The Government is planning the future UK immigration system for 2021. In part 1 of our White Paper review series, we considered the proposals for the Entrepreneur, Graduate Entrepreneur, Start-Up, Innovator and Exceptional Talent immigration routes. Here, in part 2, we explore what the future may be for international students, including post-study work options, and for the education providers that sponsor them.
The current position
The White Paper states that there are currently over 440,000 international students studying in Higher Education in the UK. Of these, around 135,000 are ordinarily domiciled in the EU (excluding the UK).
It states that, in relation to non-HE providers, in the year ending September 2018 the number of students who were sponsored was as follows:
- Further Education institutions – 14,506;
- Independent schools – 13,305; and
- English language centres – 4,487.
Students from the EU/EEA are not currently subject to any form of UK immigration control and are able to study in the UK without restriction.
Tier 4 Sponsorship
Unless they already have immigration permission to live in the UK (for example, as a dependant of a parent with Tier 1 status), non-EEA students coming to the UK for longer periods of study must make an application for a visa under Tier 4 (General) or Tier 4 (Child).
They must apply to study at a university, school or college that holds a Home Office issued sponsor licence and meet both the sponsor’s entry requirements and also the requirements that are set out in the Immigration Rules. These include, for example, a maintenance requirement and an English language requirement.
Once in the UK, they must comply with their conditions of stay, which include restrictions on work and self-employment.
During study, the university, school or college that sponsors the student has a number of duties to uphold, including monitoring attendance of sponsored students and ensuring that all students have the right to study in the UK.
Only independent schools are able to sponsor students aged from 4 to 16.
Current post-study options
Most (but not all) students who are sponsored under Tier 4 are granted leave that expires four months after the conclusion of their course.
Sponsored students who have completed a PhD can be sponsored by their Tier 4 sponsor for a further period of 12 months after they have finished their course. During this time they can work in the UK.
Sponsored students who have completed an eligible course have the option to switch into Tier 2 (General) and join the UK workforce, providing they can find a Tier 2 sponsor that will issue a Certificate of Sponsorship (CoS) to them before their leave expires.
One of the current advantages of switching from Tier 4 into Tier 2 is that the sponsor does not have to perform a Resident Labour Market Test (RLMT), a period of advertising for the role designed to protect the UK workforce. The sponsor can also pay the ‘new entrant rate’, the higher of £20,800 or the rate referred to in the relevant SOC code, which can often be significantly lower than the ‘experienced worker’ rate of £30,000. This can mean that more job opportunities are available to those who are switching from Tier 4.
Whilst the above options do allow many international students to remain in the UK to gain work experience, the post-study options are fairly restrictive and many students do struggle to find post-study work opportunities.
The White Paper contains proposals to expand the post-study options which we consider further below.
Shorter periods of study
Non-EEA students coming to the UK for up to 11 months for English language courses or up to six months for all other courses are able to use a route called the short-term study route.
Those who are on the visa national list, and those coming to the UK for more than six months, must obtain a visa in advance. All other students can seek entry to the UK under this route at the border.
The immigration White Paper proposals for students and education providers
The White Paper indicates that EU/EEA nationals who wish to come to the UK in order to study longer courses will, from 2021, fall within a revised Tier 4 sponsorship scheme. It states that:
‘Prospective students must also have a confirmed offer from an education institution in the UK. It is the Government’s intention that the same checks will apply to students from the EEA. All students coming to the UK under the future system will be sponsored by the institution at which they are studying, as is currently the case for non-EEA students. We recognise that this will increase the volume of students whom institutions will need to sponsor.’
The White Paper confirms that the Government will continue to apply no limits on the number of international students who can come to the UK.
It also suggests that a ‘light-touch’ approach to sponsorship will be introduced which is welcome news. It is likely, at the very least, that EU/EEA citizens will be included within Appendix H of the Immigration Rules. Appendix H allows certain applicants to submit fewer documents with their visa application.
‘As we move to a single system, we will continue to consider the increased use of differentiation to benefit students from countries with a strong track record of immigration compliance. Such differentiation could include the addition of EEA countries to Appendix H of the Immigration Rules, enabling EEA students to benefit from reduced documentary requirements when applying for a visa.’
Shorter periods of study
The White Paper states, in relation to shorter periods of study, that: ‘It is our intention that EEA citizens coming to study in the UK for short periods of time, generally up to six months, will be able to come to the UK on the same basis as other non-visa nationals.’
Cultural and other exchanges
Turning to cultural and other exchanges, it states that: ‘We will consider conditions for entry and stay for purposes such as study and youth exchanges. For example, the UK currently welcomes around 70,000 students from the EU under the Erasmus+ cultural exchange. If we continue to participate in this or a similar programme, we intend to ensure that EU citizens can study in the UK without needing to go through the full student visa process.’
