The work of the Immigration Directorates (Q4 2015) Contents

2Visa applications

4.The majority of people from outside the European Economic Area (EEA) wishing to visit or relocate to the UK require a visa to do so. Responsibility for processing visa applications rests with UK Visas and Immigration (UKVI), a directorate within the Home Office. In 2015 UKVI received 2.84 million visa applications (an increase from 2.75 million in 2014). The vast majority of applications were for temporary visas for those visiting the UK or transiting through it. In this Report we focus on applications for longer-term visas. Anyone who is not a resident of the EU, EEA or Switzerland will require a visa to visit the UK for a period longer than six months. Table 2 below provides a breakdown of the number of visas, excluding visitor and transit, granted in the years 2011–15.

Table 2: Visas granted by reason (excluding visitor and transit visas)

Year

Work

Study

Short-term study*

Family

Dependant joining or accompanying

Other**

Total granted

2011

149,310

261,870

61,406

44,940

14,155

33,126

564,807

2012

145,110

209,749

68,351

40,149

11,700

32,481

507,450

2013

154,760

218,625

77,601

33,162

11,720

36,182

532,050

2014

167,147

220,041

73,607

34,876

11,065

39,341

546,077

2015

165,977

210,348

62,626

37,859

9,801

47,717

534,328

Change: latest year

-1,170

-9,693

-10,981

+2,983

-1,264

+8,376

-11,749

% change

-1%

-4%

-15%

+9%

-11%

+21%

-2%

* The Short-term study category (previously described as ‘student visitor’) allows individuals to come to the UK for 6 months (or 11 months if they will be studying an English Language course) and cannot extend their stay.

** Other category includes EEA family permits (+5,324), the family route (+2,983) and Tier 2 skilled work (+1,365).

Source: Home Office, Immigration Statistics, February 2016, Table Vi_04_q Visas, February 2016

The nationalities granted the most visas (excluding visitors and transit) were Chinese (93,076; excluding Hong Kong), Indian (85,403) and US (35,124).2

Processing applications

5.Applications for a visa can be made from within the UK (‘in-country applications’) or from outside the UK (‘out-of-country applications’). Data released by the Home Office provide a snapshot of the sources of UKVI’s workload:

In our Q2 2015 Report we voiced concern at the high number of cases still to be loaded on to the Case Information Database (CID). The Government explained the reasons for this:

The number of cases still to be loaded on to the Case Information Database (CID) was higher in Q2 2015 than Q2 2014 as a result of a significant rise in Human Rights applications at the very end of Q1 and first days of Q2 ahead of the implementation of the latest phase of the Immigration Act 2014. These cases are not a backlog: 7,219 applications equate to approximately 4 days’ average intake for temporary and permanent migration paper-based application routes.5

Whether or not the number of cases still to be entered on to the database can be considered a backlog, we note that it has almost doubled in the space of three months despite a fall in the number of applications (154,291 in Q4 compared with 163,505 in Q3).

Customer service standards

6.From January 2014 various service standards have applied to non-complex cases; these are straightforward cases where the customer has been compliant and met all of their obligations. The service standards are set out in the Tables below:

Table 3: Service standards for processing visa applications: in-country applications

Type of visa

Customer Service Standard (target 98.5%)

Temporary*

8 weeks**

Permanent

6 months

Sponsorship (pre-licence)

8 weeks

Sponsorship (post-licence, basic compliance assessment or renewal)

18 weeks

Premium service

Same day

* With the exception of Croatia and ECAA for which the standard is 6 months. Temporary migration visa applications include those under Tiers 1, 2, 4 and 5 and those for spouse/partner.

** One week is defined as five-working days

Source: UK Visas and Immigration, Temporary and permanent migration transparency data, February 2016, Notes

Table 4: Service standards for processing visa applications: out of country applications

Type of visa

Customer Service Standard

All non-settlement visas

90% in 3 weeks; 98% in 6 weeks; 100% in 12 weeks

Settlement visas

95% in 12 weeks

Family Reunion and Refugee Resettlement Programme

95% in 12 weeks of the application date and 100% within 24 weeks of the application date.

