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Education e-briefing - New Tier 4 Sponsor Guidance Issued

  • United Kingdom
  • Education - Briefings

16-04-2018

Background

The creation of the Office for Students (OfS) as the new regulator of English HE providers has a number of ramifications for the sector, including for institutions which sponsor international students under Tier 4.

On 28 February 2018, the OfS issued the new regulatory framework for HE providers entitled Securing student success: Regulatory framework for higher education in England (the Framework).

Only providers that are (or intend to become) English higher education providers, as defined in section 83 of the Higher Education and Research Act 2017, can register with the OfS, provided they meet the registration conditions. There are three factors to consider when determining whether a provider is an English higher education provider:

• the provision of higher education - defined as delivering a course of any description set out in Schedule 6 of the Education Reform Act 1988;

• being an English provider - over 50% of the provider's higher education activities are carried out in England; and

• being an institution providing higher education.

Any English HE provider which wants to remain or become a Tier 4 sponsor will have to register with the OfS and the OfS will become the designated Educational Oversight body for such providers. The register opened on 3 April 2018 and providers will need to be registered by 31 August 2019. There are many other reasons why HE providers will need to be registered with OfS (apart from Tier 4) including if they wish to access public grant funding and/or student support funding.

In the Framework the OfS stated that, although The Home Office remains responsible for setting the eligibility and suitability criteria for a Tier 4 licence, and decisions on Tier 4 licences will remain solely with the Home Secretary, the ability of a registered provider to sponsor students under Tier 4 would be conditional on remaining on the OfS Register. The new Tier 4 sponsor guidance which has just been published provides some clarity on the effect of the establishment of the OfS on the Tier 4 sponsorship system.

See our briefing of 28 February 2018 for more details in relation to the Framework.

Tier 4 Sponsor guidance

Until this month there were 3 parts to the guidance for Tier 4 sponsors - document 1: applying for a Tier 4 licence; document 2: sponsorship duties and document 3: Tier 4 Compliance. These documents have not been altered as a result of publication of the updated guidance. However, a completely new document 4 has now been issued titled Higher Education regulatory reform.

Amongst the key points in the new document 4, are:

1. English higher education providers must register with the OfS to provide Tier 4 Educational Oversight. This includes:

• Higher education institutions;

• Publicly funded colleges providing higher education; and

• Private providers which provide higher education, including alternative providers; embedded colleges offering pathway courses, integrated programmes or set up as a joint venture; and private providers which have entered into franchise or validation arrangements under the ‘sites and teaching partnerships’ section in document 1 guidance.

2. Tier 4 sponsors which do not meet the definition of English HE Providers are not affected by these changes and must continue to follow the policies set out in documents 1 to 3 of the guidance. This includes the fact that they must continue to gain and maintain Educational Oversight from the relevant body specified in document 1 of the Tier 4 guidance. Students sponsored by such providers will not be affected by the higher education regulatory reforms and will continue have the same leave conditions, such as work rights, as at present.

3. Current Tier 4 sponsors which are English HE Providers must gain OfS registration before 1 August 2019 to maintain their Educational Oversight. Any such providers which fail to apply to the OfS, or do not gain the required OfS registration before 1 August 2019, will no longer have Educational Oversight from that date. This means they will lose the ability to sponsor new students and their CAS allocation will be set to zero. Where applicable, these institutions will be made a Legacy sponsor and they will not be able to sponsor new students under Tier 4 unless and until they gain OfS registration.

4. Current Tier 4 sponsors, which are HE Providers and whose Educational Oversight requires renewal before 1 August 2019, may transition to Educational Oversight provided by OfS on any date prior to 1 August 2019 (the date that the new Framework comes fully into force). All Tier 4 sponsors must however maintain Educational Oversight throughout the period of their licence, so Tier 4 sponsors which are English HE Providers will need to ensure that there is no gap in their Educational Oversight during the transitional period.

This means that such sponsors must be registered with the OfS before 1 August 2019, since their current Educational Oversight will no longer be available after that date. They must therefore apply to the OfS by 15 May 2019 in order to receive a registration decision by 1 August 2019.

5. Tier 4 sponsors which are registered will gain the full privileges of Tier 4 from the date on which they establish a four-year track record of compliance – in essence passing the Basic Compliance Assessment for four consecutive years. Current Tier 4 sponsors which already have access to the full Tier 4 privileges prior to the creation of the OfS will retain them, provided they continue to have a Tier 4 licence.

A Tier 4 sponsor which has access to the full privileges of Tier 4 is one whose Tier 4 students may be granted conditions of leave which may, depending on the level and length of course being undertaken, include permission to work for a certain number of hours per week; the ability to be granted further Tier 4 leave from within the UK and the ability to bring dependants to the UK. Institutions which are eligible to offer the full privileges of Tier 4 will be able to self-assess the English language ability of their students. Full details of the privileges will be incorporated into a future set of immigration rules changes. Whilst HEIs have previously enjoyed these privileges, this will undoubtedly be a good news for private providers and publicly funded colleges which provide higher education.

Conclusion

Universities and other institutions which provide HE will already be familiar with the requirement to register with the OfS and the conditions that will need to be satisfied. Whilst the Framework issued on 28 February 2018 did contain some information about Tier 4 it is only with the publication of the updated Tier 4 sponsor guidance that more detail has been provided on how the establishment of the OfS will impact on Tier 4 sponsorship and the timeframes involved.

Although the underlying requirements of the sponsorship regime remain unchanged, English HE providers should not loose sight of the fact that in order to remain a Tier 4 sponsor they will not only have to comply with the immigration rules and guidance but also satisfy (and continue to meet) the conditions of registration with the OfS.

Although current Tier 4 sponsors who come within scope must gain registration before 1 August 2019 in order to maintain their Educational Oversight, those whose Educational Oversight requires renewal between now and 1 August 2019 should apply as soon as possible to ensure that they receive a registration decision in time. It is also worth noting that the Framework in any event encourages providers who have courses with an early student recruitment cycle for 2019-20 (i.e. medicine, dentistry, veterinary courses or conservatoire provision) to apply to join the register by 30 April 2018, and those with a standard student recruitment cycle by 23 May 2018.

For more information on the new guidance or any Tier 4 queries please contact our specialist education immigration team

For more information contact

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