UK: Immigration Update: Education Focus - March 2010

Last Updated: 18 March 2010
Article by Nichola Carter

Due to the complex and frequent changes in tier 4, the widespread media coverage and the anxiety this is causing, education providers need to keep abreast of the new developments in immigration law that are affecting their sector.

Sponsor Licence Suspensions - What To Do If Your College Is Suspended

A significant number of education providers are seeking advice on measures to comply with the rules and avoid a licence suspension as well as what to do if a suspension occurs. The most common triggers for enforcement action we have seen are:

  • failure by sponsors, particularly those which are expanding rapidly, to invest proportionately in effective systems to monitor and record attendance and trigger warnings when students are not attending;
  • the provision by sponsors to UKBA of attendance records and other data which indicates non-compliance;
  • the issuing of visa letters and Confirmation of Acceptance of Studies (CAS) without full regard for the rules and without keeping a full record of the reason for issuing these documents;
  • the provision by sponsors of courses which do not comply with tier 4 rules (learning support tuition for distance learning courses which are non-compliant is a particular trigger for non-compliance action);
  • allegations that sponsors have inadequately tested students' intention and ability to study;
  • lack of knowledge about and control of agents working abroad;
  • failure by sponsors to gain accreditation to use new premises and failure to inform UKBA about this;
  • administrative staff who are not aware of the sponsor's tier 4 duties;
  • copies of necessary documents not being kept on file;
  • prevention of illegal working checks being undertaken incorrectly in relation to employees;
  • failure to notify UKBA of changes to the sponsor organisation and those who own the sponsor;
  • reports to UKBA from immigration officers at border control and entry clearance officers abroad of suspicions and concerns about students and sponsors;
  • results of enforcement action against employers where students who are meant to be in class are found working;
  • sponsors teaching courses requiring 15 hours a week classroom based study over two days.

Where UKBA suspends a sponsor's licence, it will usually send a visiting officer to the sponsor to conduct an unannounced visit. The purpose of the visit is for the visiting officer to check the allegations of non-compliance against the sponsor. Where the visiting officer finds the allegation to be true, there is a high risk that revocation of the licence will occur, regardless of the steps the sponsor has taken to try and comply with the rules, unless careful representations are made to the suspension unit.

We have secured the lifting of suspensions for sponsors through careful negotiation and close cooperation with the sponsor licence unit and it is essential that an early approach is made to UKBA as soon as notice of a suspension or intention to revoke or down-grade a licence is received.

In relation to maintaining a licence, it is essential that sponsors refer to the Sponsor Guidance rules on a frequent basis. The rules set out the duties of a sponsor and also set out which courses a sponsor may offer and what to report to UKBA.

Some of the guidance is not sufficiently clear and where that is the case, we are in correspondence with UKBA on behalf of many of our clients for further clarity and definitions. We will also offer our clients our practical advice on how unclear rules should be interpreted to afford legal protection.

Highly Trusted Sponsors - The Current Position

This new category of highly trusted sponsors is due to be implemented on 6 April 2010.

Under current proposals, only those with this status will be able to offer courses at National Qualifications Framework (NQF) level 3 (and its equivalents) and courses below degree level with work placements.

The Government has stated that it is considering only allowing publicly funded institutions to be automatically treated as highly trusted sponsors as of 6 April 2010, with a view to allowing those from the private sector to apply for the status only if certain criteria are met. The criteria have not yet been announced.

This is causing great concern to a number of sponsors and when we receive further information we will provide updates about this on our news pages (http://tinyurl.com/yeqy3ba).

The End Of The Visa Letter Regime And Issuing CAS

From 22 February 2010 all potential tier 4 students applying from inside or outside the UK must use a CAS in their application. All applications that do not contain a CAS will be refused.

Sponsors who have issued visa letters which were not used prior to 22 February 2010 in an application for leave by a student are advised to report that information to UKBA in order to avoid this giving rise to allegations of abuse by the sponsor in the future.

Sponsors must provide all potential students with a CAS reference number along with the sponsor licence number (SLN). Where agents are used, this information should be given by the sponsor to the student with the agent copied in on that correspondence if necessary. The information should not be given to the agent direct as this may be regarded by UKBA as a breach of the rules.

In addition, the sponsor should give the prospective students all the information they will need when making the application. This information is sometimes called a 'CAS statement'; it is up to the sponsor to decide its format and how to send it to their potential students in a secure manner. A 'CAS statement' should contain:

  • student name
  • contact details for the sponsor, including sponsor licence number
  • student date of birth
  • course title
  • course start and end date
  • details of any financial sponsorship/deposits taken
  • documents that should be included as part of an application to prove qualifications
  • CAS number
  • ATAS certificate (if appropriate)
  • amount of course fees payable and confirmation of any fees that have already been paid.

