This is the evidence in response to the Home Affairs select committee enquiry, prepared by Olga Victoria Childs, of Leighton Buzzard, Bedfordshire. I am a non-profit OISC-regulated immigration advisor, regulation number N201600484. I have an LLB from the University of London, an MBA from City University of New York, and two unfinished postgraduate qualifications in progress, including an LLM and a PhD in Public Affairs, both in the US, as well as a CILEX diploma in Immigration law. I can be contacted at advice@immigrationpolicy.org.uk.

I have attended the recent Qadir/SM trial and have written about it in terms of legal commentary, due to my own interest in the topic. However, I am not professionally involved with the debacle and do not represent any clients who are.

The evidence I wish to give, I wish to give in a personal capacity, specifically on the point of ETS and its operations, as well as tests it administers.

I have lived in the United States for many years, and have been involved in various academic pursuits there, including pursuit of two Masters and one Doctoral degree. Due to this experience, I have found myself, in course of the TOEIC affair and subsequent trial, accidentally more knowledgeable on the subject of ETS and how it operates, than majority of those involved in our immigration practice, be it as judges or lawyers, or even those personally involved in the TOEIC scandal.

Please note that this evidence is given ad-hoc from personal knowledge and experience with ETS, and is not meant to be academic or legal in nature, nor does it rely on any research data, other than my personal pre-existing knowledge, which may in parts be subjective.

In the course of those academic pursuits referenced above, I have taken various tests administered by ETS on a number of occasions over the years, and have been generally involved in the educational industry in the US enough to have a fairly good understanding of ETS and the use of its testing in the educational system.
ETS, which stands for Educational Testing Service, is a gigantic multi-national non-profit organisation, which is an undisputed worldwide leader in standardised testing. It administers millions of tests worldwide, and the education system in the United States relies to a very large extent on ETS.

ETS, although involved, among other things, in language testing, is not dedicated to it primarily — and, even to the extent that it is involved with language testing, the cursed TOEIC test represents a very small, “unloved child” segment of this business, which operates very differently from the rest of ETS model, as will be demonstrated below. However, in order to understand the role of ETS in all of this, the nature of TOEIC test and the reasons for the way ETS reacted as it has, once the scandal broke, one needs to understand more about the ETS and its business.

If ETS vanished tomorrow, the entire educational system in the United States, from schools to universities, would collapse immediately. US education system relies very heavily on standardised testing, and ETS is responsible for administering three major pillars of that educational system.
GRE, a graduate record examination, a high-level comprehensive test of cognitive ability across humanities, quantitative skills and specialized science subjects, is a single test used by all US universities as a measure of comprehension ability and skills in postgraduate (Masters and PhD) admissions. Admission decisions to graduate schools, eg Masters and PhD programs, in the US unniversities, are made usually primarily in reliance on GRE test results, and it is again in reliance on those results that the postgraduate research funding, tuition waivers, assistantships and academic stipends are distributed, usually involving tens of thousands of dollars per student.

The role of GRE in the University research industry in the United States is enormous, and the reputation of ETS in administering it is impeccable. The test is administered around the world, likewise to domestic candidates and international incoming postgraduate students, and is the same regardless of a native language (it is administered on a level where high proficiency in academic English is presumed as a starting point, regardless of prior background).

The second pillar of ETS activity is a battery of PRAXIS tests, relied on by most constituent states of the United States for teacher licensing. In order to become a teacher almost anywhere in the US, you have to take and pass a number of PRAXIS tests in your chosen subject, which will certify that you have sufficient knowledge of it to teach it to children in schools.

The third, and perhaps the oldest and best known around the world, test administered by ETS is TOEFL – test of English as a foreign language — which is NOT the same as TOEIC. In fact, they could not have been more different.

TOEFL is the world’s largest and oldest and most widely respected test of English as a foreign language, used for University admissions in the United States by students from all over the world, as well as those non-native speakers living in the US who have not yet earned a US degree. It is a test specifically designed for academic study at University level, and measures academic language proficiency. Its structure mirrors, as far as I can remember, partly a usual battery of comprehension and cognition tests, similar to Catell verbal IQ testing, and similar, although less sophisticated, to that which is used also in GRE verbal component. It also has some resemblance to components of a GCSE English language exam.

TOEFL measures academic English language ability from basic to highly proficient, which, just as in IELTS (a UK-based similar test), can be only reached by those with academic and learning skills on a certain level. For those reasons, for instance, even a native English speaker who is high school student, would never achieve a score as high as, perhaps, myself, because nativity of language use will, in the highest bands of the test, still be a secondary factor compared to the educational level, IQ level and academic experience of the test taker. This is, I would say, common in TOEFL and IELTS , because both of those tests are designed to be used as measure of ability for advanced study, not basic communication. Comprehension level, analytical abilty and test-taking skills are therefore important factors of success in these tests.

