Following the Ministerial Statement on Student Visas on 24 June 2014, a substantial number of education providers – both private colleges and publicly funded universities – remain under intense scrutiny from the Government. UK Visas and Immigration (‘UKVI’) continues to investige thousands of individual students and the education providers that sponsor them.
At the heart of the issue is the Government’s investigation into ETS’ English language tests for UK visa purposes and the allegation that ‘more than 29,000′ test results have been found to be ‘invalid’ and ‘more than 19,000′ have been found to be ‘questionable.’
This has been a summer of turmoil for many Tier 4 sponsors and a summer of great concern for the UK’s education sector generally. It has also produced, and continues to produce, a number of extremely serious legal and financial issues.
Some sponsors are finding themselves in the difficult position of fearing that their sponsor licence will be revoked if they do not comply with requests to withdraw the sponsorship of students who are alleged to somehow be connected with the ETS investigation, when the sponsor has not seen any evidence.
We explore some of the legal issues surrounding such a decision.
Welfare of students and staff and the general principle of fairness
Many experts in both the legal and the education sectors are becoming increasingly concerned as to the evidence that is emerging concerning individuals who are alleged to have directly cheated, or are alleged to have been involved somehow in cheating, and whether or not such evidence would withstand judicial scrutiny.
In addition, a blunt strategy that pits sponsors against their own students is deeply unsatisfactory and has, of itself, the potential to do untold damage to the UK education sector’s global reputation.
Before we consider this area of law from a sponsor’s perspective, it is essential to remember that, given the sheer numbers involved and the manner in which the investigation is being conducted, potentially vast numbers of innocent students are almost certainly finding themselves caught up in this issue.
Those students who are entirely innocent but who have mistakenly appeared on a UKVI list of individuals accused of cheating – perhaps voice recognition software concluded that they sounded like another person who had cheated, perhaps they share the same name and nationality as a person who has cheated, or perhaps there has simply been a data error amongst the 50,000 or so entries – need to be given both the time and the forum to prove their innocence.
There will be others who have been driven to take shortcuts they might otherwise have avoided due to circumstances that may need careful consideration (mental health issues, financial concerns, family pressure, etc.). Even the most guilty should expect to be treated in a manner that is consistent with the UK’s status as a democratic country and one that has chosen to observe the rule of law and principles of natural justice. Whilst the phrase ‘illegal-migrant’ is now common ground, such labeling cannot of itself justify any attempts to bypass basic legal rights and procedures.
Sponsors that take the time to weigh up the various issues, scrutinise the evidence presented to them and act in a manner designed to protect both the welfare of their students and their sponsor licences may reach very different decisions to those who simply try and appease the authorities, regardless of whether or not data is reliable or flawed.
It is also extremely important that compliance and other staff in institutions that are being investigated are given support and assistance. Dealing with an intense UKVI investigation can be extremely stressful. Staff may question whether they missed something and whether their jobs are safe, whilst at the same time trying to protect the reputation of the sponsor and help affected students, many of whom may be afraid and anxious whilst also being a long way from home.
The Minister confirmed on 24 June 2014 that the investigation began in February. Some eight months later and with more than 50,000 individuals under investigation, the scale of this investigation is unprecedented.
Legal dilemmas for Tier 4 sponsor licence holders
Sponsors are under a positive duty to ‘help to prevent the system being abused’ (paragraph 1, document 1, Tier 4 Sponsor Guidance).
Therefore sponsors should not ignore requests from UKVI to take action against specific students who are believed by UKVI to be amongst those in the ‘invalid’ or ‘questionable’ ETS test categories.
However, by the time a sponsor is considering whether or not to withdraw a Tier 4 student from its course, that student will have already been granted leave to remain or leave to enter by an Immigration or Entry Clearance Officer who is trained in both detecting fraud and uncovering individuals who do not posses genuine intentions. Students who have entered the UK via an airport are especially likely to have been asked questions designed to assess their credibility by a Border Force Officer. All these trained officers will have concluded that the student in question was eligible to study in the UK.
It is therefore extremely important that care is taken by untrained sponsors when deciding whether or not they have sufficient evidence to make a decision about a specific student who has been permitted entry to the UK by the authorities.
What do the Immigration Rules and the Sponsor Guidance say?
Under the system as it currently is, only a sponsor has the power to withdraw sponsorship.
The Sponsor Guidance does not contain a clause that requires a sponsor to withdraw sponsorship because it is told to do so by UKVI. The Sponsor Guidance has been changed on numerous occasions and a paragraph requiring sponsors to withdraw a student when directed to do so by UKVI could have easily been inserted.
