and was admitted to a professional skills course at University of Ulster. I was in search of an office in which to do an apprenticeship.

And then, suddenly, came the TOEIC scandal, which I had nothing to do with, in the end, but suddenly found myself involved in, and realised I know a lot about the subject of it – more than almost anyone involved. That was because I had been a product of US educational system in the past, am familiar with ETS and have myself taken TOEFL a number of times.

The short brush with the “ETS scandal” in a TOEFL-taking family member’s case in early 2014 was my baptism by fire. I also felt that good old ETS, a gold standard of our lives for anyone who went to school in the States,  was getting an undeserved bad rap for the misdeeds of parties it had no control over.  I abandoned plans to become a solicitor in Northern Ireland, moved to England and  filed the application to register with OISC. This is how it all started for me.

And now, 5 years later and having just closed by UK-based practice under the auspices of OISC — and what a ride it was! – I am staring at this report. What, if anything., do I find interesting in, or about it?

It lacks any sort of conclusion or overall recommendation, or rather, humanisation of those, even be it very few, people who were indeed wrongfully accused. It mentions that out of 391 people stopped by Border Force, two profess that they have not taken TOEIC at all. I find this plausible — I generally have found, over the years, huge problems with the system of “flags” Border Force relies on, and people being put on those flag lists for unlawful reasons or by mistake. Border Force reacts with its usual unprepared and uninformed fanfare – the result of lack of training and overworked personnel, rather than evilness- and recourse, redress or acknowledgement of mistakes is very limited, even more so than in the UKVI itself. Further, however, Border Force does not issue or assign flags – UKVI does, so its way should the grievance go. I find it fascinating that these two people, two actual lives, are completely brushed aside, including by the report – who knows what happened to them!

Yet, things could have of course been more complex than this. The report reveals stunning, in my mind, figures – the only really interesting thing about it actually – that the list of invalid, questionable or whatever test instances apparently supplied by ETS includes more than 10,0000 tests that could not be matched to any particular person of whom UKVI had a record. (I set aside people marked as UK nationals, which indeed could have been in absence of other nationality indicator – as I understand, registrations were handled by colleges themselves, not by ETS directly as would be with its other tests). I find it striking that no one asked where do these numbers even come from.

Why would such a high number of people take a TOEIC test in the UK if not for immigration reasons, or rather, not being themselves immigrants? I can see an odd case of someone who had gone through immigration years ago and is now a citizen taking the test later in life for some low-level professional licensing purpose, which can also explain the UK national thing – but they will not be in the double digit thousands! Unless another, yet uncovered scheme of cheating in something else, not immigration, also existed and has effectively not been discovered.  In any event this sufficiently calls into question the overall matching process.

As Home Office never recorded test instance numbers back in those years, it could not actually ask ETS to verify individual tests that it knew were submitted by known immigrants –  the process flowed completely backwards. ETS dumped some names, and HO started to look for those people on CID. I assume this had produced A LOT of similarly named people – and if indeed location of exams could be incorrectly recorded, so could dates of birth. I assume that indeed a lot of people who never took TOEIC were wrongly flagged. I am surprised the report is not looking more closely into the matching errors.

Then of course the other unresolved issue, which I am most upset about NAO not addressing. Whether or not one has taken TOEIC, and whether or not one has actually submitted it for  immigration purposes at any point, are different things. A number of people whom i personally talked to, have been flagged and subjected to recriminations even though they never actually submitted a TOEIC test to the Home Office with an immigration application.  in fact the matching being the way it was, appeared not to distinguish at all between those who submitted the tests as apparently false evidence  in their immigration process, and those who sat the invalid test but then did not take it further.

Maybe they did not cheat, but were taking it for education or work reasons unrelated to their visa, while decided to take a more reputable test later for immigration purposes. Maybe they did sign up to cheat, but the experience freaked them out and their more moral side took over the next day, and they never submitted it to anywhere, going in to sit IELTS instead. This is the learning curve many immigrants go through. Those who cheated but not for immigration purposes (e.g not vis a vis the government), or those contemplated cheating but then changed their mind and went down the honest road, should not be penalised in the same way as those who did not repent and went all teh way through, and continue to scream and yell about the “ETS scam” even today, unhelpfully cursing one of the world’s most reputable organisations.

