Last month, on 12 November 2015, the Home Office issued new Tier 4 Sponsor Guidance (version 11/2015) (“the Guidance”) to be used for all Tier 4 applications made on or after 12 November 2015. We have highlighted below some of the key changes that have taken place recently, of which all sponsors should be aware.
Revocation in the last 2 years
Wording has been clarified in the Guidance to confirm that a Tier 4 licence application will be refused in circumstances where a sponsor has previously held a sponsor licence under Tiers 2, 4 or 5 and that licence was revoked or surrendered during a compliance investigation or compliance action, at any point in the two years prior to the date of the sponsor’s new Tier 4 licence application.
This puts increasing pressure on sponsors to ensure as far as possible that they do not put their licence at risk and do all that they can to remain fully compliant with the Guidance, given that the repercussions are more severe than ever. The inability to obtain a new licence for a period of 2 years if the licence is revoked/surrendered could have significant consequences for an institution including reputational damage and a genuine concern as to whether the institution could still continue to operate without international students.
Going forward, institutions should ensure that their sponsor licence is split in to two separate licences, where they have a Tier 4 licence and a Tier 2 or 5 licence. The Guidance makes it clear that where a sponsor’s Tier 4 licence is revoked, and the licence is a joint licence covering other Tiers, the revocation will also apply in relation to those Tiers.
The Guidance now states that any holiday/vacation periods, including those between academic years, should be reasonable and broadly consistent with those at publicly funded institutions. According to the Guidance, disproportionately long vacations may be considered immigration abuse.
This is aimed at private providers who must ensure that their holiday periods are not unduly long or it may lead to an assumption that there has been abuse of the system.
This area has been subject to a number of changes in recent months resulting in tighter rules for sponsors. As you know, the general rule is that in order to demonstrate academic progression, Tier 4 students must study a course which is ordinarily at a higher level than the previous course studied under Tier 4 (General) or ‘Student’ leave. There is however an exception when a new course at the same level may be considered to represent academic prrogression. This applies to students studying at a UK recognised body or body in receipt of public funding as a HEI, if the sponsor is able to confirm that:
- the new course is connected to, part of the same subject group as, or involves deeper specialisation of the previous course for which Tier 4 leave was granted; or
- the previous course and the new course together support a student’s genuine career aspirations.
An example taken from the Guidance makes it clear that a student is unlikely to meet the academic progression rule where he or she has withdrawn from a History degree (NQF 6) after the first year, and wishes to begin a new degree in English (NQF 6), as neither of the above conditions would be satisfied. FE colleges and private providers are no longer able to sponsor students who wish to study a course at the same level as their previous course.
Previously, in exceptional circumstances, studying a new course at a lower level could constitute academic progession, however, this is no longer the case.
Where a student has failed to successfully complete a previous course for which they were granted Tier 4 leave, with the effect that they have not achieved the qualification for which they were studying, they will not demonstrate academic progresssion and they will have to return home and apply from overseas if they wish to make a fresh Tier 4 application to study a new course. In respect of students who, part way through their current studies, wish to switch course, they are likely to need to go home to make a fresh application unless they are studying at a HEI and they can show that academic progression has been met in the wider sense (as set out above).
Consequently, our advice to sponsors who have a current practice of allowing students to change course and then extend at the end of their current visa, should assess the position now and make any changes as necessary.
The Guidance helpfully points out that in respect of students studying A-Levels, if they achieve a qualification in at least one of the subjects they have been studying, they will be deemed to have completed their course for the purposes of academic progression. That said, any new CAS should only be issued if the sponsor is confident that the student has the necessary intention and ability to complete the next course for which a CAS has been requested.
Time studying below degree level
This has now changed from 3 years to 2 years which is a significant change for sponsors who offer courses at this level.
Calculating periods of leave for time limit purposes
The time limit for calculating time spent in the UK now includes the full length of the leave as stated on the visa, as opposed to the course duration. UKVI will look from the date leave would begin (where the application is for entry clearance) or the date the current period of leave began (where the application is for leave to remain), until the day leave would expire, if granted.
UKVI hade made it clear that they will refuse an application where the length of the course applied for would lead to the student having spent more than the maximum period permitted under the Guidance, unless the application is to study a new course or complete a current course within 11 months of the time limit being reached AND either 1), 2) or 3) below applies:
1) The student is subject to the two-year limit for studying below degree level, has never studied as a Tier 4 (General) migrant in the UK before, and is applying for leave to study a two-year course.
2) The student is applying to study a course being taught by a HEI which is also sponsoring the student, and the strict application of the five-year time limit would prevent them from completing a fifth academic year at degree level or above.
3) The student is applying to study a course being taught by a HEI which is also sponsoring the student, is subject to the six-year limit for studying a four-year undergraduate degree followed by other courses at degree-level or above, and the application of the six-year time limit would prevent them from completing a sixth academic year at degree level and above. The Guidance provides a non-exhaustive list of examples where the above circumstances apply at pages 37 and 38 of Document 2.
There is a transitional arrangement in place whereby UKVI will consider applications made using CAS assigned for study at degree level or above on or before 9 August 2015 in accordance with the rules and guidance in place on 2 August 2015.
Additional periods of leave
In addition to the period of leave given to students to carry out their course of study, leave to remain will also be granted for a set period of time before and after the course as follows:
- Course of 12 months’ duration or more – 4 months following end of course;
- Course of 6 months’ duration or more but less than 12 months – 2 months following end of course
- Pre-sessional course under 6 months – 1 month following end of course
- Other courses under 6 months – 7 days following end of course
- Postgraduate doctor or dentist – 1 month following end of course
In most situations above, the student would be granted one month’s leave before the course starts, or 7 days before the intended date of travel, whichever is later.
Applying to extend permission in the UK
Since 12 November 2015, only Tier 4 (General) students who have, or who have last, been sponsored by one of the following can apply to remain in the UK as a Tier 4 (General) student:
- a UK recognised body or body in receipt of public funding as a HEI; or
- an overseas HEI if you are undertaking a short-term study-abroad programme in the UK; or
- an embedded college.
Tier 4 (General) students sponsored by any other type of institution (including FE colleges) who wish to continue studying in the UK under Tier 4 (General) must return to their home country in order to make a new entry clearance application.
Tier 4 (Child)
The rules have been clarified to specify that only independent schools can sponsor Tier 4 (Child) students under this route.
For further information
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