A new Statement of Changes in Immigration Rules (HC 1078) was laid before Parliament on 16 March 2017 covering a range of issues. Here we highlight some of the key changes, coming into force on 6 April 2017, that are most relevant to Tier 4 sponsors from a sponsor compliance perspective and we also consider other developments and recent case law.
Tier 4 student workers
The Statement of Changes includes a definition of a “week” as meaning a period of 7 days beginning with a Monday. This is relevant to Tier 4 sponsors in terms of the number of hours per week that sponsored students are permitted to work.
Sponsors may need to update the information they provide to international students to ensure that this is clear to them. A student who has leave to remain in the UK under Tier 4 and who works more than their permitted hours, not only risks being accused of breaching the conditions of their stay, but also of committing a criminal offence under section 24B of the Immigration Act 1971 (as introduced by the Immigration Act 2016 in July 2016). Many international students come from countries that take a more relaxed approach to rules than the UK does and simply may not appreciate how seriously the Home Office views working in breach. They may not work that extra couple of hours if the rules are made clear to them.
An offence committed under section 24B of the Immigration Act 1971 is also a lifestyle offence under the Proceeds of Crime Act 2002, meaning that income gained from work that is not permitted could potentially be seized by the authorities. This could, in very serious cases, become relevant when institutions are considering how fees are paid and they may therefore wish to review their relevant POCA/money laundering related polices.
During a Tier 4 audit, UKVI (via the HEAT team if auditing a university) will check attendance records for students with a view to understanding the measures an institution takes to reduce the risk that sponsored students may be working in breach of the conditions of their stay, when they should be attending class or otherwise engaging. We look at attendance monitoring later in this update.
Checking financial evidence – take steps to avoid a conflict
A connected development relates to the fact that many institutions, before issuing a CAS, now carry out checks on bank statements to be satisfied that students will meet the maintenance requirements. Financial information may also be provided by the student to the institution for other reasons, such as hardship fund assessments, etc.
Paragraph 6.19 of Document 2 of the current Tier 4 Sponsor Guidance states:
‘If you have concerns about students working illegally in the UK or who are otherwise breaching their conditions, you should ensure that you report such concerns to us. This is one of your duties as a sponsor.’
It is therefore important that clear information is made available to students sponsored under Tier 4 explaining what action may be taken by the institution if a staff member, for example a member of the compliance team or an international student adviser (if they work within the institution rather than the Students’ Union), becomes aware that the student is breaching the conditions of their stay.
Students will then be able to make an informed decision before providing information to the institution via the staff member. This will not only be fair to students, but will also help the institution reduce the number of potential conflicts
or complicated situations that could arise and the number of reports that may need to be made to UKVI.
A UKVI audit could be triggered because a high number of such reports have been submitted and/or because they may already have information that indicates that a sponsored student is breaching their conditions of stay. During an audit they may wish to see the particular student’s file including, where a report has been made, the information that the student provided to the institution that triggered the reporting duty.
We would therefore urge institutions to take a cautious and sensible approach to the requirement to report ‘concerns’. Clear information should be available for staff as to the type of check to be carried out when assessing financial maintenance, etc. and the internal procedure to be followed in order to assess if a report needs to be made or not. Reporting a mere hunch or feeling is unlikely to be appropriate and we would recommend that a report pursuant to paragraph 6.19 is only made where there is clear and unequivocal evidence.
During an audit, if UKVI’s officers discover information on a student’s file that indicates that they are breaching their conditions (for example, a CV or emails with staff), they will expect to see that a report has been made.
Attendance monitoring – latest case review
The flow of High Court cases relating to Tier 4 sponsors has been overtaken in recent years by cases involving Tier 2 sponsors.
However, the latest case relating to a Tier 4 sponsor to emerge from the courts, R (on the application of London School of Science and Technology) v Secretary of State for the Home Department  EWHC 432 (Admin), demonstrates the scrutiny sponsors can now expect in relation to all aspects of compliance.
The following areas of compliance are all referred to in some detail in the judgement which can be found here and which we strongly recommend reading:
- Attendance monitoring
- Reporting duties
- Sponsor related changes
- Academic Progression
In relation to attendance monitoring, the court determined that:
‘The Guidance does not make clear what attendance records are to be kept; it might perhaps have been open to LSST….simply to produce its attendance record and nothing else. However I doubt this. Paragraph 3.15 of the Guidance identifies failure to monitor student attendance effectively as a failing which is likely to be considered a serious breach. It is highly questionable whether a tick box attendance form, without checking medical absences (and retaining medical records) would be sufficient. But certainly given the anomalies identified in this case I do not consider that the SSHD’s concerns were irrational or unreasonable. From the materials which were produced she was perfectly entitled to conclude that the case suggested that there were gaps in record-keeping.’
Whilst UKVI’s practices towards Tier 4 sponsors in different sectors may have differed in the past, all sponsors are now expected to act in accordance with the sponsor duties as set out in the Tier 4 Sponsor Guidance. Any sponsor that opts not to implement those duties in a robust manner is potentially placing its licence at risk.
