Gulbenkian Andonian solicitors in this further immigration article, discuss the plight of Innocent foreign non-EU students caught up in a web of injustice, denied settlement in the UK and some removed to their country of origin on the allegation of fraud and conduct to gain an immigration advantage – Paragraph 322(5) of the immigration rules HC 395 as amended referred.
Students who are considered as having intentionally cheated many years ago the passing of their TOEIC English language test, (now scrapped because of the scandal it created), or been a party to the non-disclosure of their tax affairs by producing fraudulent figures to the HMRC and Home Office, risk curtailment of the visas, denied settlement and removal from the UK on the grounds of bad character and conduct.
This article deals with (a), those who are alleged to have passed by deception their English language test called the TOEIC test, and (b) who have not come clean with their tax affairs, both for the purpose of gaining an immigration advantage, mostly settlement in the UK and some for the purpose of continuing with their studies or their leave to remain under the points-based system leading to settlement.
Alleged cheating in the English language TOEIC test
Approximately 34,000 foreign students have had their visas cancelled or curtailed, settlement denied, and some have been removed to their country of origin on the basis of alleged dishonesty some five or more years ago, by cheating at an English language test, called TOEIC (now scrapped), which they had to pass in order to either further their studies in the UK or obtain a change of status as, for example, a Tier 1 highly skilled migrant or other immigration status leading to settlement.
Investigations by the Home office have led to students being arrested and removed to detention centres before enforced removals from the UK. This drive to find and remove all potential cheats began during our Prime Minister’s tenure as Home Secretary when she promised to create a hostile environment for illegal migrants, to make life as difficult as possible for them so that they would leave the UK or be removed or deported.
This is not to say however that fraud does not take place. Undercover filming in a BBC Panorama documentary broadcast in 2014 revealed clear evidence of fraud in at least two test centres responsible for administering the test to students who were required to take it as part of the Visa renewal process.
In one, the invigilator was seen reading out the answers to a multiple-choice test. In another, fake candidates arrived to take the test by proxy on behalf of students, with the invigilator fully aware of the situation. There is no doubt that there was a well-organised cheating system in the centres earmarked by the BBC where filming took place. What is less clear is how many people were involved and how many innocent students were caught up in this scam.
There is no doubt that there are many bona fides students who have taken the tests genuinely and have passed under their own steam but who have nevertheless been tainted by illegality because of the notoriety of the particular test centre, and who have protested their innocence. Many have been under pressure and have left the UK without the opportunity to prove their innocence having been told that they were liable to arrest if they did not leave. In that regard pressure has been brought upon them by enforcement officers visiting their homes, attempting to round up all those accused of cheating.
Many of those who believed they had wrongly been targeted asked for an opportunity to take a new English test pointing out that they had no need to cheat as they spoke English fluently. Some were studying for degrees in English literature.
Those who remained and indeed still remain in the UK have had their visas curtailed, and have been unable to work, open a bank account or rent property because of their precarious immigration status. Many have had to rely on families who helped pay their fees for the unfinished courses in the UK and are now funding their attempt to have their visas reinstated by paying for lawyers to appeal against decisions, refusing permanent residence (settlement) for example on the allegation of past years of dishonesty.
The American company that administered the test, educational testing service (ETS) has informed the Home Office that it had conducted a voice analysis of recordings of all 58,458 tests taken in 96 test centres in the UK between 2011 and 2014 and concluded that 33,725 people cheated and a further 22,694 had questionable results. Only about 2000 were found not to have cheated. Yet when students have asked for a copy of their voice recording as evidence that they took the test themselves, or is evidence that they were not of the test centre to take the test, ETS has refused on many occasions to provide a copy of the voice recording, and this is surprising, because if the allegation is that the candidate cheated, the burden of proof is on the Secretary of State to prove it. ETS has on many occasions dodged the issue, advising the candidate to liaise with the Home Office. At the end of the day, nothing is resolved. The situation is very unsatisfactory, but luckily the immigration tribunal and the higher courts are aware of the difficulties and take a broad-brush approach considering all the evidence in the round and holistically. This involves asking numerous questions of the candidate who before them would be the appellant, with respect to the test centre, how for example they attended a test centre, who introduced them to the test centre, why they could not find a centre nearer to their home, how the deposit was paid, with a receipt was given, what happened on the day of the test, where was the applicant requested to sit, how he/ she got into the computer system by logging in, what was heard before the test commenced, how long the test took to complete, and the nature of the questions asked.
Panorama established that a few dozen people had cheated but the way the government responded has blighted the lives of thousands who did not cheat. They felt mortified of being accused of cheating.