Source: UK Visas and Immigration, Temporary and permanent migration transparency data, February 2016, Notes

Service standards do not apply to cases defined as non-straightforward. In our Report on Q2 2015 we questioned the benefit of having a performance benchmark that excluded the significant number of cases that were complex. The Department told us:

We only exclude cases from the service standards which are particularly complex, for instance where we are required to undertake a Human Rights assessment, or where we are otherwise prevented from taking a decision. This might be where the customer has failed to respond appropriately to our enquiries, where a face to face interview is required or where there is an ongoing investigation or litigation, which could have a bearing on our decision. We are not able to provide a service standard for these cases as we are dependent on information from other sources and we cannot control the timescales for its provision.6

7.In Q4 2015 service standards did not apply to 26% of cases, an increase from the previous quarter (19%).7 This Committee has in the past expressed concern about the way in which internal service standards operate. Since UKVI introduced its own customer service standards in 2014 we have seen the goalposts shifted, as UKVI have changed the parameters without consultation or explanation, and a lack of transparency, particularly when UKVI choose to exclude vast numbers of cases from the standards and provide only general observations to justify such action. We reiterate the conclusion from our previous report that if service standards are to mean anything their application must be transparent and the criteria on which they are based justified. Whenever UKVI wishes to amend the customer service standards, this Committee must be notified by a letter from the head of UKVI.

8.Table 5 shows that the vast majority of straightforward in-country applications are being progressed within the service standards.

Table 5: Work in-progress Casework summary against service standards: in-country applications

Cases in progress within service standards

Cases in progress outside service standards: less than 6 months

Cases in progress outside service standards: more than 6 months

Total number of cases in progress outside service standards

Cases where service standards do not apply

Q1 2015

60,759

19

45

64

41,452

Q2 2015

87,576

51

62

113

31,274

Q3 2015

122,006

121

17

138

28,468

Q4 2015

100,675

50

204

254

35,743

Source: UK Visas and Immigration, Temporary and permanent migration transparency data, February 2016, Table InC_5

Data for those cases concluded in Q4 2015 show a number of areas where service standards have not been met:

UKVI states that it is meeting its service standards for in-country visa applications in the overwhelming majority of cases, although we note that the number of cases in progress that will not meet these service standards, while very low, is steadily increasing. We also note that, at the end of Q4 2015, the number of cases that had been received but had yet to be inputted was 85% higher than at the end of the previous quarter despite the overall number of applications being lower. We are concerned that this may be the first sign of a backlog developing. In response to this Report, the Home Office must set out the steps which UKVI is taking to address this potential backlog.

9.With regard to out-of-country applications, there also appears to be a high number of outstanding cases in the refugee/humanitarian family reunion category of visa applications. UKVI’s target is to process all such applications within 24 weeks and 95% of cases within 12 weeks but, as the table below shows, many have been outstanding for over a year.

Table 6: Out-of-country refugee/humanitarian family reunion visa applications in progress: Quarter 4 2015

Category

Total outstanding applications

Outstanding: less than six months

Outstanding: six months – one year

Outstanding: more than a year

Family reunion

1,373

1,032 (75%)

1

340 (25%)

Refugee resettlement programme*

20

6 (30%)

0

14 (70%)

* This table contains data on the visas issued in relation to part of the Refugee Resettlement Programme. Specifically, these figures do not relate to those resettled under the Syrian Vulnerable Persons Resettlement Scheme.

Source: UK Visas and Immigration, International operations transparency data, February 2016, Table Visa_05

In response to this report UKVI must explain why so many cases in the family reunion and refugee resettlement categories have not been progressed within the customer service standards and what steps are being taken to address this. Processing of such applications should be a particular priority given the ongoing humanitarian crisis in the Middle East and Europe.

Sponsorship and licensing

10.Applications under Tier 2, Tier 4 and Tier 5 require a sponsoring body. Under Tier 2 (skilled workers) and Tier 5 (Temporary workers) the sponsor must be an employer based in the UK. Under Tier 4, the sponsor must be an education provider. Such organisations have to apply to UKVI to get sponsor status. There are currently 27,489 Tier 2 sponsors, 1,466 Tier 4 sponsors and 3,752 sponsors under Tier 5. The tables below show the number of sponsor applications for each Tier and the number of sponsors registered overall.