This therefore leaves sponsors in an extremely difficult position and, arguably, a sponsor should only take such action if it believes that the immigration system is ‘being abused’ by the particular individual (for instance, because they are breaching the terms of their sponsorship, or provided forged documents to gain entry to the UK, or are working in breach, etc).
The duty to co-operate
Sponsors are subject to a duty to co-operate with UKVI (paragraph 98, document 3, Tier 4 Sponsor Guidance).
It could of course be argued that a sponsor that does not co-operate with a request by UKVI to withdraw sponsorship is breaching its sponsor duties and may therefore face a revocation of its licence.
However, paragraph 98 of the Sponsor Guidance defines the duty to co-operate in the following terms:
‘To allow us to manage the sponsorship system property, you must:
a) allow our staff access to your site or sites and any of the branches under your control, on demand (whether visits are prearranged or unannounced);
b) try to minimise the risk of immigration abuse by complying with any good practice guidance we produce or any sector body may produce with our agreement; and
c) comply with requests for information from the Home Office in connection with the prevention or detection of crime, the administration of illegal working civil penalties and/or the apprehension or prosecution of immigration offenders.’
The Home Office has not therefore incorporated into the Sponsor Guidance a clear and unequivocal duty on sponsors to withdraw sponsorship from students solely on the basis of being told to do so by a UKVI officer.
Paragraph 163(v) does state that UKVI will consider revoking a licence if:
‘You fail to comply with a reasonable request to co-operate with us.’
Before making a decision to withdraw sponsorship, it is therefore incumbent on sponsors to consider whether or not the request to withdraw students is ‘reasonable’.
What is a ‘reasonable’ request?
At the very minimum sponsors should expect any request from UKVI to be made in writing with sufficient information to enable the sponsor to make an informed decision that the withdrawal of sponsorship is justified. If a request is not made in writing, the sponsor will be unable to prove that it was acting on a request from UKVI.
If UKVI did revoke the licence of a sponsor solely because it has failed to withdraw sponsorship from a student on the grounds that it does not have sufficient evidence to justify such action, the sponsor would undoubtedly have an arguable case that the revocation was unlawful.
Decisions that are held to have been taken by a public body that is acting in a manner that is ultra vires, i.e beyond its powers, and/or in a manner that is legally unfair or irrational, are unlawful.
If the sponsor is of the opinion that it has received insufficient evidence to justify the withdrawal of sponsorship, such a decision may be best delayed until such time as UKVI does produce stronger evidence and the sponsor should set out clearly in writing its request for more information. There are of course data protection issues that the sponsor will need to take into account.
Immigration Officers, like all other civil servants, are required to act in a manner that is both lawful (including under the terms of the Sponsor Guidance) and that abides with the Civil Service code. The Code expressly requires that they act with integrity, honesty, objectivity and impartiality.
Many of UKVI’s officers strive to act in a manner that aligns with the Code and senior officers will want to know of any concerns in that regard. Sponsors should not therefore have any reason to be anxious that a reasonable request for more information may somehow place their licence at risk.
Are the terms and conditions appropriate?
Where a sponsor has reviewed all the facts and information relating to a particular individual and is considering withdrawing sponsorship, it is important to firstly ensure that they are contractually entitled to take such action.
If there is no contractual basis upon which to withdraw sponsorship then doing so may be unlawful. Compromise agreements may prove to be a suitable alternative but they do, by their nature, require the agreement of both parties who have received suitable legal advice if they are to be enforceable.
Whether or not the sponsor is legally entitled to withdraw sponsorship in the absence of a specific contractual entitlement will depend largely on whether or not there is sufficient evidence to render the contract unenforceable.
In the absence of a clear duty to act on a request to withdraw by UKVI in the Sponsor Guidance, sponsor’s should avoid assuming that reliance on a mere statement made by UKVI, in the absence of robust physical evidence, will be sufficient to justify withdrawal action as lawful.
This particular area of law is extremely complex and, currently, untested in the courts and as we near the General Election next year, there are obvious attractions for the Government in being seen to take action against tens of thousands of migrants.
UKVI is carrying out an extremely important investigation which relies on the support and co-operation of sponsors. However, sponsors too have a range of obligations and duties towards the students they have sponsored and should not withdraw them from their studies without strong grounds to do so.
If action by both UKVI and sponsors is to be fair and lawful, co-operation and understanding is needed on each side and each issue must be considered on a case by case basis.
If your organisation holds a Tier 4 sponsor licence and requires legal advice on this complex area of law please contact us.