Now comes the principal moment many of those involved in TOEIC affair fail to understand. All of ETS tests, or at least GRE and TOEFL which I myself have taken a few times, are administered by ETS directly, through a network of testing centres it maintains. ETS operates ITS OWN network of testing centers, several in each country. The network of testing centres it currently operates used to be owned by a company called Sylvan Prometric. Prometric used to be owned and operated by Thomson Corporation, which also owns Reuters News agency, and was acquired from it by ETS some time ago. There is at least one of these centres in London. These are very high security test centres, where tests are scheduled and taken individually on secure terminals, and results are recorded directly by ETS on their servers. NO ONE EVER , around the world, has cast any doubt on integrity of ETS testing system or its centres.

Tests administered by ETS through its own (formerly Sylvan Prometric) network of testing centres, rule out any pre-collusion of test takers and administrators, because all registration is handled directly by ETS through its own systems, and ETS test centres are not involved in any teaching or coaching to the tests. The tests administered are taken by random individuals with individual appointments at the test centre, who will be people of different backgrounds and ages and nationalities, who did not in any way study or work together. They will not be all taking the same test, nor do it simultaneously. Each will have their own start and finish time.

Crucially, at any time that results from any of testing centres around the world, or individual results, appear to be in any way aberrant, ETS always seeks to re-confirm the score through inviting a candidate for a resit. I was once one of the first people to take a computer-based TOEFL when it was introduced in the US in early 2000, and achieved 99% percentile. I remember to this date a polite letter inviting me to come in again and re-take the test free of charge, to ascertain that results were correct, due to need to ascertain that computer-based testing operates correctly (as I was told). It was only years later that I realised this must have been a security measure, because my scores were seen as too high.

Further, if any allegation is ever made against any person involved in administering or running tests in an ETS proprietary center, anywhere in the world, ETS usually moves to invalidate the scores for all tests taken at that centre, for several months around the allegation, and all students involved are invited for a resit. This is never meant as an accusation of impropriety against all students who will have taken the test in a particular centre, this is simply a preventative measure to maintain ETS reputation for integrity, which is impeccable. All the effect it has, is that the particular scores can no longer be reported to educational institutions. Happens all the time and no one thinks much of it .

This move happens before any investigation. For example, and I speculate, if it became known to ETS that its employee somewhere in the world has administered a test to their own cousin and assisted them, or maybe there was alleged IT tampering, all scores in that centre would be invalidated for 3 months either side of that date, because who knows what that individual could also have been up to. An incident has been reported surrounding one of the ETS UK test centres in 2011, and many scores were invalidated for no apparent reason, as a precaution. This was never a big deal.

Getting ahead, this is why, I think, there has been a significant over-reaction by the Home Office to the ETS “invalid scores” response that it has provided as a label to a wide variety of tests. Term “Invalid scores” may mean something very different to ETS, from what the Home office appears to read into it. This happens all around the world, all the time, and “invalid scores” label is never meant by ETS to be used as an accusation, or let alone proof of deception on which thousands of lives are to be ruined. It is a PREVENTATIVE measure to assure integrity usually taken before anyone will get to the bottom of things, if they ever will, and is cast usually as a very wide net.

I am aware that Mr Milington testified in Qadir/SM trial that he thinks he has been told by ETS that they have taken a “conservative” approach in this case before doling out the “invalid” labels, but I am stil not satisfied that they were using this term in the same way as he understood it, or that they were generally on the same scale of reference in this conversation.

In other words, ETS has impeccable reputation and its operation in 99% of its business completely rules out any possibility of such conduct as has been highlighted in this TOEIC scandal. So, what was different about TOEIC?

The now begrudged TOEIC test was developed, in response to demand, to measure BASIC language knowledge for workplace purposes, in contract with a TOEFL test which was designed for higher education and therefore considered too difficult for those needing to demonstrate more basic, limited proficiency. Since the test was developed for the workplace, it was never intended to be a part of educational system — perhaps for accountancy or professional certificate courses, but not higher education courses.

As such, it is administered very differently from other ETS tests — not by ETS directly, NOT by ETS test centres, but by a network of local affiliates around the world, licensed to both (as I understand) teach to it, and then administer it. ETS, which designed the test, provides scoring services, but responsibility for test administration lies exclusively with the local provider, who could then assebple and schedule test taking groups, which lead to the sort of collusion demonstrated in the Panorama invstigation. It has never been a part of ETS mainstream business, and all of these events have a lot to do with our local colleges involved in this, and very little, if anything, with ETS itself.

