TOEIC English language tests – alleged dishonesty

This is a story that goes back a long way. In 2014 a BBC Panorama TV programme revealed that there was a huge amount of cheating and dishonesty in connection with the Test of English for International Communication (TOEIC). At that time this was an English language test that migrants had to take for their visa applications. 

It was established that in some cases migrants had got “proxies” to take the spoken part of the test for them. There was incontrovertible evidence of this, which was evidently done on what you might call an industrial scale. How the organisation which provided the tests, Educational Testing Services (ETS), allowed things to get like this is an interesting question. 

ETS – a US-based organisation – is evidently still going strong and according to the internet it is the world’s largest private educational testing and assessment organisation. Well, good, glad to hear, but not surprisingly the Home Office removed it from its list of approved English test providers. 

ETS had tried to rectify the situation by carrying out “voice recognition” software testing, which was supposed to identify those who had cheated. They identified some 40,000 of these cases. These migrants had their visas cancelled or their applications refused and an indication of deception put on their Home Office record. 

But how reliable were these voice recognition tests? Here opinions vary widely, depending on which expert you ask. What certainly is true is that many migrants challenged these adverse findings, and thus a large amount of “TOEIC litigation” came about.

And it is still not over. In a recent judicial case in the Upper Immigration Tribunal (R (MD Shahadat Hossain) v Secretary of State for the Home Department JR-2024-LON-000328) this subject was looked at afresh. 

The applicant (nationality not stated) had been accused of dishonesty and had his application refused on this basis in May 2014. After that it all got rather complicated, and there was a period of absconding, but subsequently in early 2021 he submitted a human rights application to the Home Office, which was refused. But being a human rights application he had the right of appeal to the First-Tier Immigration Tribunal, and the case was heard in March 2023.

He did very well at the FTT, which evidently decided that the burden of proof of cheating had not been satisfied, and thus made a finding that he had not cheated. The finding of the Tribunal was binding on the Home Office, who then granted him limited leave. 

He subsequently applied to the Home Office for settlement based on ten years’ continuous lawful residence but was refused – not surprisingly – because of the period of absconding. He nonetheless challenged again. As this was an application for settlement it was not deemed to be a human rights application so the only remedy was Judicial Review at the Upper Tribunal.

But here again he did well. Although it was clearly the case that there had been a period of absconding, and thus settlement would not normally be available, something very unusual happened. The UT made reference to a document that had been issued by the Home Office in a previous case, which said:

“In all cases, the Respondent [Home Office] confirms that in making any future decision he will not hold any previous gap in leave caused by any erroneous decision in relation to ETS against the relevant applicant, and will have to take into account all the circumstances of each case.”

This, as we say, was a very unusual situation. But the UT held that this document was legally effective, and so Mr Hossein won his case. 

The reverberations from TOEIC are evidently still continuing. If you have any matters or issues about this we are GSN Immigration can try and help you. 

Oliver Westmoreland

Senior Immigration Lawyer