Every now and then the plight of an individual immigrant in the UK catches our attention and makes us stop and think about our increasingly controversial system.
A girl singing her heart out on a TV show, a young man mugged whilst walking innocently through a London street filled with rioters, or a young women only just into adulthood who is torn away from her family and her studies weeks before her A-levels.
Regardless of whether or not such cases, when they arise, are ‘exceptional’ under immigration policy, they are often considered exceptional by the thousands of people who express concern, anger or disbelief about the outcome.
In the case of Yashika Bageerathi, there may be a solution that will enable this bright student to return to the UK, complete her studies and progress to a place at university without undermining the government’s tough stance on immigration. Surely if this can be achieved lawfully, and without cost to the British taxpayer, few would deny this young person such an opportunity?
In order to be granted a visa under Tier 4 of the Points Based System, Yashika will need:
- an offer of a place to complete her studies with an education provider that is on the government’s register of sponsors;
- funds to pay for the course and her living expenses; and
- confirmation that any ban on returning to the UK will be waived due to her specific circumstances.
Whilst in theory it could be possible for Yashika to apply to return as a student visitor for up to six months, the government is likely to be more open to Tier 4 sponsorship precisely because one of its approved sponsors would pledge to ensure that Yashika complies with UK immigration law. Unfortunately, the government does not allow state schools to offer places to student visitors and it classes academies as state schools. This probably therefore rules out Yashika from being able to return to her school.
Let’s look at Tier 4 therefore in more detail.
An offer of a place at an education provider
The government’s list of approved education providers can be found here.
Providing one of the institutions on the list is satisfied that Yashika is able to complete her studies and speak English at a suitable level, it could offer her a place and issue a Certificate of Confirmation of Acceptance for Studies (‘CAS’) for Yashika to use in an application for entry clearance. This would confirm the course Yashika will be studying and its length. If Yashika needed to take a Secure English Language Test, this could be arranged in a matter of days.
Funds to pay for the course and living expenses
International students are required to demonstrate that they have enough money to cover their course fees. If a course will last longer than 12 months, they must have enough money to cover the first 12 months. If the course will last less than 12 months they must have enough money to cover the entire cost.
In relation to living expenses, currently they must also have at least £1,000 per month if they will study a course in London or £800 per month if the course will take place outside London up to a maximum of 9 months.
For example, a student enrolled on a course in London costing £6,000 a year that will last for more than 12 months will need £6,000 (course fees) plus £9,000 (living expenses) – a total of £15,000. A student enrolled on a course in London for 6 months that costs £3,000 would need £3,000 plus £6,000 – a total of £9,000.
Many people have pledged to offer Yashika financial support and a charitable fund has been set up by her school.
It is also possible that an education provider may be willing to offer a scholarship to Yashika.
Confirmation that any ban on returning to the UK will be waived due to her specific circumstances
Under the Immigration Rules, the government has the power to deny an applicant permission to enter the UK in a number of circumstances, including if they have previously overstayed.
Where the applicant has previously overstayed the law states, in summary, that the person will also not be approved to re-enter the UK for a period of:
- 1 year if they left the UK voluntarily and not at public expense;
- 2 years if they left the UK voluntarily and at public expense, providing the date of departure occurred no more than 6 months after they received the notice of removal decision;
- 5 years, if they left the UK voluntarily at public expense but took longer than 6 months to leave;
- 10 years, if they were removed or deported; or
- 10 years, if they used deception in an application for entry clearance.
The mandatory grounds of refusal cannot be applied where a person was under the age of 18 at the time they last breached immigration law. Yashika though is over the age of 18.
The Home Secretary’s overriding discretion
However, it is a fundamental principle of our immigration system, and indeed our legal system, that the Secretary of State has an overriding discretion to depart from the Immigration Rules. Of course, the Home Secretary will only do this where there are exceptional circumstances.
Yashika was brought to the UK as a child.
Yashika was enrolled in school as a child.
She has broken no rules other than choosing to remain with her family and community when she reached her 18th birthday.
When most of our kids turn 18, they may be embarking on a new exciting adventure as an adult but in reality we keep them close and keep an eye on them. We guide them through the early stages of adulthood and try and soften some of the harsher realities of adult life for a while. Members of the government surely do the same when their children become young adults.
On the day Yashika turned 18 was she really meant to celebrate by leaving a country she was brought to as a child and her mother, her family, her friends, her education and her safety? Is it fair that our immigration system should punish her for another 10 years because she didn’t? Is that not an entirely irrational and disproportionate response?
Surely Yashika has more than paid the price for the ‘choice’ she made on her 18th birthday already and I urge the government to confirm that if a sponsor can be found and if funds can be raised, Yashika won’t be denied the opportunity to return to the UK lawfully in order to complete her studies.
This article was written by Nichola Carter, principal and founder of Carter Thomas Solicitors.
For further information, or if you work for a sponsor that may be willing to offer Yashika a place to complete her studies, please contact us and we will put you in touch with her legal team.
This article was originally posted on 4 April 2014 and was updated on 5 April.