On the 22 March 2011, the Home Secretary announced a number of significant proposed changes to the student immigration system. The UK Border Agency (UKBA) followed the announcement by publishing further information on its website and sending correspondence directly to sponsors.
Because of a general lack of clarity about some of the key points and various discrepancies between the changes announced by the Home Secretary and the information published by the UKBA, we have set out to summarise the current situation as announced by the Government in this document.
It is important to note that the High Court has ruled that a sponsor's licence is a 'possession' under Article 1 Protocol 1 of the European Convention on Human Rights which means it is legally protected. Sponsor licences are issued for a period of at least four years and business plans will take account of that. It is very important that any changes to the sponsor licence system made by the Government are made in accordance with, and with respect to, general and commercial legal principles.
The team at Penningtons is seeking to resolve a number of prima facie unlawful issues arising from the Home Secretary's announcement.
Accreditation and Highly Trusted Status
- According to the information released by the Home Secretary and UKBA, all sponsors which intend to continue to sponsor tier 4 students will need to be rated as Highly Trusted Sponsors (HTS) by April 2012. They will also need to become accredited by Ofsted and its devolved equivalents, or the Quality Assurance Agency or the relevant independent schools inspectorate by the end of 2012. Further clarification on the system of accreditation is needed urgently.
- According to the information which has been released, sponsors who do not meet the new requirements will remain on the sponsor register 'for a short period of time' from April 2011, but will be limited during this interim period in the number of students they can sponsor.
In a letter sent to sponsors Jeremy Oppenheim said that these changes will "limit sponsors' allocation of Confirmation of Acceptance for Studies (CAS) for the period 6 April 2011 to 5 April 2012 to be the same as the number used which resulted in approved migrant applications in the 12 month period 1 March 2010 to 28 February 2011 – that is, the number of CAS that resulted in a successful visa or leave to remain application"
There is a risk that education establishments (including new 'branches' and establishments which are new to the register) which did not allocate any CAS during the relevant period will be given a zero allocation as happened when interim limits for tier 2 sponsors were introduced.
- At a meeting of the Westminster Legal Policy Forum on 23 March 2011, Glynn Williams, Director, Immigration Policy, UKBA, stated that those universities, schools and publicly funded colleges which are not HTS will receive 'deemed' HTS status.
Evidence of funding
- The Home Secretary has announced that the government will strengthen the evidence that students need to show to demonstrate that they have the financial means to maintain themselves. UKBA has expanded on this point since the original announcement and has released the following information:
- All applicants will be required to sign a declaration that the funds they rely on to meet the maintenance requirement are genuinely their own and available to use;
- UKBA will refuse bank statements from banks that they cannot trust to verify the statements. UKBA will establish a local list of prescribed banks;
- A streamlined process for low risk applicants who will be studying at HTS organisations will be introduced. This will waive the requirements to provide documents beyond a CAS and passport/identity documents. In the Home Secretary's response to questions which followed her announcement she confirmed that the list of low-risk origin countries is currently made up of 15 countries.
English language requirement
- Students coming to the UK to study at degree level (NQF level 6 and above) will be required to speak English at upper intermediate level (B2);
- Students coming to the UK to study a lower level course will be required to speak English at Intermediate level (B1);
- UKBA officers will be able to refuse entry to students who cannot speak English without an interpreter;
- Those outside the University system will need to obtain a test certificate from an independent test provider proving they have attained the required level. Universities will be able to vouch for their students where they are coming to study degree level courses and above.
Working whilst studying
- According to the information published, university students and students at publicly funded further education colleges will continue to be able to work including during term time, all other students will not be able to work in the UK during term time. Some information from the UKBA suggested that these students cannot work at all and urgent clarification is needed.
- University students will continue to be allowed to work 20 hours per week during term time and students at publicly funded further education colleges will continue to be allowed to work for ten hours per week during term time.
- The ratio of work:study on work placements for non-university students will be reduced to one third work and two thirds study (33:66).
- University students remain able to undertake work placements where the ratio of work:study is 50:50.
- In her announcement the Home Secretary stated that, except for postgraduate students at universities and government-sponsored students, no other students will be permitted to bring their dependants with them.
- Since the announcement, the UKBA has added that postgraduate students must be on a course of at least 12 months duration in order to bring their dependants with them. The previous position was that the course had to be at least six months. It would appear, and this is supported in Jeremy Oppenheim's letter to Sponsors, that government-sponsored students still only need to be on a course for at least six months to bring dependants into the country.
- For students entering the UK to study a pathway course the UKBA document entitled 'Summary of the new student policy' states that 'private providers will be able to provide courses, including pathway courses by working in partnership and where the licensed sponsor takes responsibility and sponsors the student directly'.
Urgent clarification is required as to how, under the current system, effective co-sponsorship could occur in this scenario.
Course duration and time limits
- The overall time that can be spent in the UK on a student visa will be limited to 3 years for lower level courses (NQF 3-5), and 5 years for higher level courses (NQF 6-7). However, in response to questions that followed her announcement, the Home Secretary stated that students who wish to progress from undergraduate to postgraduate studies do not have to return home to obtain visas. Clarification is required as to whether these limits will apply to these students.
- For those students on longer courses such as medicine, veterinary science and architecture, and for PhD study, there will be permitted exceptions.
- Urgent clarity is needed in relation to the duration of visas for those studying at Scottish universities.
Post study work
- The current post study work route will be closed from April 2012. (The Home Office press release entitled "Major changes to student visa system", stated that the post study work route 'has been closed'. This is incorrect and it appears that the route will be closed from April 2012.)
- According to the information published, only graduates who have an offer of a skilled graduatelevel job from an employer licensed by the UK Border Agency will be allowed to stay and switch to tier 2. The job must pay at least £20,000 (or appropriate rate for the occupation as set out in the relevant code of practice - whichever is the higher).
- Since the Home Secretary's announcement, the UKBA has stated that:
- those graduates from a UK university with a recognised degree, PGCE, or PGDE will be able to switch into tier 2;
- students will only be able to switch if they are in the UK before their student visa expires; and
- the normal tier 2 requirements will apply, except for the Resident Labour Market Test.
- Clarification is urgently required as to when these proposed changes will come in and if the proposals may be changed/restricted when UKBA reviews Tier 2 in Autumn 2011 (Glynn Williams, Westminster Legal Policy Forum).
- Innovative student entrepreneurs who are creating wealth will be able to stay in the UK to pursue their ideas, but details of this new system have not yet been released.
We also refer you to the UKCISA news item about these changes for further information, which can be found here http://www.ukcisa.org.uk/student/index.php#student_consultation