Trials and tribulations

Courting international students is vital to HE’s welfare, but stricter visa rules are deterring these profitable visitors

Nor are these the sector’s only legal woes. As the costs of education increase, students may become more inclined to litigate, if institutions cannot meet their obligations.

Damon Jones mulls the verdict for HE

 According to the government, Britain is ‘open for business’–although international students may find that proclamation qualifie with some rather prohibitive caveats.

Since April 2012, significant amendments have been made to the former student visa regime, curtailing a number of former privileges. Changes include the removal of the right to remain and work in the UK for two years after graduation, a five-year maximum stay, and a new requirement for student sponsors (HEIs) to hold Highly Trusted Status. Controversially, overseas students are also included in net migration figures – which some critics believe encourages border authorities to turn them away, in order to meet immigration targets. Paradoxically, in 2013, the government released a report, International Education: Global Growth and Prosperity, which stated its aim to boost international enrolment by 15–20%, (around 90,000 students), over the next five years.

Although the authorities maintain there is no threat to ‘genuine students’, and that its reforms were principally designed to clamp down on bogus ‘language schools’ in the college sector, many consider the government’s educational and immigration targets fundamentally incompatible. Since language schools and colleges often act as pathways into HE, a 46% drop in visas for these types of students in 2013 may also, commentators say, have major ramifications for universities. Something certainly seems amiss at postgraduate level – where numbers of Indian enrolments are down by 51%, and their Pakistani counterparts by a similar 49%. The statistics seem damning enough, but whether these truly evidence a global reaction to visa changes remains unclear. Indeed, bucking these trends, numbers of Chinese students in the UK – boosted by the strength of the yuan – have continued to increase since 2008–2009. 

HEFCE also recorded an encouraging 9% increase in non EU applicants in 2013–14 over the previous year. But, adding a further complexity to understanding students’ movements, numbers of full-time EU graduates also decreased by 25% during this period – suggesting that the enforcement of British borders may not be the only turn-off marring HE. Several factors are likely to inform the choices of potential overseas applicants, including rising tuition fees, exchange rates, international competition, the establishment of UK satellites overseas, and the rise of distance learning. Revisions to the visa process enacted in late 2013 also made some concessions for students – making it easier for them to accept corporate internships after graduating, and more straightforward for those using graduate entrepreneur visas to switch to the ‘skilled workers’ equivalent. So just how significant is the new visa regime?

In a recent speech, immigration minister James Brokenshire robustly denied that the visa system needed to be fixed, and claimed that fears the net immigration policy was harming HE were a “ludicrous fiction”. Conversely, Duncan Findlater, Director of Client and External Relations at Hobsons, a multinational education company which, amongst its services, offers tools to streamline enrolment services and maximise the conversion of applicants, argues that one damaging impact of the current visa policy is the way in which it could be negatively perceived. “Aside from education quality, which naturally comes top, the perception of how ‘welcoming’ a country has become is the most important factor in choosing a place to study for international students,” he contends. In an international student survey carried out by Hobsons, which obtained feedback from 18,393 respondents in 195 countries, 73% of those questioned claimed that the ease of obtaining a visa would affect their choice of foreign HE destination. “The potential impact of overseas students’ perceptions of the current UK Visa process is clear,” Findlater says.

Declining numbers of international enrolments recorded at undergraduate level “add weight for the argument that foreign students should be taken out of net migration targets, and for the visa process to potentially be streamlined,” he suggests. These moves could help counter detrimental impressions, and ensure the UK’s success. “Our universities are competing in an increasingly globalised market,” he warns, in which Canada and others have made their immigration systems more attractive to international students. “They do not count students in their net migration target, and their post-study visa rules are less onerous than in the UK,” observes Findlater.

Meanwhile, behind its bureaucratically fortified borders, for those lucky students finally admitted to campus, stakes have risen. Tuition fee hikes, and a culture which promotes education as a careerist or existential ‘investment’ may encourage a more combative response when anticipated educational outcomes fail to materialise. Indeed, since £9,000 tuition fees were introduced in 2012, student complaints have risen by 10% – to 20,000 per year. If these are not satisfactorily resolved, recourse to the courts may seem a just final resort to students, given their significant outlay and debt commitments. In this context, the roles of students as purchasers and universities as providers are placed into stark relief.

