We have recently reported that the Immigration Minister is considering reducing the visa refusal rate threshold for HTS sponsors to 10%. Here we look at the potential impact on small sponsors.
The 20% rule is already extremely difficult for sponsors that issue only small numbers of CAS to comply with. If an education provider issues, for instance, 1000 CAS over a 12 month period and these are used in visa applications by students, then the sponsor will be unaffected by this rule when applying to renew its HTS status providing no more than 200 visa applications have been refused.
However, in the case of a much smaller education provider that issues, for instance, only 20 CAS a year, just 5 refusals can trigger a decision by UKVI to revoke the Tier 4 licence on the basis that 25% of applications have been refused. If the Minister introduces a 10% threshold, then only 3 refusals could trigger a revocation.
Many independent schools, private sixth form colleges and English language providers issue only a small number of CAS and are therefore at risk under this rule. Retaining their sponsor licence is often extremely important from a financial and reputational perspective.
Under the law as it currently stands, UKVI is required to exercise discretion in such cases and take into account factors such as the disproportionate impact a small number of refusals can have on a sponsor that issues only a small number of CAS and other relevant matters including, for instance, the impact on children under Section 55 of the Borders, Citizenship and Immigration Act 2009 and the impact on all the other students who are studying at the institution.
Recently, however, the evidence suggests that their approach is toughening significantly.
The Genuine Student Rule
In addition, UKVI’s position is that any refusals that occurred prior to 1 November 2013 under the Genuine Student Rule (‘GSR’) – whereby students can be interviewed as part of the application process – will not be taken into account when sponsors apply to renew their HTS status. This was meant to allow sponsors time to adapt their CAS issuing processes and checks on prospective students under the new subjective regime.
However, in reality UKVI discounts both the entire application from the calculation for HTS renewal purposes rather than just deducting the refusal and this means that sponsors are being penalised for GSR refusals that occurred prior to 1 November 2013.
A sponsor has issued 50 CAS in a year that were used in applications for leave. Of those 50 applications, 20 were refused and 10 of those were refused under GSR prior to 1 November 2013.
If only 10 refusals, rather than 20, are included in the refusal rate calculation for the HTS renewal application and the 10 pre-1 November 2013 GSR refusals are removed from the calculation entirely, then the refusal rate would be 20% (10 out of 50). The sponsor would retain HTS status and keep its Tier 4 licence. However, in practice UKVI would actually deduct the 10 pre-1 November refusals from the overall figure and would take only 40 CAS into account. This means that 10 refusals from 40 CAS provides a percentage rate of 25%. In this case, and in the absence of other compelling factors, the sponsor’s licence would be revoked.
As such, many sponsors are starting to see their licences revoked because of refusals that took place under GSR prior to 1 November 2013 despite UKVI’s position that they would not be penalised.
We therefore recommend that sponsors review their HTS rates in light of this information.
You can find updated information on this area of law here.
If you need legal advice on any of these issues, please contact us.