If it was, according to his affidavit in TOEIC cases, Mr. Millington who was indeed responsible in the Home Office for approving TOEIC as a test for educational purposes, then it is with him that th eblame lies for everything that ensued. It is only in the United Kingdom that TOEIC for some reason became a test of English ability having something to do with international education. TOEIC was NEVER designed to be used in education at all, let alone in higher education. All Universities in the world accept TOEFL, but no self-respecting University would ever accept TOEIC as evidence of English proficiency for degree study. While it may have been fully appropriate for spouses and perhaps Tier 2 workers, that TOEIC somehow ended up accepted un the UK as a test for education, is, to anyone involved in international higher education, a joke.
Those individuals still revolving in the pool of UK student visa holders effected by the TOEIC scandal who profess that they have taken TOEIC for the purposes of studying law or other University degree, to me personally, are the most suspect — this is a very basic test, measuring a proficiency nowhere near such as required for any University study, let alone study of law. No one about to embark on a legal career will be choosing TOEIC as a starting point for good reasons, nor would any reputable University accept it as such. Even to study a Kaplan accounting course, a candidate should be able to achieve at least some result on IELTS and TOEFL.
It is perhaps in order to carry its brand — and let us not forget it is actually a non-profit organisation — ETS has let the whole TOEIC situation get out of hand, and did not properly monitor the partnerships it had with local organisations administering it. To ETS and its core activities, however, TOEIC and the scandal involving it in the UK was, perhaps, like a cancerous tumour – it was small relative to their size, and they wanted nothing to do with it immediately, and I do not blame them.

If I were an lawyer advising ETS in the US, my advice would have been to do exactly what they are doing, e.g nothing. United States is a litigious country, and anything they can come out and do or say, would expose them to liability they understandably wish nothing to do with, unless judicially compelled. In that respect, I found Justice McCloskey’s comments that ETS attitude was “incredible”, somewhat amusing. Their attitude in fact is exactly what I would expect. They perhaps now wish TOEIC did not exist at all, and that they have never heard of the Home Office — all of which was a very, very small portion of their business, and most of the fees did not go to them either, since they were not the ones administering TOEIC. So they are acting precisely as if this were the case.

Not a single American familiar with ETS is in the least surprised by its reaction to the TOEIC scandal in the UK — what I find the most surprising, and many others do as well, that it somehow turned out — and I was myself surprised to learn — that TOEIC has become in this country a part of educational system, and was relied on for student vsias. This, as is well known to me and others in the educational world, is something which is NOT its feature in the US, not by the longest shot. TOEIC has nothing to do with education. It was, therefore, entirely Home Office’s inability, early on, to draw a distinction between TOEFL and TOEIC, which are VERY different in every aspect possible, that has lead to this disaster.

I also must note that on behalf of all of those who are involved in US academia this way or other, that I was somewhat offended on behalf of ETS by the attitude shown towards it by Home Office officials in 2014 when the scandal broke. Home Office completely failed to recognise that, unlike GRE or TOEFL, the TOEIC tests were not administered by ETS directly, but on its behalf by our own, home grown local educational organisations here in the UK, or to recognise the limited role ETS had in their adinistration, compared to its core testing business. ETS, a largest educational non-profit organisation in the world, had suddenly found itself being berated and called very unfavourable names by UK politicians far across the pond, over an affair in which, it felt, it was not complicit nearly to the degree alleged.

To add insult to injury, Home Office, instead of a police investigation into fraud by British people here in London, responded to the initial events with a PR attack on the distant ETS, which controlled none of this conduct. Further, Home Office initially failed to distinguish between TOEFL and TOEIC even at that stage, and thousands of people who had taken TOEFL, a very different high level test, integrity of which was never in question, had experienced problems with their immigration cases (granted, eventually this was sorted, but some cases were on hold for months, including those who had taken TOEFL in foreign countries, including the US, and were on spouse visas, having nothing to do with students, colleges or TOEIC even remotely — until Home Office finally made the very obvious distinction).

Particularly opportunistic test-takers here in the UK whose leave was curtailed were referring all over the internet to an “ETS scam”, which was drawn from the sort of language Home Office officials were using, but was, mildly put, inappropriate. ETS is not a scam – entire educational system of the United States rests on its shoulders. Our own, local colleges that undertook partnership with ETS to administer its tests and send results to ETS for scoring, were a scam. If the Home Office, which of its own accord somehow mysteriously decided to rely on this process for student ability assessment, for which it was never designed, had initially accepted that it was not ETS’ fault, I am certain they would have received more cooperation.

It appears to this date irrational to me and any other international observer, that the Home Office would not reinstate the use of TOEFL, which is good enough for Harward, Yale, Princeton, Stanford, and any other leading university in the US and the world. This currently further diminishes our ability to compete in higher education with US universities, as an international student overseas would now have to take TOEFL for the US, and IELTS as well if they want to also consider the UK.

This way, the scandal that occurred as a fault of our own people here, in the lowest band of education and language ability, in the shady world of below-degree courses, has now needlessly affected our educational competitiveness on the highest level. At the Qadir/SM trial, Justice McCloskey asked at one point, what the acronym TOEFL stood for, and no one present knew, neither on the Home Office, nor defense team (I raised my hand, but was not called upon). This was a disgrace. I was pleased to read in the judgement that he had, in the end, been able to Google it.

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