Table 7: Number of new sponsor applications in each Tier

Quarter

Tier
2

Tiers
2, 4

Tiers
2, 4, 5

Tiers
2, 5

Tier
4

Tiers
4, 5

Tier
5

Total

Q4 2014

1,916

5

0

57

41

2

122

2,143

Q1 2015

1,623

5

0

47

43

1

160

1,879

Q2 2015

1,792

8

3

47

42

0

133

2,025

Q3 2015

1,973

6

0

38

38

0

106

2,161

Q4 2015

1,876

3

3

33

31

0

90

2,036

Source: UK Visas and Immigration, Sponsorship transparency data, February 2016, Table SP_02

Table 8: Number of sponsors registered on points based system (PBS) routes

Quarter

Tier 2

Tier 4

Tier 5

Q4 2014

27,088

1,590

3,622

Q1 2015

27,239

1,569

3,668

Q2 2015

27,422

1,529

3,736

Q3 2015

27,504

1,450

3,751

Q4 2015

27,489

1,466

3,752

Source: UK Visas and Immigration, Sponsorship transparency data, February 2016, Table SP_01

11.With the exception of the recent fall in Tier 4 visas being processed within service standards that we identified above, UKVI has consistently met the customer service standards for processing sponsorship applications introduced in Q1 2014 (as set out in Table 3). The average number of days to process a sponsor application in Q4 2015 was 22 days (a slight increase from 21 days in Q3).10 In our Report Immigration: Skill Shortages we concluded that the period of time allowed for an organisation to give further information in the event of a suspension or revocation of a licence was not long enough. We note that UKVI does not agree that the current arrangements require review. We remain concerned and will continue to monitor the system of sponsorship. We will hold UKVI to account if we find that the process of suspension and resolution is not being administered effectively.

12.UKVI is meeting its own 40-day performance target on processing sponsor applications. We question whether that standard is sufficiently stretching, given that the average number of days taken to process an application has consistently been less than the customer service standard.

Enforcement

13.UKVI may visit a body applying to be a sponsor before making a decision on its application for a Tier 4 licence. UKVI also conducts follow-up visits to ensure bodies are complying with the conditions of their status as sponsors. Non-compliance can result in a sponsor’s licence being suspended or revoked. In response to our Q2 2015 Report the Government told us that it had “invested a significant amount of time in developing the investigatory function of sponsorship compliance. It is now far more targeted against those where we have intelligence to indicate there is abuse”. The Government explained that since 2013 they have “aimed to make as many unannounced visits to sponsors as possible, in line with the recommendations of the HASC and our own operational risk assessments.”11

14.An overview of UKVI’s work in enforcing the sponsorship regime is set out in the tables below.

Table 9: Visits to sponsors

Quarter

Pre-registration

Follow-up visits
(of which unannounced)

Tier 2

Tier 4

Tier 5

Total*

Tier 2

Tier 4

Tier 5

Total

Q4 2014

189

19

4

220

1,089
(777)

52
(35)

40
(11)

1,224
(844)

Q1 2015

286

26

8

323

1,002 (644)

87
(42)

31
(11)

1,166
(719)

Q2 2015

276

47

7

377

791
(498)

39
(29)

34
(5)

914
(506)

Q3 2015

295

14

7

320

797
(480)

27
(16)

27
(5)

874
(511)

Q4 2015

311

14

4

330

529
(316)

37
(21)

20
(9)

601
(349)

* Total also includes visits to bodies whose licences cover multiple tiers

Source: UK Visas and Immigration, Sponsorship transparency data, February 2016, Tables SP_08 and SP_09

