In his speech, the Minister acknowledged that the challenge remained to ‘create a sustainable migration system which benefits our country, one that ensures that the UK attracts talented people from overseas with skills to help our economy grow.’ To read his speech in full, click here.
The Minister's speech came a week after the latest net migration figures were released; the figures showed that net migration had increased from 154,000 in the year to September 2012 to 212,000 in the year to September 2013. In response, the minister made it clear ‘that this Government’s focus must remain and will remain on getting the numbers down’.
He went onto state that: ‘The student visa regime neither controlled immigration nor protected legitimate students from substandard sponsors. We have reformed the system and more than 700 education providers have been removed from the sponsor register since 2011.’
Earlier this month, more than 150 academics had claimed in a joint letter that universities are acting as an 'extension' of government immigration authorities and that they are eroding the trust of their students in the process. Part of the Minister’s speech appeared to be framed as a response to that letter. He stated that: ‘We have also heard recently from academics from a number of universities complaining about the checks institutions are required to make to ensure foreign students have permission to be in the UK. I’m sorry, but is it really unreasonable to require universities to ensure students are genuine? After all, they would hardly admit a British student without checking their A-Level results. Don’t they have a responsibility to their own students and their institution’s reputation – let alone to the people in the wider community who are negatively impacted by bogus students who come here not to study, but to work?’
In a further attack on the education sector, the Minister stated that: ‘The trusted status given to universities and colleges who want to attract foreign students isn’t an automatic right. And it is one that carries responsibilities.
Universities and colleges – who after all benefit from foreign students’ fees – must adhere to the guidance and immigration rules of sponsorship by taking reasonable steps to ensure that every student has permission to be in the UK. Currently, the threshold at which education institutions lose their right to sponsor overseas students is a refusal rate of 20%. That is the equivalent of 1 in 5 of the people education institutions are prepared to offer places to being refused by the Home Office because they cannot demonstrate that they are genuine students. Clearly, the existing rules which allow such a large margin are extremely generous. The vast majority of education institutions are nowhere near that refusal rate. But some are: which gives rise to considerable concerns about those institutions and their approach. I think that at 20% the refusal rate figure may be too generous and we may need to look again.’
Elsewhere in the news, it has been reported that the Minister is considering lowering the HTS refusal rate to 10%.
ANALYSIS OF THE MINISTER SPEECH
The Minister’s speech and the increase in net migration figures unfortunately mean that international students and those who educate them continue to be a target of this government. The Minister’s statement appears to contradict the government’s initiative to attract more international students. Further immigration rule and guidance changes, along with the press headlines that will come with these, will inevitably result in many international students opting to study in other countries.
The Minister may be correct, and more than 700 Tier 4 sponsors may have been removed from the Tier 4 register since 2011. However, as previously reported by this firm, some sponsors may have been removed from the register for compliance reasons or due to a failure to obtain HTS status. It is, however, also true that many sponsors chose not to remain on the Tier 4 register for legitimate business reasons, for example, English language schools that opted out of Tier 4, instead recruiting students via the extended student visitor route.
With regards to the letter written by the academics from leading universities, although in general it is unlawful to directly or indirectly discriminate against students due to their nationality, as nationality (race) is a protected characteristic, the Equality Act 2010 includes an exception where discrimination is lawful if it is done to comply with another law, Ministerial arrangements, or Ministerial conditions. The requirement to take reasonable steps to ensure that every student at the institution has permission to be in the UK has been imposed by way of guidance on Tier 4 sponsors. However, the Courts have determined that guidance does not need to be laid before Parliament. It is important, therefore, that any arguments that are put forward in relation to compliance be constructive. It is also possible to put policies and procedures in place to ensure that there is minimal impact on students.