Paragraph 322(5) of the immigration rules ( which is a discretionary refusal), as amended provides: – grounds on which leave to remain and variation of leave to enter or remain in the United Kingdom should normally be refused: – (5) the undesirability of permitting the person concerned to remain in the United Kingdom in the light of his conduct (including convictions which do not fall within paragraph 322 (I C), character or association or the fact that he represents a threat to national security. This section is a general ground of refusal within the immigration rules, of permitting the person concerned to remain in the UK in the light of conduct.
When an application is made based on 10 years lawful residents, the past history of the applicant be it in relation to issues concerning the previous English language TOEIC test or non-disclosure of tax affairs for which see below, the suitability requirements of the immigration rules as regards indefinite leave to remain, S – LTR 1.6 is taken also into account, and that states as follows:- the presence of the applicant in the UK is not conducive to the public good because their conduct ( including convictions which do not fall within paragraph S- LTR.1.3 to 1.5), character, association or other reasons make it undesirable to allow them to remain in the UK. This paragraph is very similar to the general grounds for refusal under paragraph 322(5) above.
The Secretary of State is deemed to have satisfied the legal burden of proof on the civil balance of probabilities in the generic affidavit evidence that is provided in appeals dealing with such refusals, but the burden then shifts on the appellant to provide an innocent explanation and thereafter the Secretary of State has to respond to it. Therefore, the ultimate burden is on the Secretary of State to prove dishonesty. This is the case also when one is dealing with an allegation of non-disclosure of the applicant’s tax affairs to HMRC and or to the Home Office to which the article will now turn. discuss
Nondisclosure of tax affairs
There are a number of safeguards which the courts have realised have to be made in order to prevent as far as possible injustice taking place. In that regard, in the matter of Shen ( paper appeals; proving dishonesty), [ 2014] UKUT 00236 ( IAC) the Upper Tribunal held:- ( i) in terms of the approach that the tribunal should adopt towards decisions of the Secretary of State in which dishonesty or deception is alleged against an applicant for leave to remain, the starting point should be, as the Court of Appeal in Adedoyin ( formerly AA (Nigeria) v SSHD EWCA Civ 773 have made clear, that pursuant to paragraph 322 of the immigration rules the reference to false means dishonestly false.
(ii) where an application form is false in a material way, this may be relied on by the Secretary of State as prima facie evidence establishing dishonesty. The inference of deliberate deception can be strengthened by other facts, e.g. if a criminal conviction not disclosed in an application, occurred shortly before completion of the application form. Here, the conviction must have been high in the applicant’s mind and any explanation based on oversight would carry little weight. But it is always open to an applicant to proffer an innocent explanation and if that explanation meets a basic level of plausibility, the burden switches back to the Secretary of State to answer that evidence. At the end of the day, the Secretary of State bears the burden of proving dishonesty.
There are also two Scottish cases namely OJI v SSHD [ 2018] CSOH 127 and Dadzie v SSHD  CSOH 128 both of which were heard by Lord Burns on 27 December 2018, his Lordship held at paragraph 30 of Oji: – in my opinion the mere fact that the different amounts were declared to HMRC and to the UK VI did not constitute a sufficient basis for the conclusion that the petitioner had acted dishonestly and that it was accordingly undesirable to grant him permission to remain. The letter does not contain any indication that the respondent addressed her mind to the question of whether the discrepancy indicated inadvertence on the one hand or intentional wrongdoing on the other. No reason is given for the conclusion that there was a deliberate understatement or overstatement of income in one or another of the declarations. In the circumstances of the present case, one would have expected the respondent to explain why an inference of dishonesty was to be drawn despite not having afforded the petitioner an opportunity to explain how it came about that he declared such small amounts of self-employed income by comparison with the amounts declared to UK VI and subsequently HMRC when the amendments were submitted.
From the above case law, it is apparent that the courts are doing what they can to prevent the government from reaching the wrong decision. Whilst there will always be intentional cheats who will try to obtain an immigration advantage by diverse means of fraudulent conduct, it is reassuring to know that the courts are there to deal with these situations where innocent students may be caught up in a web of injustice.
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Dr Bernard Andonian – the Co-Founder of Gulbenkian Andonian Solicitors, is an experienced Immigration Solicitor, former Judge, and recipient of a PhD in Law from the University of West London. He has over four decades of experience practising UK Immigration, Human Rights and Civil Litigation Law. He has served on the Law Society Immigration Law Panel, achieved numerous groundbreaking decisions in higher courts and is featured in the Legal 500’s Hall of Fame.