Table 10: Action taken against sponsors

Quarter

Tier 2
Suspended

Tier 2
Revoked

Tier 4
Intention to revoke

Tier 4
Revoked

Tier 5
Suspended

Tier 5
Revoked

Total

Q4 2014

84

196

13

22

8

5

328

Q1 2015

108

190

16

18

8

14

354

Q2 2015

159

149

20

16

4

3

351

Q3 2015

217

227

88

24

9

8

573

Q4 2015

142

169

60

14

1

4

390

Source: UK Visas and Immigration, Sponsorship transparency data, February 2016, Table ScC01

Table 11: Response to notifications of potential non-compliance of those sponsored

Quarter

Total processed notifications

Curtailment action required: Tier 2 and 5

Curtailment action required:
Tier 4

No further action required

Leave curtailed

Q4 2014

32,648

3,385

13,292

15,971

9,632

Q1 2015

44,776

15,269

19,619

9,888

17,297

Q2 2015

39,318

12,664

16,587

10,067

16,072

Q3 2015

30,750

5,176

11,213

14,361

9,364

Q4 2015

29,606

11,055

5,666

12,885

8,364

Source: UK Visas and Immigration, Sponsorship transparency data, February 2016, Table SN_01 and SN_02

15.Over the last 12 months the number of actions taken against sponsors has remained broadly consistent while, over the same period, the number of follow-up visits has more than halved. This suggests that UKVI has successfully improved the targeting of its post-licence enforcement work. The Home Office must explain the extent to which pre-registration visits have served to prevent potentially illegitimate sponsors from gaining sponsorship status. UKVI should also consider whether increasing its investigative actions at this stage of the process might prove an efficient use of resources over the longer term.

16.Universities UK told us that the approach of the Home Office to compliance was opaque and occasionally arbitrary:

For instance, institutions do not always receive sufficient feedback from officials following compliance inspections on the basis of which they could make improvements and adhere with what the Home Office sees as best practice. We believe there are many improvements that could be made to improve the situation for sponsors.12

An inspection of the Tier 4 curtailment process in 2015 by the Independent Chief Inspector of Borders and Immigration (ICIBI) supports the complaint of a lack of clarity made by Universities UK.13 The sponsor is obliged to notify Immigration Enforcement when there is a change in the situation of the person they are sponsoring, for example where an international student fails to enrol on a course. The ICIBI found that half of Sponsorship Management System (SMS) notifications from sponsors were sifted out as not requiring curtailment; in 2015 nearly 13,000 notifications required no further action (see Table 11). The ICIBI concluded that this indicated that sponsors were unclear what changes in a student’s circumstances they were required to report, and an exaggerated fear of the consequences of not reporting even the most minor change, and that a lack of direct feedback meant this trend was unlikely to change significantly. He recommended that the Government find “a workable solution to providing Tier 4 licensed sponsors with direct feedback on the quality of their SMS notifications, with a view to achieving a significant reduction in the number of unnecessary notifications submitted each year.”14

17.The Government only partially accepted the ICIBI’s recommendation.15 It acknowledged sponsors’ eagerness for feedback but explained that, while a new caseworking system currently being developed might include a feedback mechanism, it could not confirm that it would be viable. The Government also explained that:

UKVI continues to work with the education sector to ensure its understanding of the Sponsorship guidance and its requirements in terms of reporting activity to UKVI. This continued joint working will educate sponsors on reporting only the necessary information required by UKVI.16

The complaint from Universities UK suggests that the Government has much more work to do in the area of joint-working. We discuss the ICIBI’s report further at paragraph 74.

18.Universities UK told us that institutions find the compliance regime around student visa sponsorship to be opaque, and that there is a lack of constructive engagement with the sector and a lack of feedback from the Home Office. This sector generates over £10 billion of export earnings for the UK economy and deserves more respect.

19.We note the Independent Chief Inspector of Borders and Immigration’s conclusion that the absence of direct feedback to sponsors makes it unlikely that the number of unnecessary notifications submitted each year will reduce significantly. We agree with the ICIBI that this will perpetuate the continued waste of time by academic institutions and the Home Office in processing large volumes of worthless notifications. We will add the number of unnecessary notifications to future Committee reports as a key indicator of the performance of UKVI.

