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Education HR e-briefing: Immigration update

    • Education - Briefings

    30-10-2013

    Recent developments

    The Home Office introduced new Tier 4 sponsor guidance, version 10/13 (“the Guidance”) on 1 October 2013. A number of changes have been made to the previous Tier4 guidance, the most important of which are detailed below.  

    Tier 4 credibility interviews and refusal rates

     

    You may recall that we mentioned this in our previous briefing. An applicant may be asked to undertake an interview, either in person or on the telephone, conducted by the Home Office, in order to assess whether the students genuine intention is to come to study in the UK. If the Home Office is not satisfied that the applicant is a genuine student, the application will be refused.

     

    The significant change here is that from 1 November 2013 these refusals will count towards HTS refusal rates, which as you know must be less than 20% overall. It is therefore vital that Tier 4 sponsor licence holders make suitable checks and ensure the students they wish to accept have shown a genuine desire to study at their particular institution.   

     

    Assessing valid leave to remain for migrant students  

     

    It is now specifically mentioned in the Guidance that Tier 4 sponsors are expected to make appropriate checks to ensure that migrants have valid permission to live and stay in the UK. This had not been stated in the guidance previously although the expectation was that sponsors should have made these checks beforehand. This reflects the principles on which sponsorship is based:

     

    i) those who benefit most directly from migration help to prevent the system being abused; and

    ii) those applying to come to the UK to work or study are eligible to do so and a reputable employer or education provider genuinely wishes to take them on.

     

    The rules on revoking a licence have also been changed to give the Home Office a specific power to take enforcement action against a sponsor if they find that they have any students studying at their institution who do not have valid leave to remain.

     

    Takovers, Mergers and De-Mergers

     

    A new paragraph 644 has been added to the Guidance which states:

     

    If there is a change in ownership of your organisation or business, for example if it is sold as a going concern or a share sale results in the majority number of shares being transferred to a new owner, your sponsor licence will be revoked. The new owners of the business must then apply for a new sponsor licence (unless they already have one) if they wish to continue teaching any migrants that you were sponsoring before the change of ownership”. 

     

    For any corporate transactions involving a ‘change in ownership’, the effect will be that existing sponsor licences held by the company being sold will be revoked and the new buyer Company will be expected to obtain a new sponsor licence (if it does not already have one). The policy behind this rule is to essentially prevent companies from  buying HTS licences when they are expected to earn this status by demonstrating a high level of compliance with their sponsor obligations. This may cause difficulties particularly where the parties involved have complex corporate structures making it difficult to determine whether a change in ownership has in fact occurred.

     

    Branch arrangements

     

    Branch arrangements have also changed under the Guidance by making the branch arrangements narrower. It is now no longer possible to satisfy the branch arrangements by demonstrating common ownership or control where:

     

    • one entity is related to the other entity as both entities are party to a joint venture 

      agreement which has created a new, separate legal entity; or

     

    • one entity is related to the other entity in that one entity is party to a joint venture 

      agreement and the other entity is the entity formed by that joint venture agreement.

     

    This change will affect a number of education providers that entered into joint venture arrangements under the previous rules. If you believe your or someone you have a contract with is affected by this change please contact us.

     

    Partner institutions

     

    A Tier 4 institution can only issue a CAS to sponsor a student to study at a partner institution where that partner is listed on their licence.

     

    Where the partner institution does not hold a Tier 4 sponsor licence and provides only pre-sessional courses on behalf of the Tier 4 sponsor, the following applies:

     

    • the pre-sessional courses must meet the definition at paragraph 434 of the Guidance 

     (see comments below), last no longer than 3 months, and end no more than 1 month  

      before the main course of study; and

    •students must be progressing to a main degree course at the Tier 4 sponsor for which 

      they have an unconditional offer; and

    • the Tier 4 sponsor must assign the single CAS for the pre-sessional course and the 

      main course and undertake sponsorship duties for the student; and

    • the partner institution may not offer any other type of course on behalf of the Tier 4 

      sponsor.

     

    It still remains that where there is a contractual agreement between the education providers to work in partnership to deliver education to students, and provided both partners hold their own separate HTS sponsor licence and have educational oversight from an appropriate body, both partners can offer any course that meets Tier 4 requirements.

     

    Pre-sessional courses

     

    The definition has changed in the new Guidance and is now “a course that prepares a student for, and directly precedes, their intended full-time course of study in the UK and enables them to acquire the ancillary skills or knowledge necessary to adjust to study in the UK. This will usually be supplementary English Language training or some instruction in the British education system. Courses which are designed to give a student fundamental training in the subject area of the main course as a stepping stone to it – e.g. a foundation degree – or courses which form an integral part of the main course of study or replace part of it – but which are administered separately – are not considered to be pre-sessional courses”.

     

    Any pre-sessional courses being offered should be considered to ensure they comply with the above definition.   

     

    Further changes

    The Guidance has implemented other changes including:

    • acceptable sponsors for postgraduate dentists on a foundation programme
    • relevant processes and inspection outcomes from QAA
    • new Premium Service to those sponsors rated HTS
    • clarity as to when students can work during and after study
    • removed all references to B-rated sponsors
    • clarity as to when single CASs can cover pre-sessional courses

    For more information contact

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