Latest changes to Tier 4 guidance and immigration rules come into operation

Posted: 29/04/2016

The latest changes to the Tier 4 guidance and immigration rules came into effect this month. Among other things, these are designed to further restrict Tier 4 students’ ability to extend their stay in the UK. 

Independent schools and educational oversight 

The Tier 4 guidance has been amended to state that independent schools only need to ‘meet’ ISI’s statutory inspection standard. The guidance previously stated that independent schools had to achieve an ‘excellent/good/sound’ rating. It should be noted that private providers still have to ‘meet/exceed expectations'. 

In a further change, independent schools will no longer have their CAS allocation reduced to zero for a ‘minor fault’ following an inspection from the relevant educational oversight body. This is welcome news for the independent schools sector. 

Embedded colleges offering pathway courses

The guidance has been amended to include the following: “If an embedded college offering pathway courses wishes to deliver both pathway courses and integrated programmes to Tier 4 students, students on integrated programmes must be sponsored by the relevant HEI. Students sponsored by the HEI must not be in the same class as those sponsored by the private provider or embedded college”. 

We are waiting for confirmation from UKVI on how it will review this in practice. 

In response to the numerous enquires received by UKVI on how private providers could be recognised as an embedded college under exceptional arrangements, the guidance now sets out the procedure to be followed by a private college. Click here to access the table found in 'The Tier 4 of the Points Based System: Guidance for Sponsor', document 1. 

Changes to sponsorship duties

• A duty has been placed on sponsors to treat Tier 4 students consistently with UK/EEA students where they have used deception to gain advantage in their studies. Although it is sometimes necessary to have different policies to enable Tier 4 students to comply with UKVI guidance – for example, on attendance - different policies that allow the Tier 4 sponsor to make judgement calls - for example, to protect its course completion rates - may be regarded as a breach of sponsor duties.
• For students studying courses which require an ATAS, where they change education provider and/or course details change, or the student’s course end date is postponed for a period of more than three calendar months, the student must apply for a new ATAS clearance certificate within 28 calendar days, regardless of when their leave expires.
• Tier 4 (General) students sponsored on a short-term study abroad programme in the UK as part of their degree at a USA HEI are now exempt from the Tier 4 English language requirements. 

Academic progression

Sponsors will be aware that the rules for academic progression were first introduced in July 2011 in an effort to stop ‘the serial student’. The rule provides that students must be academically progressing from their previous course of study. Since then there have been numerous amendments to this requirement. Prior to assigning a CAS, sponsors should be aware of the following for Tier 4 (General) students:

• Academic progression applies to in-county applications but still needs to be considered for those applying out of country as this will form part of the student's credibility assessment.
• Studying a lower level course will not be considered as meeting the in-country academic progression requirements (though there is an exception to this if the student wants to study a bachelor’s degree in medicine).
• Only students who are sponsored by a UK recognised body or publicly funded UK HEI will be able to study a new course/change course to one that is at the same level as their previous course.
• To satisfy academic progression, students must have successfully completed the course for which they were last granted Tier 4 leave or, if they have changed courses with the same sponsor, the course they changed to during their leave. If not, they will not be able to extend in-country. 

Sponsors should also:

• Consider all the student's previous UK study post 18 years old prior to assigning a CAS when determining academic progression, and
• Avoid the use of generic wording on the CAS to explain how a student studying a course at the same level meets academic progression, as each case needs to be considered individually and as an exception. 

In-country extension

As a reminder, only students previously sponsored by an HEI, overseas HEI, embedded college offering pathway courses or an independent school are able to extend their stay under Tier 4 (General) in-country. Sponsors therefore need to check the identity of the previous sponsor when assigning the CAS as the student may need to apply from overseas. 

For example, a student previously sponsored by an HEI to study an undergraduate degree and moving to a private provider to undertake a Master’s course may apply in-country but a student previously sponsored by a private provider to study an undergraduate degree and moving to a Master’s course with an HEI will need to return home and apply from overseas. 