English Language Tests

20.A number of organisations including the NUS, Study UK, the Group of Pathways Colleges, the UK Council for International Student Affairs and Universities UK, have raised concerns with us over the Home Office’s response to allegations of fraud at English language test centres. For certain visa applications applicants must demonstrate a level of proficiency in the English language.17 This is achieved through passing a Test of English for International Communication (TOEIC) with a Home Office approved Secure English Language Testing (SELT) provider. Test centres are located in the UK and in countries around the world.

21.In February 2014, the BBC broadcast a Panorama programme which had uncovered a practice of fraudulent activity at two language test centres run by ETS—one of the world’s largest language examiners and a Home Office-approved SELT provider for three years. The Panorama documentary showed examples of people sitting the tests on an applicant’s behalf and instances where the invigilator read out the answers to a multiple choice test. The Home Office subsequently ended its contract with ETS (in April 2014) and launched a criminal investigation into ETS which is ongoing. All applications made in the UK to extend study that were supported by an ETS certificate were placed on hold and all prospective students overseas using an ETS test certificate were subject to interview by Home Office staff.

22.In response to the BBC’s findings, ETS informed the Home Office that, following its own analysis of tests from 96 test centres, it had detected tens of thousands of cases of fraud. It alleged that tests must have been taken by surrogates. In total, ETS determined that there were almost 34,000 invalid test results in which they were certain there was evidence of proxy test taking and a further 22,000 ‘questionable’ test results.18 The Home Office recognised that “where ETS had cancelled a test score because of impersonation and proxy test taking that test score had been obtained by deception.”19 The Home Office determined that “persons in that position who then used that test score had sought to obtain leave by deception.”20 From May 2014 the Home Office began the process of revoking people’s leave to remain and detaining and removing those affected—primarily international students—from the UK. Appeals were almost always only permitted once people had been removed from the UK.

23.To date, more than 28,000 refusal, curtailment and removal decisions have been made in respect of ETS-linked cases and over 4,600 people have been removed from the UK. The Indian Workers’ Association estimate that 70% of those affected are of Indian nationality.21 Around a hundred privately-operated further education colleges have also had their licences suspended or revoked.22 Oliver Robbins, Second Permanent Secretary at the Home Office, told us that:

The ETS case shows widespread, deep and very troublesome deception of the immigration rules. The Home Office is convinced that its response has been both immediate and proportionate to the risks that that has highlighted.23

Critics of the process argue, however, that the response of the Home Office has been overly aggressive, with some students being detained during dawn raids and deported without the opportunity to sort out their belongings; that in many cases it has been based on insufficient evidence of wrongdoing, leading to many innocent people being caught up by the Department’s sweeping action; and that those affected have not been granted the opportunity to review and contest the evidence against them. The veracity of the analysis undertaken by ETS has also been questioned.24 It is extraordinary that the Home Office has carried out no independent investigation itself of the allegations of fraud in relation to English language testing and instead has relied on evidence from ETS, one of its approved providers and a party under criminal investigation. We note the failure of ETS, an organisation that has received millions of pounds in fees from those sitting the tests, to give evidence in court on this matter.

The legal basis

24.Within chapter 50 of the Secretary of State’s Enforcement Instructions and Guidance (“EIG”) there is a discrete section dealing with “Leave to Remain by Deception”, with reference to section 10(1)(b) of the 1999 Act.25 This contains the following passage:

The evidence of deception should be clear and unambiguous in order to initiate action under section 10. Where possible, original documentary evidence, admissions under caution or statements from two or more witnesses should be obtained which substantiate that an offence has been committed before authority is given to initiate action under section 10 [ … ]

The evidence must always prove to a high degree of probability that deception had been used to gain the leave, whether or not an admission of deception is made. The onus—as always in such situations—is on the officer making the assertion to prove his case.”26

Legal challenge

25.On 23 March 2016 the Home Office lost a test case brought by two students whom the Home Office had intended to deport.27 The Upper Immigration Tribunal ruled that it was satisfied—albeit by an “admittedly narrow margin”—that there was sufficient evidence for the Home Office to bring forward an allegation of deception, but that the Home Office had not discharged the legal burden of establishing that either appellant procured his English language certificate by dishonesty. The Tribunal determined that the appellants were “the clear winners”. 28

