The Home Office has issued a new Sponsor Guidance (version 10/13) for Tier 4 sponsors. The guidance includes measures that were announced in the recent Statement of Changes in the Immigration Rules plus a raft of other changes.
Where we refer to the Sponsor Guidance in this article, we are referring to version 10/13. The paragraph numbers we refer to may change in subsequent versions of the Sponsor Guidance issued by the Home Office.
Immigration checks on students
A new requirement has been brought into affect requiring sponsors to complete checks on individuals who are already in the UK prior to sponsoring them.
Contained in paragraph 15, this new requirement places, for the first time, a clear obligation on sponsors to carry out immigration status checks on those whom they wish to sponsor.
The rules on revoking a licence (paragraph 610) have also been changed to give the Home Office a specific power to take enforcement action against a sponsor if they find that they have any students studying at their institution who do not have valid leave to remain. Up until now, the Home Office has had to accuse sponsors of breaching the general duty to help to prevent abuse of the immigration system.
In practice these changes mean that Tier 4 sponsors must carry out checks on all students to ensure that they are allowed to study in the UK. Despite requests for clarity, the Home Office has not produced a guide to assist sponsors in making these checks. A guide does exist to assist employers in checking the status of their employees and this can be found here.
The rules on study are, however, different to the rules on employment. We therefore recommend that sponsors do not take action in relation to an individual who cannot provide clear evidence of their status until the circumstances of the individual’s case are fully understood.
Sponsors should exercise care
We have often been asked on behalf of Tier 2 sponsors to review whether or not an employee has the right to be in the UK where their documentation is unclear. We have found, on numerous occasions, that individuals do have permission to remain (and to work or study) under the Immigration Rules, European legislation, the Human Rights Act or the 1951 United Nations Convention Relating to the Status of Refugees. Many individuals have the legal right to be in the UK but may be unable to present clear and unequivocal evidence immediately due to a number of factors. Sponsors have also, on occasion, been given incorrect information by the Home Office about an individual’s status when they have checked.
Under the newly amended paragraph 611 of the Sponsor Guidance, a number of factors will be taken into account by the Home Office before enforcement action is taken against a sponsor. These factors include the sponsor’s efforts to address any issues, the number of breaches that have occurred and who was responsible for the breaches. In addition, sponsors will have a contractual obligation towards students and must provide them with the opportunity and time to demonstrate their legal status.
Complying with legislation on equality and acting in the best interests of children
The Home Office, and those who teach children, including Independent Schools, must be especially careful to ensure that they act in the best interests of the child when implementing or enforcing these measures. The obligations in this regard fall under section 11 of the Children Act 2004 and section 55 of the Borders, Citizenship and Immigration Act 2009. In addition, checks on all students and prospective students must comply with the Equality Act 2010.
We have worked with a number of universities, private colleges and independent schools to ensure that their systems and procedures are lawful, transparent and fair. If you need assistance in checking the status of students, please contact us.
It is important to note that the new requirement to carry out immigration checks on students only relates to education providers that hold a Sponsor Licence. Education providers, and notably maintained schools, that do not hold a Sponsor Licence are not required to check or take action in relation to the immigration status of students and should not do so unless they can demonstrate that they have a legally enforceable right to do so.
Changes to the definition of branches, campuses and partner institutions
In the new guidance, reference to joint venture arrangements for branch purposes has been removed. However, we understand that this is a drafting error and that the next release will correct this.
The rules in relation to campus arrangements have been clarified and it is now clear that different sites owned by an education provider do not need to be registered separately as branches.
It is still advisable, where a university is taking over the site of a private provider, for instance, to obtain Home Office approval in advance.