Currently, students wishing to apply for an extension in-country to complete their course need to meet the academic progression rule but students who are extending to undertake a re-sit are exempt. It has been confirmed to us by UKVI that students who undertake a re-sit during their course and, as a result, need to extend their stay to complete said course can apply in-country to do so, relying on the re-sit exemption. This will need to be made extremely clear on the CAS to avoid a refusal.

The guidance has also extended the temporary arrangement for students starting a new course with their existing HEI sponsor (with Tier 4 sponsor status). This allows existing students to commence their new course without having submitted their extension application, provided they still have current leave and they apply within six weeks of their enrolment on the new course or before their leave expires. This is a temporary arrangement which applies to new courses beginning on or before 1 November 2016. The rationale why this remains a temporary arrangement is unclear. 

Changing courses with the same sponsor

Only students who are sponsored under Tier 4 (General) by a UK recognised body or publicly funded UK HEI and who are studying at degree level or above will be able to change course before completing their previous course providing that:

• the new course is at degree level or above and is not at a lower level than the original course
• the sponsor holds Tier 4 Sponsor status
• the new course can be completed within the period of the Tier 4 (General) student’s existing leave and
• the sponsor confirms that either (i) the course is related to the previous course or (ii) that the two courses combined support the applicant’s genuine career aspirations. 

Two and five year time limits

The new rules clarify that, when calculating the time limits, the UKVI will take into account the period of leave granted under Tier 4 (18 years and over only), and the level of course for which the leave was granted, rather than (if different) periods and courses actually studied. 

For example, if leave was granted to a Tier 4 (General) student to undertake a Bachelor’s degree course for three years but the student dropped out after two years, the full three years will count towards the time limit unless leave was curtailed.

Short-term students

It has been made clear that those coming under the short-term student route must be ‘genuine’ students and that their purpose for coming to the UK must be to study. We expect this to lead to an increase in refusals on subjective grounds. Sponsors should therefore make sure that they also assess the intention and ability of such students. 

Conditions of stay – business activity

As a reminder, sponsors are required to report students who breach their conditions of stay. The main reason for such reports has been students who work in breach either because they exceed their permitted hours or because they are working in self-employment. 

The UKVI has now clarified that students who engage in business activity defined as “working for a business in a capacity other than an employee in which they have a financial or other significant beneficial interest” are also included. The following are given as examples of business activity but this is not an exhaustive list:

• setting up a business as a sole trader or under a partnership arrangement and that the business is either trading or establishing a trading presence;
• being employed by a company in which the student holds shares of 10% or more (including where the shares are held in a trust for the student) or
• working for a company where they also hold a statutory role such as a director. 

Sponsors therefore need to be extra vigilant and scrutinise applications carefully - especially the student’s employment history in the UK. 

Material change in circumstances – educational oversight

Sponsors now need to notify their educational oversight body if their financial circumstances or management and governance arrangements have changed since the initial assessment was carried out. Such changes include, but are not restricted to, changes of ownership, changes of directors or beneficial interest, and changes in financial support provided by a parent company or other financial backer. 

In addition, where there is a takeover involving two existing Tier 4 sponsors with one being incorporated as a going concern, UKVI will consider whether new educational oversight is required on a case by case basis. In considering this, UKVI will take into account the sponsors’ respective track records, the circumstances of the takeover and changes to personnel. This could potentially affect the timeline on obtaining Tier 4 sponsor status if UKVI determines that new educational oversight is required. 

BCA calculations

The discretionary assessment has been expanded to include scenarios where fewer than 50 of the sponsor’s Tier 4 students were due to complete their course during the 12 month period being assessed. 

Tier 4 probationary sponsors who, at the BCA date, have either not issued any CAS, or where CAS has been issued but the Tier 4 students are yet to enrol may have their probationary period extended for another 12 months but only if UKVI believes that the sponsor will issue CAS in that period and if there are no other reasons to revoke the sponsor licence. 

Tier 4 sponsors who have not issued any CAS within the previous 12 months may still be allowed to pass the BCA assessment. UKVI will, however, consider other relevant factors including compliance under Tier 2 and Tier 5 and previous record of Tier 4 compliance before making the decision. Sponsors should be aware that other relevant factors could include high refusals under the short-term student visa category.

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