26.In their judgment on the case the Hon. Justice McCloskey, President of the Upper Tribunal’s Immigration and Asylum Chamber and Deputy Upper Tribunal Judge Saini were particularly critical of the Home Office and identified a series of shortcomings in the testimony of the Department’s representatives:

i) Neither witness has any qualifications or expertise, vocational or otherwise, in the scientific subject matter of these appeals, namely voice recognition technology and techniques.

ii)In making its decisions in individual cases, the Home Office was entirely dependent on the information provided by ETS. At a later stage viz from around June 2014 this dependency extended to what was reported by its delegation which went to the United States.

iii)ETS was the sole arbiter of the information disclosed and assertions made to the delegation. For its part, the delegation—unsurprisingly, given its lack of expertise—and indeed, the entirety of the Secretary of State’s officials and decision makers accepted uncritically everything reported by ETS.

iv)The Home Office has at no time had advice or input from a suitable expert.

v)There was no evidence from any ETS witness—this notwithstanding the elaborate critique of Dr Harrison compiled over one year ago.29

vi)The test results of the 33,000 suspect TOEIC scores, coupled with the information disclosed and assertions made to the Secretary of State’s delegation during a one day meeting, constitute the totality of the material provided by ETS.

vii)Almost remarkably, ETS provided no evidence, directly or indirectly, to this Tribunal. Its refusal to provide the voice recordings of these two Appellants in particular is mildly astonishing.

viii)While the judgment of this Tribunal in Gazi, promulgated in May 2015, raised significant questions about the witness statements of Ms Collings and Mr Millington, these were not addressed, much less answered, in their evidence at the hearing [ … ].

ix)While certain documentary evidence [ … ] might have fortified the Secretary of State’s case, none was produced.

x)Similarly, although requested, none of the voice recording files pertaining to the Appellants was provided for analysis and consideration by Dr Harrison.30

The judges further observed that the Home Office’s failure to provide correspondence referred to in a Home Office witness statement “was not harmonious with elementary good litigation practice and is in breach of every litigant’s duty of candour owed to the court or tribunal”, while some of the evidence the Home Office did provide was “so incomplete and opaque as to be virtually meaningless”.31

27.During the case the Home Office revealed that it had created a third class of results which comprised students whose results were not classed by ETS as invalid or questionable but that were considered illegitimate by the Home Office for the sole reason that they had taken their tests at centres where numerous numbers of test cases had been diagnosed as fraudulent. Persons belonging to this category were usually invited to undergo a fresh test. The Home Office witness was unable to define ‘numerous’ or elaborate on the term ‘usually’. 32

28.We asked the Minister for Immigration how many of the 22,000 people with ‘questionable’ test results had been allowed to re-sit their tests or be interviewed by the Home Office. In evidence to us the Home Office Second Permanent Secretary, Mr Oliver Robbins, told us all persons in that category “have been offered a process to either re-take the test and sit an interview with the Home Office or withdraw themselves from it”.33 It is strange therefore that the Minister had previously informed us that the Home Office “do not hold this information in a format that allows us to answer this question.”34

29.It is wholly unsatisfactory that the Home Office initially informed us that it did not hold information on how many people with ‘questionable’ English language test results had been able to re-sit the test or be interviewed by the Home Office, when it was able to provide this information a few weeks later. It is also unacceptable that the Home Office was unable to tell us how many of the tests related to people who were not applying under the Tier 4 student visa process, how many cases relating to the ETS debacle were currently before a Tribunal, or how many tests ETS found to be valid. We find it deeply concerning that the Home Office was unable to provide this information given the gravity of this matter and the number of people affected. We are also not satisfied by the definitions of tests declared ‘valid’, ‘not-valid’ or ‘questionable’.