Tier 4 sponsors can now only apply to the Home Office for another education provider to be named on the sponsor licence as a partner institution in the following circumstances only:
a. Where there is a contractual agreement between the education providers to work in partnership to deliver education to students. In this case:
- both partners must hold their own separate HTS sponsor licence and have educational oversight from an appropriate body; and
- both partners can offer any course that meets Tier 4 requirements.
b. Where the partner institution does not hold a Tier 4 sponsor licence and provides only pre-sessional courses on behalf of the Tier 4 sponsor. In this case:
- the pre-sessional courses must meet the definition at paragraph 434, last no longer than 3 months, and end no more than 1 month before the main course of study; and
- students must be progressing to a main degree course at the Tier 4 sponsor for which they have an unconditional offer; and
- the Tier 4 sponsor must assign the single CAS for the pre-sessional course and the main course and undertake sponsorship duties for the student; and
- the partner institution may not offer any other type of course on behalf of the Tier 4 sponsor.
Changes to the definition pre-sessional courses
The definition of a pre-sessional course has been changed and is now:
“a course that prepares a student for, and directly precedes, their intended full-time course of study in the UK and enables them to acquire the ancillary skills or knowledge necessary to adjust to study in the UK. This will usually be supplementary English Language training or some instruction in the British education system. Courses which are designed to give a student fundamental training in the subject area of the main course as a stepping stone to it – e.g. a foundation degree – or courses which form an integral part of the main course of study or replace part of it – but which are administered separately – are not considered to be pre-sessional courses”.
This new definition may affect a number of education providers that are already offering pre-sessional courses in line with the previous definition.
As with the changes to the branch sponsorship arrangements, we have been advising affected sponsors in the run up to this change to communicate with the Home Office and agree action to be taken and the time-frame for it given the potentially significant consequences of a sudden change in policy. The legal basis for this change is questionable and if you require legal advice on the options available, please contact us.
The rules on additional/supplementary study continue to cause confusion.
The new Tier 4 Policy Guidance for students states at paragraph 332:
“All other Tier 4 students wishing to do a course before their main course must make a separate Tier 4 application for each course. Both courses must satisfy the full criteria of Tier 4, including the English language testing requirements (where they apply) and the minimum course level”.
The previous policy guidance stated:
“All other Tier 4 students wishing to do a pre-sessional course before their main course must make a separate Tier 4 application for each course. Both courses must satisfy the full criteria of Tier 4, including the English language testing requirements (where they apply) and the minimum course level.”
The requirements for supplementary study, however, continue to state that students can undertake extra study providing it does not hinder their progress on the main course and it is unclear exactly what type of study paragraph 322 of the policy guidance (for students) is referring to.
The Home Office has also recently being advising some sponsors that they cannot enroll students onto a new course under the supplementary study rule during the period after the student’s main course has finished, but before their leave expires.
The change in paragraph 332 of the student policy guidance, referred to above, could also be interpreted to mean that from 1 October 2013, study taken before the main course begins may also not be regarded by the Home Office as ‘supplementary study’.
The guidance for sponsors remains unclear and this leaves sponsors and students in an extremely unsatisfactory position of not knowing when the supplementary study rules may be applied and when they may not be.
We consider that, from a purely legal perspective, there is nothing in the Immigration Rules or the Sponsor Guidance that prevents supplementary study from taking place before, during or after the main course of study, providing it does not interfere with the main course of study and providing the student has complied and remains compliant with their conditions of leave.
However, the legal position will be of little comfort to sponsors or students in the event that the Home Office takes a different approach and initiates enforcement action (even if such action would be held unlawful by the courts). Given the Home Office’s presently unclear position and the new formal requirement on sponsors to check that a student has valid permission to study before enrolling them, we would advise sponsors to adopt a cautious approach before enrolling students onto supplementary courses in advance of their main course of study and to lobby the Home Office for clearer rules.
The new Sponsor Guidance also refers to numerous other changes and these include:
- acceptable sponsors for postgraduate dentists on a foundation programme
- relevant processes and inspection outcomes from QAA
- the premium customer service
- the impact on HTS status of refusals under the Genuine Student Rule
- when students can work during and after study
- the rules on mergers, takeovers and de-mergers.
Nichola Carter, Principal at Carter Thomas, and Peter Skillen, Immigration Compliance Manager at INTO University Partnerships, will be presenting a half-day training session on these and other developments for Tier 4 sponsors on behalf of Study UK on 12 November 2013. Further information about this course will appear on Study UK’s website shortly.