Reporting Duties - Compulsory From 22 February 2010

These generally relate to students' non-attendance, non-compliance or disappearance. Sponsors are required to report via the Sponsor Management System within 10 working days, (along with any explanation from the student), where the student:

  • does not enrol on the course within the enrolment period
  • misses 10 expected contacts without permission (contacts include interactions eg tutorials, submission of coursework etc)
  • discontinues his/her studies (including deferral)
  • ceases to be sponsored by the sponsor.

The sponsor must also report:

  • significant changes in the sponsored student's circumstances eg location of studies changes, shortening of the duration of the course – the report must be provided within 10 working days;
  • information suggesting the sponsored student is breaching conditions of their leave eg working without permission – the report must be provided within 10 working days;
  • significant changes in the sponsor's circumstances eg sponsor involved in a merger or is taken over – the report must be provided within 28 calendar days;
  • the appointment of a new principal or a change of owner by a private further or higher education institution – the report must be provided within 28 days of the change;
  • details of any third party or intermediary, whether in the UK or abroad, that has assisted it in the recruitment of migrant students;
  • the sponsor is also required to pass to the police any information it may have that
  • suggests that the student may be engaging in terrorism or other criminal activity.

Sponsors should take care when making reports to UKBA to ensure that they are accurate and clear and may not give rise to suspicions by UKBA as to the sponsor's ability to comply with the rules.

Students Employees - New Restrictions On Employment From 3 March 2010

The following changes have been implemented with effect from 3 March 2010:

  • reduction of the amount of time students studying below degree level (except students on foundation degree courses) can work during term time from 20 to 10 hours a week; and
  • a ban on the dependants of students studying below degree level (except students on foundation degree courses) working unless they qualify in their own right. In addition, there is a ban on students who are studying on courses of six months or less from bringing their dependants with them to the United Kingdom.

The above changes affect all applications, including extension applications, made in relation to entry clearance and leave to remain on or after 3 March 2010. Where an applicant made an application for entry clearance or leave to remain before 3 March 2010 and the application has not been decided, it will be decided in accordance with the rules in force prior to these changes being implemented.

Where a student holds valid leave which was granted before 3 March, they will be able to continue to work 20 hours a week.

Students on foundation degree courses and courses at NQF level 6 (and equivalents) continue to be able to work for 20 hours a week during term time and full time during vacation periods as usual and are not affected by the changes introduced on 3 March.

Where a student is working for a number of employers, the permitted hours as above are the total hours per week a student may work. They may not, for instance, work 10 hours a week for one employer and 10 hours a week for another employer. A student found working in excess of their permitted hours will face the curtailment of their leave, while their sponsor may face suspension and their employer may face a civil penalty of up to £10,000.

Tough New Rules Relating To English Language From 3 March 2010

From 3 March 2010 students, other than those sponsored by overseas governments or those who are on pre-sessional English language courses which prepare them for full degree courses, coming to the UK under tier 4 to study English may only study courses at B2 on the Common European Framework of Reference (CEFR) rather than A2 as previously. Sponsors offering courses below B2 to tier 4 students will face losing their sponsor licence.

Criminal Liability For Providing Immigration Advice

Sponsors and other bodies involved with tier 4 are reminded that under section 84(1) Immigration and Asylum Act 1999, it is a criminal offence for anyone (other than solicitors, OISC registered advisers, not-for-profit organisations and various other exempted bodies, which include certain educational institutions) to provide immigration advice or immigration services.

There is a specific exemption for licensed sponsors of tier 2 and tier 4 migrants to provide immigration advice or services to those migrants or their immediate families, provided that they do so free of charge.

This exemption is, however, limited and only applies if the advice or services are in relation to the tier 2 or tier 4 application of the migrant and his/her immediate family. If it is not related to the migrant's application under the PBS, it will be a breach of the Act and may result in a prosecution for a criminal offence.

For example, it would be an offence for a tier 2 sponsor to advise a prospective or existing employee in relation to an application under tier 1 (general). Similarly, it would be an offence for a licensed sponsor of a tier 4 migrant to advise a student about a switch into tier 1 (post study work).

If you are an organisation which is involved in assessing or accrediting sponsors, and you are unsure if you are providing 'immigration advice or services' in terms of checking compliance with sponsorship duties, please contact us.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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