A new detailed set of Immigration Rules, covering a number of categories, was laid last month in Statement of Changes HC 877. Most of the changes are due to come into force today and here we highlight some of the main ones relating to education providers.
Prohibition on engaging in business activity
Students who are sponsored under Tier 4 are already severely restricted in the economic activity they can perform and this includes a prohibition on being self-employed. The new rules seek to further extinguish any entrepreneurial flair by ensuring, beyond doubt, that Tier 4 sponsored students must not set up a business, even if they will not be the controlling shareholder.
Sponsors should ensure that they include information about this restriction when notifying Tier 4 sponsored students of the conditions of their leave in the UK.
Many UK universities have an outstanding reputation for helping students turn business ideas into reality via enterprise incubators and the like. No doubt the sector will seek to persuade the Home Office to open up an avenue to allow their Tier 4 sponsored students to take part in such activity. Until then, sponsors will need to review such arrangements to ensure that breaches do not occur.
Two and five year time limits
The new rules confirm that the relevant maximum two and five year time limits on study will be based on the period of leave granted and the level of the course for which leave was granted rather than, if different, the duration and courses studied.
A correction to the original Statement of Changes also now confirms that time spent in Tier 4 (General) whilst aged 16 and/or 17 will be excluded from the time limits. Time spent under Tier 4 (Child) remains excluded.
The rules relating to academic progression will now kick in for all applications for further leave to remain where the applicant has been granted leave under Tier 4 (General) or in the old Student category at any time previously. Up to now the academic progression rules have only come into play in relation to the last period of leave under Tier 4 (General)/Student.
The rules concerning academic progression confirm that, in order to meet the academic progression requirement, applicants must have successfully completed their last course of approved study and must be applying to study a course that is at a higher academic level, unless:
- the course is taught by a publicly funded UK HEI or a recognised body that is also the sponsor; and
- the course is at degree level or above; and
- the sponsor confirms, if the course is at the same level as previous study, that it is related to the previous course or, in combination with the previous course, will support the student’s genuine career aspirations. (If a course is below the level of the previous course, sponsors cannot support an application for leave to remain from inside the UK).
There is much uncertainty about many aspects of the rules on academic progression and unfortunately this also related to information coming from UKVI and Premium Account Managers.
Clear evidence must be obtained and placed on file to support each decision relating to academic progression where the next course is at the same level as the previous course.
The specific rules relating to academic progression are not relevant in relation to Tier 4 applications made abroad. They only apply in relation to applications made from inside the UK. Applicants who apply from abroad will, of course, be subject to the genuine student rule and, as part of that, Entry Clearance Officers do often consider their previous study in the UK and in particular whether or not they have failed to complete previous courses or have failed to progress academically.
Sponsors, including universities, should of course be asking for the UK immigration history of students at the very start of the process. Where a student has confirmed that they have previously studied in the UK it is important that sponsors obtain and review information provided and that, even in peak periods, such reviews are conducted by compliance personnel with appropriate knowledge and experience. Very careful consideration as to whether or not to issue a CAS should be given if a student cannot demonstrate that they have successfully completed previous courses in the UK or have failed to progress academically. If there are any doubts, the sponsor should err on the side of caution and not issue a CAS.
Changing courses with the same sponsor
Only students who are sponsored under Tier 4 (General) by a UK recognised body or publicly funded UK HEI and who are studying at degree level or above will be able to change a course they have not completed providing:
- the new course will be taught by the existing sponsor;
- the new course is at degree level or above and is not at a lower level than the original course;
- the sponsor holds Tier 4 Sponsor status;
- the new course can be completed within the period of the Tier 4 (General) student’s existing leave; and
- the sponsor confirms that either (i) the course is related to the previous course or (ii) that the two courses combined support the applicant’s genuine career aspirations.
This change should bring an end to scenarios whereby sponsors have allowed sponsored students to switch early on in their studies from, for example, a history degree to a science degree (despite the risk of such practice being likely to be deemed a breach of the existing rules by UKVI).
The Home Office has taken the opportunity to make it clear that those coming under the short-term student route must be ‘genuine’ students and that their purpose for coming to the UK must be to study.
We expect UKVI to take action against sponsors that are supporting individuals to come to the UK under this route who are not regarded as genuine students by UKVI and we recommend that sponsors assess their intention and ability in a similar manner to Tier 4 (General) students.
We have highlighted the main changes above. Information as to other changes relating to Tier 4 can be found on pages 7 – 9 of the Explanatory Memorandum to the Statement of Changes.
Our Tier 4 sponsor compliance review service
The Home Office expects all Tier 4 sponsors, regardless of the type, to fully comply with not only the specific rules of sponsorship but also the spirit of sponsorship.
Sponsors that wish to retain their licenses must approach compliance on the basis of actively seeking to ‘help prevent abuse of the system’ rather than simply playing the game and must ensure that a strong culture of compliance exists across all areas of the institution. Departments, schools, tutors and lecturers must all work with and support compliance teams if the institution is to retain its ability to sponsor international students and staff. Retaining the sponsor licence should form part of the institution’s core strategy and compliance as a sponsor, taking into account the associated risks of a licence revocation, should appear on the risk register.
We offer a compliance review service for sponsors, the objective of which is to highlight any weaknesses and, crucially, recommend action that can be taken to strengthen compliance. We review compliance in relation to students, staff and visitors and we provide a comprehensive report designed specifically to assist the Vice Chancellor, Executive Board, senior staff and compliance personnel. We can deliver our key findings and recommendations verbally if needed and provide follow-up training.
For further information on our services for Tier 4 sponsors, please contact us.