In our recent update for Tier 4 sponsors on approved courses of study, we looked at the types of courses Tier 4 providers are permitted to offer to international students.
Here we continue to explore growth initiatives, focusing on the ways in which education providers are permitted by the Home Office to work together to deliver courses to international students. Where we refer to the Sponsor Guidance in this article, we are referring to version 10/13.
Can students we sponsor be taught at another institution?
We are often asked to provide legal advice on this question.
The Home Office’s current position is fairly clear and is outlined in paragraph 607 (h) of the Sponsor Guidance. This states:
“607. We will revoke your licence immediately for any of the following reasons:
h. The study element of any course you offer to sponsored students is not taken on your premises or at a partner institution named on your licence and the sponsored student’s CAS”.
It is therefore essential that students you sponsor are not taught their main course at another education provider’s premises unless this arrangement complies with the Tier 4 sponsorship rules.
In its guidance for sponsors issued on 1 October 2013, the Home Office set out that international students whom you sponsor may only be taught at another education provider’s premises in the following circumstances:
- they are taking supplementary study, as defined in paragraphs 495 – 497 of the current version of the Sponsor Guidance, in which case that study can take place anywhere, or
- they are being taught by a provider that is named as a partner institution on your sponsor licence and on the CAS issued to the student, or
- they are being taught by a provider that is recognised as a ‘branch’ on your sponsor licence, or
- they are being taught at one of your campuses.
Where an education provider is named as a ‘partner institution’ on a Tier 4 sponsor’s licence, the sponsor can issue CAS to students who will study at the partner institution’s site, thereby ensuring compliance with paragraph 607.
Paragraphs 127 – 129 of the Sponsor Guidance set out the rules relating to partner institutions. Currently, as a Tier 4 sponsor you may name another education provider on your licence as a partner institution in only two situations:
1) There is a contractual agreement between two separate Tier 4 sponsors to work in partnership to deliver education to students, both parties hold their own HTS licences and each meets the educational oversight requirements. CAS can be offered in relation to any course that meets the Tier 4 requirements; or
2) The education provider that will be the partner institution does not hold a Tier 4 sponsor licence and will provide only pre-sessional courses on behalf of the Tier 4 sponsor. In this case:
- the pre-sessional course (or courses) must meet the Home Office’s definition as outlined at paragraph 434 (I.e it must prepare the student for the main course of study and directly precede it, but it must not provide fundamental training to the student or form an integral or replacement part of the main course);
- it must last no longer than 3 months and end no more than 1 month before the main course of study;
- the student must be progressing to a main degree course at the Tier 4 sponsor for which they have an unconditional offer;
- the Tier 4 sponsor must assign a single CAS for both the pre-sessional course and the main course and undertake sponsorship duties throughout; and
- the partner institution must not offer any other type of course on behalf of the Tier 4 sponsor.
Many of our clients are concerned that the rules on pre-sessional courses were fundamentally changed on 1 October 2013 without notice or consultation, resulting in potentially significant commercial and contractual difficulties. If you require specific advice on this, please contact us.
Note on Independent Schools: The Home Office has acknowledged that the 1 October changes, outlined above, do not cater for Independent Schools. We expect them to rectify this in the next guidance document.
As a Tier 4 sponsor you may also be able to work in partnership with another education provider to offer courses to international students under the ‘branch’ arrangements. These are set out in paragraphs 113 – 122 of the Sponsor Guidance.
These arrangements require a much closer relationship between you and the other education provider – there must be common ownership or control.
In its guidance for sponsors issued on 1 October 2013, the Home Office set out that you can show common ownership or control in the following ways:
- one entity controls the composition of the other entity’s board; or
- one entity is in a position to cast, or control the casting of, more than half the maximum number of votes that might be cast at a general meeting of the other entity; or
- one entity holds more than half the issued share capital of the other entity (excluding any part of that issued share capital that carries no right to participate in a distribution of either profits or capital beyond a specified amount); or
- both entities have a common parent entity that itself, or through other entities, meets one of three requirements above in relation to both entities.
Note on joint venture arrangements: the Home Office previously permitted joint venture arrangements to meet the requirements for common ownership or control. However, this was removed from the guidance issued on 1 October 2013.
We understand that the provision was removed in error and are liaising with the Home Office on behalf of a number of our clients on this issue. We will provide an update on our website as soon as we have further information and if you require advice, please contact us.
If you are thinking about working with another education provider to deliver education to international students in the UK, there are a number of potential options. However, it is extremely important that you ensure that there is a strong compliance framework in place to capture information relating to high numbers of students across various locations.
The main sponsor will always be held responsible by the Home Office for ensuring that the sponsor duties are complied with, regardless of the contractual arrangements between the parties. In addition, the Home Office frequently changes the rules on sponsorship and therefore contracts between the parties should be drafted carefully to cover the possibility of a significant change in policy which could require the contractual arrangement to be changed or terminated.
If, as a sponsor, you are looking at other ways of working with other education providers or businesses in relation to international students, for instance, sharing teaching staff or premises, offering parts of courses or work placements, you will also need to be compliant with the various rules set out by the Home Office.
Home Office checks
As we highlighted in our update on courses, the Home Office is sending its Higher Education Assurance Team (“HEAT”) out to visit higher education sponsors. The arrangements that a higher education sponsor has with other providers is also one of the key areas that is checked.
We advise education providers on all aspects of Tier 4 and we have particular expertise and experience in the development and implementation of growth initiatives. The UK government launched a new international student initiative in summer aimed at increasing the number of genuine international students coming to the UK. Providing the compliance profiles of education providers seeking to work together are strong from a Home Office perspective, now is an extremely good time to be seeking new opportunities to work collaboratively. If you would like any advice or assistance, please contact us.
Please note that the rules relating to Tier 4 sponsors are changed frequently by the Home Office.