Part 6 (c) of Appendix D of the Sponsor Guidance confirms that sponsors are required to keep a: ‘Record of the migrant’s absence/attendance, this may be kept electronically or manually.’
Paragraph 3.15 of Document 3 of the Tier 4 Sponsor Guidance states that the following is considered to be a serious breach: ‘Failure to monitor student attendance effectively.’
UKVI expects institutions to ensure that the students they have sponsored to come to the UK to follow a course of study are attending timetabled lessons and otherwise engaging appropriately. They expect them to ensure that they are on track to successfully complete the course as described on the CAS within the dates on the CAS (unless changes have been reported in accordance with the rules). UKVI currently allows Tier 4 sponsors to implement their own approach to this area of sponsorship but does expect them to have a policy on sponsored student absence/attendance and to adhere to it.
In addition, pursuant to paragraph 6.24 of Document 2 of the Tier 4 Sponsor Guidance, sponsors must also report if a student has missed 10 expected contacts (also known as engagements). Tier 4 sponsors, as opposed to probationary sponsors, can define what a contact point is and may select two checkpoints during the year, the purpose of which are to undertake specific checks to determine whether students must be reported or not.
It is important to understand that UKVI regards the above as two distinct requirements. It expects sponsors to both monitor attendance effectively and act in accordance with their own policy (which must effectively deal with poor attendance) and have a process in place for checking and reporting missed contact points to UKVI.
Even when visiting a university, UKVI’s officers will ask to see absence/attendance records of specific sponsored students, in accordance with Appendix D, and they may also request sight of evidence that relates to any specific absences. Whilst there may, on the grounds of confidentiality and/or data protection, be reasons as to why this evidence may not be produced in full, which they may or may not accept, they are likely to at least want to see that it exists. They will also check the institution’s approach to reporting 10 missed contacts. They will want to know what the contact points are and they will want to see evidence that records are being kept and reports are being made.
Many sponsors now have a clear attendance and absence policy relating to Tier 4 students (and some have rolled this out to include all students) and also a clear policy in relation to the definition of and reporting of missed expected contacts.
UKVI may of course change its approach to this field of compliance in the future and could introduce a more relaxed approach for sponsors it deems to be highly trustworthy. Unfortunately, however, for now their expectation is that sponsors will have been meeting the requirements set out in the Sponsor Guidance. We recommend that sponsors keep this area of compliance under review and ensure that they would be able to produce a good set of information as to attendance, absences and engagement to UKVI during an audit. We can provide guidance on what this may look like in practice if needed, including in cases where strong attendance monitoring processes may not have been in place during previous years of sponsorship.
Evidence of relationship with parents/legal guardian for Tier 4 applicants under 18
The Home Office requires parents and legal guardians of children under the age of 18 to provide their consent to the arrangements relating to the travel, reception and care of the child. This includes children who are aged 16 and 17 who have the right to live independently in the UK, as their parent or legal guardian must consent for them to live on their own.
Paragraph 2.8 of Document 2 of the Tier 4 Sponsor Guidance currently confirms that sponsors must keep a copy of the letter of consent.
The Statement of Changes includes a new requirement to provide evidence of the relationship between the child and the person providing consent as follows:
- a birth certificate showing the names of the applicant’s parent(s);
- a certificate of adoption showing the names of the applicant’s parent(s) or legal guardian; or
- a Court document naming the applicant’s legal guardian.
We expect that the Tier 4 Sponsor Guidance will be amended to require sponsors to obtain and retain on file a copy of the consent documentation.
From a safeguarding perspective, it is extremely important that sponsors of children can communicate with the child’s parents or legal guardian, even if an agent has been involved in the recruitment process. If the child leaves the sponsor in circumstances that are of concern, UKVI is likely to carry out an audit of the sponsor and will expect the sponsor to be able to demonstrate how it has communicated with the child’s parents or legal guardian.
Credibility interviews extended to Tier 4 (Child) applicants aged 16 and 17
The Statement of Changes confirms that those applying under Tier 4 (Child) who are aged 16 and 17 may be interviewed under the Genuine Student Rule.
This will be considered on a case-by-case basis taking into account the risk posed to immigration control or, potentially, to the individual student, including cases where there may be suspicions that this route is being used solely for the purpose of bringing the child to the UK and not for study reasons.
Our compliance review service
We regularly carry out compliance reviews for sponsors and offer a range of options depending on the sponsor’s sector, size and risk profile. Our full compliance service for universities, for example, consists of:
- a review in advance of relevant policies and information;
- a two day on-site visit incorporating thorough interviews with visa compliance/admissions and HR staff, a review of student and staff files and a feedback session; and
- a legally privileged and confidential follow-up report which is designed for the Visa Compliance Team and also the VC’s office and Senior Management Team.
If you would like to discuss this service or any other legal questions or concerns you may have, please contact us.