I personally know and have met with the unnamed individual mentioned in para 2.22 of the report, who claims he was accused incorrectly because he has never been to Leicester. That particular individual was a very active, boisterous fighter for TOEIC justice, who had, by the time they met me, recruited a number of activists and barristers into his camp. His presentation was a well -rehearsed show: he was constantly threatening to rip his heart out and all such like, and it clearly had effect on timid barristers and generally the sort of English unused to such “all-in”  manners. He came across to them as a man on a verge, driven to extremes in search of truth. As a person who works within immigrant communities and hails herself from a country with a very different culture, i did not buy his theatrics one bit.

I personally found the dude to not be credible, and all of it a show. I am absolutely certain he did cheat on a TOEIC test. Sure, I believe he has not been to Leicester and that his record wrongly reflected that he sat it there, creating some confusion. I do not know how that happened, but I do know matching was a big problem in this process, plus maybe a college’s main office was in Leicester. Yet, many immigrants cling to minor admin errors in their refusals, even when the refusals are still otherwise correct. When pressed further, he conceded that he did take TOEIC and then completely lacked answers to further questions – such as, where and when did he take it, if not in Leicester, how and when did he register and pay for it, a copy of his test certificate and such like. Since I do not believe one could completely lack answers to these questions about an event within the last 3-5 years, I came to assume that the answers would be so unfavourable that he was reluctant to reveal them. He would be a terrible witness and stood no chance in any court.

This brings me to a next point. The Home office always assumed, in this or any accusatory scenario, that  those innocently accused will seek justice, and those rightly accused will walk away quietly.  That is why, as an immigration practitioner, one would always teach clients to fight if their refusal involves an unfair accusation of some dishonesty – be it sham marriage, false document etc. You have to protest or the system assumes you agree. This is not empirically true.

I often find cases in which people failed to assert protestations following a similar accusation, when they had no money, were too confused or scared, were afraid to make things worse, or simply got pissed off and decided the whole UK thing was not worth their while. I also find that the most vocal protesters of their own innocence are unfortunately often those who have nothing to lose, but calculated from the get go that a combination of emotional drive, white saviour complex induced by the likes of the Guardian, and imitating of the ripping of your heart out  publicly once in a while, maybe with an occasional setting of oneself on fire for good measure, will do the job and it will never come to evidence. I think just as I describe in the post linked to above, the movement for the TOEIC justice for the wrongly accused few collapsed because of the brazen, brash conduct of the many who were in fact accused credibly, spoke no English, or could not offer any explanation as to why they took TOEIC test in the first place.

This explanation would be critical – as is explained in all the links above which one can read if they are interested, TOEIC test was never intended by ETS for the purposes for which it came to be used in the UK. It is not an appropriate test to enter a degree program, and never was. As a person somewhat familiar with higher education entrance testing, I’d afford a credibility of zero to any person who says they took TOEIC in order to enter a degree program, or any institution that accepted them into a degree program based on TOEIC.

TOEIC is a very, very small part of ETS business and it is not intended for educational purposes at all. Its widespread use in the UK was an unexpected anomaly, and it is not unreasonable to believe, as ETS now does, that the anomaly was effectively caused by a number of people figuring out the way it can be exploited – and, subsequently, test-takers being recruited to the test predominantly because of the possibility of it being doctored. As such behaviour is sadly normalised in many cultures, like Justice McCloskey said in AM, many will have been driven by contempt of the immigration system or otherwise being not bothered, and not, as everyone seems to assume by lack of requisite English skills to do it themselves.

The NAO report, which seems to have, as its not very well articulated goal, an objective to determine whether the false accusation rate was low enough that it was reasonable of the government not to take any special measures rather than to wait for the appeal system to sort this out, does not really address any of this.

In fact, it does recognise that there were wrongly accused – as everyone always knew there was – but seems to lean towards the conclusion, not very well spelled out, that majority of them obtained some redress. It then abandons the remaining minority, as if a statistical error does not within contain people whose lives were ruined.  In my 5 years of reporting on this, I now personally believe that I have not met anyone who was wrongly accused of cheating on their TOEIC test, regardless of whether I believe that the circumstances were such that action taken against them was justified under the immigration law. I bet Amelia Gentleman hasn’t either. But statistics does not lie – and so, they must exist, although they are likely in a quiet minority and far away –  and we must continue to worry about what happened to them and seek to redress the wrong done to them. If we can find them.



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