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Immigration update: Compliance issues for HEIs

VWV's Judith Hockin summarises some of the common immigration issues faced by HEIs

Posted by Hannah Oakman | January 28, 2016 | Finance, legal, HR

In a move that could have significant implications for universities, in November 2015 the Chancellor, George Osborne, indicated in his Autumn Statement that foreign students will no longer be included in official migration figures because those wishing to study in the UK are not “permanent” migrants. 

The government’s target to reduce net migration to below 100,000 has to date included not only those who wish to work in the UK but also those who wish to study here under Tier 4. Business groups and those within the education sector have for some time strongly advocated that foreign students should be excluded from this target and the Chancellor’s announcement represents a change in policy, not just to exclude students from this target but to encourage more foreign students to study in the UK with a target for increasing student migration by 55,000 by 2020, which will be worth £1bn.

As at September 2015 there were 41,466 Tier 4 sponsors on the sponsorship register, compared with 27,405 sponsors for Tier 2 (skilled workers). In the education sector, visa applications for approved study have been steadily increasing, from 156,628 in 2012 to 168,565 in 2014. Excluding the student numbers from the cap will significantly improve the government’s figures but for universities it will hopefully mean that an increasing number of overseas students will be attracted to the UK to study and the increased revenue that this will bring should also allow home students to benefit from updated facilities.

In the education sector, visa applications for approved study have been steadily increasing, from 156,628 in 2012 to 168,565 in 2014

The Chancellor also announced that tougher language tests and savings requirements would not apply to student visa applicants. The current requirement is for students to show that they have £1,015 per month to cover living costs (£1,265 per month in London) for the majority of their period of study. 

The Treasury has also announced that dependent relatives of postgraduate students will have the right to work in the UK. One of the major compliance issues for universities is the requirement that during term time, Tier 4 students can only work for 20 hours per week, although they can work full-time during vacation periods. This can be particularly difficult to monitor with PhD students, where it is not always clear whether their study is confined to term time or extends into vacation periods.  The safest policy is usually to say that for PhD students their period of study is continuous rather than being confined to term time, so they can only work for up to 20 hours per week.

Another common issue is where a university employs a PhD student as a part-time lecturer in his/her specialised field of study, but the student also works elsewhere in the university on a part-time basis, for example doing bar work, or perhaps has a part time job outside the university. Care needs to be taken to ensure that the 20-hour limit is not exceeded. Getting it wrong and allowing a student to work beyond his/her permitted hours, risks a suspension, or even revocation, of the university’s Tier 2 sponsor licence and a possible civil penalty of up to £20,000. 

If a university’s Tier 2 sponsor licence is suspended or revoked, this will result in any other sponsor licences, including under Tier 4, being suspended or revoked. Whilst a university may not employ a substantial number of people under Tier 2, suspension of a Tier 4 licence would mean that it could not sponsor any new student applications and revocation would result in it being unable to continue sponsoring its existing foreign students.  In such circumstances, the university would be unable to re-apply for a Tier 2 or Tier 4 sponsor licence for at least two years which could have very significant financial implications.

Attendance monitoring can be another problem for universities. One of the legal requirements of a Tier 4 sponsor licence is to demonstrate academic engagement. A balance needs to be struck between the need to have a  robust system to meet the legal requirements, but creating the minimum amount of additional work by building on existing processes for monitoring. 

In order to maximise their success rates universities should ensure that they have robust recruitment processes, that students are able to and intend to follow their chosen courses and that  potential students have sufficient funds to meet the maintenance requirements

The ‘Highly Trusted Sponsor’ has now been replaced with a ‘Basic Compliance Assessment’ which a university has to pass every 12 months.The criteria remain unchanged: a refusal rate of less than 10%, an enrolment rate of at least 90% and a course completion rate of at least 85%.

In order to maximise their success rates universities should ensure that they have robust recruitment processes, that students are able to and intend to follow their chosen courses and that  potential students have sufficient funds to meet the maintenance requirements.  

The message from the UK Visas & Immigration is that the UK continues to welcome the brightest and best students to study here but that it will also continue to tackle abuse of the student visa system. The UKVI also intends to have tighter control of the sponsor register and more stringent checks, including credibility checks. 

Universities may find that some of their prospective students have to attend credibility interviews. In preparation for such interviews they will want to ensure that the students are able to answer questions about their proposed course and about the university and that they are suitable to study the proposed courses. 

There is no cap on the number of Tier 4 students HEIs can recruit. The UKVI’s view is that this ability to recruit comes with the responsibility of being fully compliant with current guidance, which means that a university has to get it right first time and every time. There is no room for mistakes and the consequences of getting it wrong cannot just be significant in financial terms but devastating in terms of a university’s reputation. 

Judith Hockin is an associate at leading education law firm Veale Wasbrough Vizards. Judith can be contacted on 0117 314 5302 or at jhockin@vwv.co.uk 

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