In relation to HTS and lowering of the refusal rate to 10%, Tier 4 sponsors and those who advise them are aware of the discrepancies between visa refusals. This is because many refusals are both outside the control of the student and the sponsor, and some are the result of Home Office errors. It is therefore misleading for the minister to conclude that '20% is the equivalent of 1 in 5 … being refused by the Home Office because they cannot demonstrate that they are genuine students'. The Courts have also examined this point through a number of challenges brought by Tier 4 sponsors. In the majority of cases the Courts have determined that 20% allowed leeway for refusals based on matters which a sponsor could not reasonably anticipate. In at least one case, it was noted that a 20% refusal rate means that the Home Office does not need to review each and every refusal as 20% allows for discrepancies. Lowering the rate to 10% will fail to allow such a leeway and, in future, the Courts may not be quick to dismiss claims brought by sponsors, especially given that the refusal rate now includes refusals on genuineness grounds. The Home Office and the Minister should therefore think carefully before lowering the HTS refusal rate to 10%.
Action which Tier 4 sponsors must now take
- All sponsors must review their HTS stats immediately and continue to keep them under review.
- Those sponsors whose HTS refusal rate is 10% or above should seek legal advice immediately. If the refusal rate is lowered, it may take immediate effect; therefore, sponsors, whose HTS renewals are due soon, are likely to get caught out and may not have enough resources or time to lower their refusal rate.
Additionally, sponsors should note that the Home Office considers high refusal rates to be a sign of poor recruitment practices, and we have seen action taken against sponsors on compliance grounds where refusal rates have been high. In reality, high refusal rates may be linked to a number of factors, for example, recruitment from a particular part of the world, the use of a new agent, the introduction of a new course, etc. Such refusals could be limited to a particular cohort of students, but it could still result in action taken against the sponsor.
Sponsors with high refusal rates or a sudden spike in refusals need to take the following action:
- Review their recruitment practices, in particular those from countries where refusal rates are high.
- Review their agent agreements and agent arrangements from those countries where refusal rates are high.
- Consider what further training should be provided to agents and recruitment staff.
- Ensure that matters, which are within the control of the sponsor, e.g. the assigning of CASs, is carried out correctly to minimise visa refusals.
In terms of visa refusals:
- Sponsors should ensure that their student terms and conditions, along with information they provide to students, requires students to keep them informed of the progress of their visa applications.
- Appropriate staff within the institution should review each visa refusal in a timely manner and if necessary refer the students to seek independent legal advice. We are still seeing instances where sponsors simply issue another CAS. The issuing of a second CAS should only be carried out in limited circumstances.
Independent schools, with a minimum of 51% of their students aged 17 and under, are only assessed against the mandatory requirements of HTS. Furthermore, independent schools tend to be small users of Tier 4. Therefore, if the refusal rate is lowered to 10%, it is likely to impact them.
At a recent seminar to members of the Boarding Schools Association, representatives of UK Visas & Immigration assured members that they are considered "very low risk". They were also assured that, as they tend to be small users, this will be taken into account when their HTS applications are being assessed. Whether this will be put into practice following the introduction of the change remains to be seen.
In the meantime, independent schools should also be checking their refusal rates and taking appropriate measures to ensure that this remains below 10%.
We have also seen an increase in the number of sponsor visits and an increase in the number of sponsor suspensions. It is clear that lowering the HTS refusal rate and increasing the compliance action against Tier 4 sponsors is the Government's way of slashing the number of Tier 4 sponsors in an attempt to bring down the net migration figures. Unfortunately, as the Government introduces further changes to rules and guidance which affect Tier 4 sponsors, education providers will need to revisit their compliance processes and ensure that they remain robust. This may mean more investment to ensure that there is less risk to their licences. Compliance is key, and those sponsors who have the appropriate systems in place and are complying with the guidance should consider further action if the Home Office has refused their HTS renewals or suspended their licences.
The Penningtons Manches immigration team sits within the firm's education sector; as a result, we are in the unique position of being able to offer our clients advice and training on compliance, recruitment practices, maintaining their sponsor licences, HTS (including proposals for HTS+), and drafting terms and conditions in respect of discrimination law and data protection. We also frequently and directly liaise with Home Office officials, and we can thus offer clients tailored litigation advice.