“The relationship between a student and the university they attend has for some time been recognised as being founded in contract, an arrangement that involves mutual responsibilities and obligations,” explains Tabitha Cave, a Partner at Veale Wasbrough Vizards (VWV), a specialist law firm which regularly advises the HE sector. Although this is not specified in any one document, she says, “It has also been acknowledged that the contractual relationship is one between a consumer and a business, and therefore subject to legislation designed to protect consumer rights, notably the Unfair Contract Terms Act 1977, the Unfair Terms in Consumer Contract Regulations 1999 and the Consumer Protection from Unfair Trading Regulations 2008.”

Alleged breaches of this legislation form the basis for many court cases against universities, which may also carry a reputational risk if grievances are aired via social media. The premise for some of these recent legal actions is intriguingly diverse – and hints at the responsibilities students believe their universities should fulfil. In February 2014, 60 international students attempted to sue Glyndwr University after problems with their visa sponsorships. Paul Crawford, a former Newcastle University student, launched a failed case against his institution in 2013, after he flunked final year exams. Contemporaneously, a would-be Oxford student attempted to sue the illustrious institution for selecting applicants on the basis of wealth.

VWV consider the particular areas in which universities could be vulnerable to legal action to include disability discrimination, accommodation issues, where a university code of conduct has been breached, and the breach of contract or misrepresentation in course delivery, an issue recently reported in the Guardian on 22 April.

Several such incidents were reported by the liberal organ, including single honours degrees changing to combined courses, abrupt course closures,
and alterations to modules which departed from what had been
promised by institutions at entry stage. “It is established case law that a university can adjust courses, but this is only likely to be reasonable in the context of a consumer-business relationship provided that they make appropriate alternative provision to enable students to complete their education,” explains Kris Robbetts,
a Senior Associate from VWV. If students regard degrees as products which
their fees ‘pay for’, then pressure grows on universities to offer teaching services which meet the required standard, and conform with the prospectus descriptions which
‘sold’ them.

Significant structural flaws in the practices of UK universities were exposed by a recent report from the Office of Fair Trading (OFT), which found that, across the sector, much work remained to be done in clarifying the legal rights of students as consumers, and their institutions’ obligations towards them. These included “significant gaps” in prospectuses, qualification levels of lecturers, and student employability once learners graduate. The organisation also expressed interest in the competitiveness of charges across the sector, which could potentially be scrutinised in a full ‘compliance review’ by its successor body, the CMA. Although it found no evidence of ‘fee fixing’, the text advised that fees should not be increased part way through a qualification. ‘The widely reported decision of the OIA to uphold a complaint regarding mid course fee increases, and to award compensation, is unlikely to deter legal action, or use of an institution’s complaints handling system,’ cautions VWV’s Tabitha Cave.

Fortunately, some precedents are in place to offer protection for universities. The case of Clark v University of Lincolnshire and Humberside [2000] “is the principal authority for the proposition that the exercise of academic judgment was not a matter capable of adjudication by the court,” says VWV’s Robbetts, which makes it hard for students to challenge decisions made on the basis of their results, such as course terminations on academic grounds.

However, other precedents place additional responsibilities on universities, including a 2011 case in which the Court of Appeal confirmed that it could not impose an obligation on the Office of the Independent Adjudicator (the body which handles student complaints) to rule on complaints of discrimination – thereby increasing universities’ liability.

“Recent OFT scrutiny revealed that many university practices are potentially out of step with the requirements of modern consumer law,” says Tabitha Cave.

“Whilst institutions are now taking steps to identify and record the mutual obligations that are essential for the successful delivery of educational services, the decision of the CMA to prioritise making the responsibilities of universities clearer suggests that there may be some way to go for some institutions.” The jury is out – for now.

Independent Education Live

Join our FREE digital event for independent schools

featuring five hours of live panel discussions and interviews with influential leaders