Update | Education: international students and cultural differences

Over the last 12 months we have seen a significant rise in instructions from international students accessing degree courses in England and Wales. These students have approached us because they have been accused of academic misconduct breaches such as plagiarism, cheating and collusion.

The Academic Misconduct Procedures for most universities provides for a process whereby an investigation takes place and the student is either punished at that stage or appears before a panel to defend the allegation. Generally speaking, public law rights are imported into the procedures - so the student is entitled to know the full case against him/her, have a fair opportunity to respond to the allegations and for an independent, impartial tribunal established by law to hear the case and to determine penalty (if any).

One of the primary issues faced by international students, particularly those that are undertaking a postgraduate course, is the training they have received in their home countries about respecting academic standards and ensuring that rules are complied with. For example, students from some countries will cheat in examinations because in the home country although cheating is wrong, it is not penalised in the way it is in universities in England and Wales. A recent case we advised on related to a student who wore a Bluetooth device during an examination. A friend was sitting on the other end of the telephone providing answers to the student as she wrote the exam. The Bluetooth device would never have been discovered (as the student had covered it with her hair) but for the fact that the invigilator could hear a voice coming from the student's desk. She was then accused of cheating and had to succumb to the academic misconduct procedures of the university. The arguments advanced were the cultural differences in education in the home country versus the education system in England. In the home country, the ultimate penalty for such cheating may result in a reduction of marks or a retake. In the English university the only penalty available to the panel in the event that the student is found guilty of the offence is withdrawal.

Invoking Article 8

The cultural arguments advanced by international students are valid in law. This is because of the right to private and family life is evoked by Article 8 of European Convention on Human Rights. The cultural differences will sometimes put students in difficulties when applying mitigating circumstances procedures. Most, if not all, universities have a mitigating or extenuating circumstance procedure. These procedures allow for a student to convey a circumstance to the university that may have or may affect their performance in a piece of coursework or examination. The circumstances must be conveyed to the university either before the examination or submission date for coursework, or almost immediately after taking the examination. The Examination Board will then consider the mitigating circumstances when determining a mark on the piece of work and will also make decisions about whether a student may retake the examination or resubmit the piece of coursework - as a first attempt. This is significant because most second attempts at coursework or examinations will be capped at the pass mark no matter how well the student does.

International students often fail to understand the impact of the failure to submit mitigating circumstances under the proper procedures. This is because in the home country, concerns about family illness, bereavement, personal (sometimes embarrassing) illnesses are not appropriate reasons to miss a deadline or fail an examination. The international student will, therefore, not submit mitigating circumstances and will then be withdrawn from the course for academic failure. This results in an appeal through the university's internal appeal procedures. It is often the case that universities will reject the appeal as the student has no good reason as to why he or she did not tell the university of the issue prior to or at the time of the coursework submission deadline or examination. This is where cultural arguments '¨are advanced in a bid to demonstrate to the university that the cultural differences are very relevant to the student's approach to the educational establishment. Some universities are more open than others in accepting these cultural differences but from a legal perspective it is potentially unlawful not to take the cultural differences into account when determining the student's reasons for failure to submit mitigation for academic failure.

Challenging judgment

The concept of academic judgment is a difficult one for international students to appreciate and accept. In some home countries, a challenge to the marking of coursework or exams is valid and entertained. However, in English law, academic judgment is not challengeable (Clark v Lincolnshire & Humberside [2000] EWCA Civ 129). The courts, quite rightly, are of the view that the academic ability of a student can only be judged by the academic specialised in the subject and it is the academic's judgment of the student's ability that '¨is relevant. We have seen internal complaints '¨and appeals challenges solely on academic '¨judgment which results in prolonged and

unnecessary arguments between the student '¨and the university.

There is a growing concern, also, of international students arriving in the country, having been sold a course by an agent in their home country of an English-based college or university. The student is actively encouraged to pay either the full fees or a substantial deposit before arriving in the UK to enable the college to issue the relevant CAS letter for the purposes of the student visa application. On arrival in the UK, the student finds that either the college is not offering the course that he or she enrolled on, or that they have been enrolled on a subject that they do not wish to study at all. When seeking a refund of the fees on the basis of a catagoric breach of contract, the college will often refuse to refund, or indeed drag matters out to such an extent that it leaves the student in an untenable position. Many of these international students' families have been through some trouble to obtain the fees and the living expenses to enable the student to come to England to study. Because of the very significant cultural differences, some of these students find it almost impossible to return home when they discover that the college has misled them, because of the shame that comes with this type of failure. Financially it is difficult for them to seek assistance through lawyers (particularly in light of the very significant cuts in legal aid in recent times), and so they are left in limbo. The student will attempt to fight it out with the college in a bid to obtain the refund but often the college will allow matters to become unnecessarily prolonged in the hope that the student eventually gives up. When approached by students who have faced rogue colleges, complexities arise in seeking the refund. This is because sometimes agency law can become relevant as it is the agent in the home country that originally sold the course to the student. No paperwork exists - or very little paperwork exists and it then becomes difficult to prove exactly what terms were in force at the time the student entered into the legal relationship with the college.

Further, contract law applies but some colleges have terribly unfair terms in their terms and conditions that would amount to a challenge under the Unfair Contract Terms Act 1977. Many of these colleges are set up as companies and hold themselves out as private colleges therefore public law remedies are limited, which means that the student is faced with a full on costly challenge in negligence or breach of contract.

Away from home

Another trend that appears to be developing rapidly is the emotional challenges that international students face. Quite often they are faced with limits on funding, feeling lonely without access to friends and family and suffering from some level of culture shock as they are in a new country for the first time in their lives.

These students sometimes face issues of depression, anxiety and stress. Depending on the severity of the condition, the student may become disabled in law. If that is the case then the university does have duties under the Equality Act 2010 to direct the student for support and to make allowances under the extenuating circumstances procedures. Failure to do so would amount to an act of disability discrimination. SJ