30.A key area explored at the Tribunal was the reliability of the ETS data, particularly with regard to error rates and false positives. Evidence from Dr Harrison, the expert witness at the trial, suggested that these risks were substantially underplayed by both the Home Office and ETS. Dr Harrison testified that:

a)While the ETS automated voice sample analysis is in the abstract reasonable, the available evidence fails to demonstrate a satisfactory level of reliability.

b)The significant shortcomings in the technical information available mean that one cannot have confidence in the reliability and accuracy of either the automated testing results or the results, modified or otherwise, flowing from the later human intervention exercise.35

31.The evidence provided by Dr Harrison was not disputed by the Home Office, either during the trial nor in the year preceding the trial when it was first made available. The Home Office maintains that it “is satisfied with the process which ETS employed to identify those who had sought to benefit from cheating or had used proxy test takers and has taken fair and decisive action.”36 Mr Robbins told us “the validation process we went through, including with expertise back in the UK, including the two human-factor checks after the software check, we are convinced are rigorous enough. That has been endorsed by a number of judgments since.”37

32.The Home Office dispute the decision of the Tribunal and have sought leave to appeal it. On 12 April we attempted to question Mr Robbins on this subject. Despite being the lead civil servant on immigration issues we found Mr Robbins to be insufficiently prepared for the meeting and he was unable to provide certain basic information; in places his answers contradicted replies previously given by the Minister.

Impact and response

33.The UK Council for International Student Affairs consider the Home Office’s response to the discovery of fraudulent English language tests to be “one of the largest actions ever taken against students in the UK,” while Higher Education UK and Europe told us that they see the Home Office’s actions as part of a wider trend to reduce the number of international students studying in this country.38

34.The recent judgment of the Upper Tribunal on the operation of the English language testing system raises serious questions about the conduct of the Home Office. The Home Office appears to have accepted at face value, and continues to accept, claims of widespread fraud from ETS—a company that was part of the problem, had already been discredited and is subject to criminal investigation. This is deeply troubling, particularly given that an expert witness has raised serious questions over the reliability and accuracy of ETS’s analysis and first did so well over a year ago. Despite this, arrests and removals have continued. In any circumstances the lack of independent assessment would be difficult to comprehend but when the consequences of such a decision include thousands of people suffering the trauma of detention and removal from the UK, such actions lead us to seriously question the judgement of the Home Office.

35.We have received evidence that people were only told why their visas were being revoked after extensive requests for information, and that those affected did not have the opportunity to review and contest evidence presented against them. It does not seem to us fair that the UK is removing people from the country without, as a minimum, making them aware of the evidence against them. It is clear that, if the problem of fraud in English language testing is not handled properly, the UK risks causing extensive damage to its reputation as a leading destination for international study, not to mention the emotional and financial cost to the individuals affected.

36.Those who have received ‘section 10 notices’ must leave the UK before they can appeal the decision. Only students with the necessary financial means will be able to appeal and at the moment they must do so without access to the audio files that allegedly incriminate them. The Upper Tribunal judgment makes the following observation about out-of-country appeals:

We are conscious that some future appeals may be of the ‘out of country’ species. It is our understanding that neither the First Tier Tribunal nor this tribunal has experience of an out of country appeal of this kind, whether through the medium of video link or Skype or otherwise. The question of whether mechanisms of this kind are satisfactory and, in particular, the legal question of whether they provide an appellant with a fair hearing will depend upon the particular context and circumstances of the individual case. This, predictably is an issue which may require future judicial determination.39

37.We do not condone fraud and it is right that swift and proportionate action is taken when fraud is uncovered. However, given the severity of the consequences, the Home Office must only act when it is certain that it can meet the burden of proof. The recent case in which two students appealed successfully against the Secretary of State’s decision for removal raises serious questions about the way in which the Home Office has responded to the allegations of fraud within English language test centres. This decision appears to have been a knee-jerk reaction to the Panorama documentary. The Home Office’s action is already having wider ramifications.

38.We want to be satisfied that the Home Office’s actions are proportionate and just. The Committee has decided, given the number of outstanding issues relating to English language testing, to undertake a full inquiry into this matter. These issues include procurement and licensing, investigations, inspections and how much money has been spent. As a starting point to this inquiry the Home Office must, in response to this Report, set out the process for out-of-country appeals; the steps which will be taken to ensure a fair hearing; and whether this will include appellants being given access to the evidence against them. We will also be insisting that ETS give evidence to the Committee, something they have failed to do in court.


