The Home Office has always maintained that Tier 4 sponsors have a duty to ensure that all students studying with them have valid leave to remain in the UK. However, the legal basis was fairly vague up until recently.
In the Tier 4 Sponsor Guidance that was issued on 1 October 2013, new clearer requirements on this matter were set out in paragraphs 15, 519 and 610(t) of that version of the guidance.
It is important to note that schools and other education providers that do not hold a Tier 4 sponsor licence are not required to conduct checks on the immigration status of their students. Since there is no legal basis generally for schools to carry out checks, they should not do so unless they are an independent school and they hold a Tier 4 sponsor licence.
We raised the fact that the new requirements were causing concern amongst many of our independent school clients at the Home Office’s Operational Forum meeting we were invited to attend in early October. This prompted an invitation for us and representatives from the Independent Schools Council to meet senior members of the Home Office’s Tier 4 policy and operational teams in order to explore the issues in more detail. We have set out below the current position.
The new rules
Paragraph 15 of the Tier 4 Sponsor Guidance issued in October 2013 includes the following provision:
‘Before an employer or education provider decides to sponsor a migrant who is already in the UK, they must also complete appropriate checks to ensure the migrant has valid permission to be in the UK’.
Paragraph 519 of the October 2013 Sponsor Guidance states:
‘…you are expected to contribute to supporting immigration control. In particular, you must take reasonable steps to ensure that every student at your institution has permission to be in the UK. Failure to do this may lead to the revocation of your licence’.
Paragraph 610(t) of the October 2013 Sponsor Guidance states that the Home Office will consider revoking a sponsor’s licence if: ‘…we find, upon inspection, that you have students studying at your institution without valid permission to be in the UK’.
In relation to new students, the Home Office expects independent schools that are Tier 4 sponsors to ensure that, prior to admission, a question is completed by every student or their parents on the enrollment or application form as to whether or not the student is a UK/EEA national or a non-EEA national.
If the form confirms that the student is a UK/EEA national, then the Home Office is likely to consider that a reasonable check has been undertaken and that no further action is needed.
If the answer is that the student is a non-EEA national, then the Home Office expects the school to ask a further question in order to ascertain the type of leave the student has and the date it will expire. As long as that date is then recorded, that should be sufficient to discharge the initial obligation to carry out a check. If the student does not have indefinite leave to remain, then further checks should be conducted prior to the expiry of leave in order for the school to be satisfied that the leave has or is being extended.
Whilst the Home Office may not currently require independent school sponsors to retain copies of passports and endorsements of leave to enter or remain for non-sponsored students, we would suggest that schools may wish to keep copies for their records. Sponsors are, of course, required to retain copies of passports and other documents they relied on in order to sponsor students under Tier 4.
Independent school sponsors should ensure that their terms and conditions allow for checks to be conducted and for pupils to be withdrawn from school if they cease to have valid leave to remain.
The situation in relation to existing students – and indeed students who have temporary leave that will expire in the future – is currently less clear.
The Home Office would like independent school sponsors to perform checks on existing students and report to them when a pupil has no leave or if their immigration status is unclear. This would mean that checks would need to be carried out on many thousands of school children.
Many schools may not have carried out stringent checks previously because of the lack of clarity in the rules. The contractual basis for performing checks and taking action in relation to pupils who enrolled before the new requirements came into force may therefore be weak. Given the potentially serious ramifications for schools, pupils and families of the school making reports about students to the Home Office, it has agreed to consider the various legal issues and provide more detailed guidance for independent schools on the measures that should be taken.
We will provide an update when further information is available. In the meantime, we suggest that independent school sponsors adopt a cautious approach to conducting checks on existing students and only do so if they have carefully considered the measures they will take and the potential legal consequences for all concerned if a pupil does not have valid leave.
This is an extremely complex and fast-changing area of law and this note is a general update only. It is not to be relied on as specific legal advice. Please also note that the paragraph numbers referred to above refer to the October 2013 Sponsor Guidance for Tier 4 Sponsors. The Home Office updates its guidance notes frequently and the paragraph numbers may change.
How we can assist
If you require specific legal advice on this area of law, we can be contacted here.