Will EU/EEA students be restricted in their school choice?
As we explained above, in relation to schools, only independent schools are currently able to sponsor international students under Tier 4. Other schools, such as academies, are not permitted to do so.
In relation to the future system, the White Paper states that:
‘We will continue to welcome international students who want to study at independent schools in the UK, building on the existing route for international students under the age of 18 to include EU citizens.’
It would appear therefore that from January 2021:
- school age international students, including EU/EEA nationals, coming to the UK for study purposes will need to be sponsored by an independent school. This is unless they have another form of immigration permission that permits study (for example, they are a dependant of a skilled worker);
- independent schools that do not have a sponsor licence and that wish to teach school age international students, including EU/EEA nationals, who arrive in the UK after that date and who do not already have permission to study will need to enter the sponsorship system.
We will be monitoring developments in this area closely and strongly urge schools and their representative bodies to engage with the Government about its plans at a very early stage.
Bringing potentially significant numbers of students into the sponsorship system may create difficulties for sponsors, unless there is a truly ‘light-touch’ approach. Carter Thomas partner, Nichola Carter, considered what this may look like for Tier 2 sponsors (who sponsor workers) in her blog on the Free Movement website.
The Government refers to sponsor compliance for education providers in the White Paper, stating that:
‘Whilst we will continue to monitor carefully the compliance of all sponsors and take robust action where sponsors fail to meet the minimum standard, we will also consider ways in which the sponsorship system can be streamlined and made more ‘light-touch’. This will include the development of a new digital system, and engagement with the sector.’
It is going to be extremely important that education providers of all types and sizes that are already sponsors, or that will need to become a sponsor in order to enrol EU/EEA students needing sponsorship, engage with the Government on the design of the new system.
A welcome expansion of post-study options
The White Paper contains significant and welcome proposals concerning post-study work options for students. One of the most welcome proposals is that students will be automatically granted an extra period of six months leave to remain after the end of their studies to help them to find employment. It is proposed that PhD students will be automatically granted a further year’s leave.
It is proposed that the Tier 2 ‘new-entrant’ rate will be retained. This applies to those holding leave under Tier 4. Also, the skills threshold for roles under Tier 2, currently RQF Level 6, will be lowered to include role from RFQ Level 3.
The White Paper also confirms that:
‘We will also allow for students studying at bachelor’s level or above to be able to apply to switch into the skilled workers route up to three months before the end of their course in the UK, and from outside of the UK for two years after their graduation.’
Currently students must have completed their course and must apply from inside the UK if they are to retain the benefits of switching from Tier 4 into Tier 2.
So to round-up, according to the Government’s proposals, from 2021 (and potentially before then for some options) international students will be able to:
- make an application under Tier 2 up to three months before the end of their course, if they have found a sponsor;
- spend up to six months (12 months for PhD students) looking for work from inside the UK after they have finished their studies;
- be able to obtain sponsorship under Tier 2 on the basis of the ‘new-entrant’ rate for up to two years after the end of their studies even if they are abroad; and
- benefit from a swathe of new roles that will be available for sponsorship when the skills threshold is lowered.
The Migration Advisory Committee (MAC) has advised the Government that the RLMT is cumbersome, causes delay and is ineffective in trying to protect the domestic labour force. The Government has broadly agreed with this view and the RLMT will be removed as a requirement for sponsoring workers. As we have explained above, the RLMT is not applicable in relation to those switching into Tier 4 from Tier 2. However, some employers can mistakenly believe that it applies so the removal of the RLMT should ensure that such misunderstandings no longer occur.
Of course, further detail is required from the Government but, on the basis of the proposals set out in the White Paper, it does finally look as though improvements are on the horizon for international students who wish to take up employment opportunities in the UK after completing their studies here.
European students who are already living in the UK by January 2021
EU/EEA students who are already in the UK, or who come to the UK to study before the new system comes into force, will be able to continue to study without needing to be sponsored.
If an agreement between the UK and EU is reached, they will eventually need to apply under the, currently voluntary, EU Settlement Scheme.
In a no-deal scenario, according to information recently released by the Government, EU/EEA nationals, including students, who arrive after the UK leaves the EU but before the new system comes into force would initially be entered to the UK for three months. This will include a right to study. To pursue a longer period of study, they would have to apply for European Temporary Leave to Remain.
How we can assist
We work with a wide range of universities, colleges and independent schools and provide advice to them on compliance with the sponsorship system. We can also manage the CAS issuing process and operate the sponsor licence.
We also provide advice and assistance to non-EEA staff and students who need to apply for leave to enter or remain in the UK.
If you would like further information about any aspect of UK immigration law or about our services, please contact us.