2 Office for National Statistics, Migration Statistics Quarterly Report, February 2016. Estimates of Non-EU long-term immigration based on the International Passenger Survey differ from Home Office figures relating to the number of visa applications. Potential reasons for this difference include: differences in coverage (the Home Office figures include both long-term and short-term migrants and their dependants), sampling variation in the IPS, and timing differences between when visas are granted and when an individual travels.

3 UK Visas and Immigration, Temporary and permanent migration transparency data, February 2016, Table InC_3 and InC_4

4 UK Visas and Immigration, International operations transparency data, February 2016, Table Visa_3

7 UK Visas and Immigration, Temporary and permanent migration transparency data, February 2016, Table InC_05

8 Using the most recent figures available from UK Visas and Immigration, Temporary and permanent migration transparency data, February 2016, Table InC_02

9 UK Visas and Immigration, Temporary and permanent migration transparency data, February 2016, Table InC_07

10 UK Visas and Immigration, Sponsorship transparency data, February 2016, Table SP_05

12 Written evidence submitted by Universities UK, ETS0006

13 Independent Chief Inspector of Borders and Inspection, A short notice inspection of the Tier 4 curtailment process: July – September 2015, 23 March 2016

14 Independent Chief Inspector of Borders and Inspection, A short notice inspection of the Tier 4 curtailment process: July – September 2015, 23 March 2016

17 Visas include Tier 1 (Entrepreneur); Tier 1 (Graduate Entrepreneur), Tier 2 (General); Tier 2 (Minister of Religion); Tier 2 (Sportsperson), Tier 4 (General), Representative of an overseas business, Partner, Parent, Settlement, Citizenship

18 UK Visas and Immigration, Temporary and permanent migration transparency data, February 2016, Tables SELT_01

22 UK Visas and Immigration, Temporary and permanent migration transparency data, February 2016, Tables SELT_01 and SELT_02

23 Oral evidence taken by the Home Affairs Committee on 12 April 2016, The work of the Home Office, Q 131

24 Written evidence submitted by the NUS, ETS0003, see also discussion of expert witness evidence in Upper Tribunal Immigration and Asylum Chamber, SM and Qadir v Secretary of State for the Home Department, 27 May 2015

25 UK Visas and Immigration, Enforcement Instructions and Guidance, Chapter 50

27 The students had been detained on returning on the UK and were therefore able to appeal from within the UK

28 Upper Tribunal Immigration and Asylum Chamber, unreported judgment, SM and Qadir v Secretary of State for the Home Department, 7 March 2016

29 Dr Harrison was an expert witness engaged by the appellents.

30 Upper Tribunal Immigration and Asylum Chamber, unreported judgment, SM and Qadir v Secretary of State for the Home Department, 7 March 2016

31 Upper Tribunal Immigration and Asylum Chamber, unreported judgment, SM and Qadir v Secretary of State for the Home Department, 7 March 2016, para 15 and para 66

32 Upper Tribunal Immigration and Asylum Chamber, unreported judgment, SM and Qadir v Secretary of State for the Home Department, 7 March 2016

33 Oral evidence taken by the Home Affairs Committee on 12 April 2016, The work of the Home Office, Q 120

34 Letter from the Minister for Immigration to the Chair of the Committee, 24 March 2016

35 Upper Tribunal Immigration and Asylum Chamber unreported judgment, SM and Qadir v Secretary of State for the Home Department, 7 March 2016, para 34

36 Letter from the Minister for Immigration to the Chair of the Committee, 24 March 2016

37 Oral evidence taken by the Home Affairs Committee on 12 April 2016, The work of the Home Office, Q127

38 Written evidence submitted by the UK Council for International Student Affairs, ETS0001; written evidence submitted by Higher Education UK and Europe ETS0002

39 Upper Tribunal Immigration and Asylum Chamber unreported judgment, SM and Qadir v Secretary of State for the Home Department, 7 March 2016, para 104




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27 May 2016