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Independent schools: beware of risking your licence and your reputation

Posted: 30/11/2017

Penningtons Manches has again seen an increase in compliance visits from UKVI to independent schools. We understand that the majority of these visits have resulted in compliance action being taken by UKVI.

Many independent schools are minor users of Tier 4 which only sponsor a small number of international students and therefore may not be as familiar as others are with all their sponsor obligations.

UKVI action, which may end up being a lengthy process, could lead to schools not only having to turn new students away, but also facing large financial losses and reputational damage both in the UK and in external markets.

The area which continues to result in the most compliance action against independent schools is failure to comply with reporting and notification obligations. Below we set out some of the areas where UKVI has taken action this year:

Failure to notify UKVI of changes to sponsor details

These include:

  • changes to authorising officer, key contact or level 1 user
  • changes to the school’s name or address
  • adding or removing sites where Tier 4 students are being taught
  • sale of all or part of the business
  • the school being subject to a civil penalty

Annual Basic Compliance Assessment (BCA)

Schools need to renew their BCA every 12 months. This is a separate date from the annual CAS renewal and the Tier 4 licence renewal (which is renewed every four years).

Educational Oversight

Following an inspection either by Ofsted or ISI, schools that have failed to maintain the required rating must notify UKVI within 20 working days of receiving their inspection report. Previously it was the responsibility of the relevant education body to notify UKVI.

Reporting on Tier 4 students

The UKVI puts the onus on the school to ensure that it notifies the UKVI via the SMS about certain events in relation to Tier 4 students. These include but are not limited to:

  • where a school has issued a CAS and the student has applied for a visa but this has been refused. While it would seem obvious that UKVI should be aware of the refusal, it still remains a duty of the school to report the visa refusal;
  • where a school has issued a CAS but the student or a parent notifies the school that they are unexpectedly delayed and will miss their latest expected enrolment date. If the school is happy with the new start date provided by the student or their parent, it must still report the delay on the SMS and provide the new start date;
  • where a school has issued a CAS, the student has successfully applied for a visa, which has been granted, but the student fails to enrol at the school. There may be a range of reasons why this may occur, especially where a child is concerned. The school must still report via the SMS where the student has failed to enrol as expected;
  • where a student has successfully obtained their Tier 4 visa, enrolled and started their course but then fails to progress, for example due to sickness or extended absences. The result of this is that that the school withdraws the student from their course. While a school will have many additional responsibilities which sit outside Tier 4, for example notifying the local authority or the police regarding the disappearance of Tier 4 children, it must also ensure that it continues to comply with its UKVI reporting obligations;
  • the student moves to another school part way through their course. Again, while it may seem obvious that UKVI should be made aware of where the student is studying via their new school, the requirement still remains on the current sponsor to report this to UKVI;
  • change in immigration status – where a student switches from a Tier 4 visa into another immigration category, eg obtains ILR or switches to a dependant visa. Whilst the school will still need to report any visa expiry dates, the student will no longer be sponsored under Tier 4 and notifying the UKVI via the SMS that the student has switched immigration category will bring to an end the school’s other Tier 4 reporting obligations for that student.

Care arrangements

This is the area where we have provided the most advice this year.

Schools which recruit a child under the age of 18 must ensure suitable care arrangements are in place for them in the UK. This must include arrangements for their:

  • travel;
  • reception when they arrive in the UK; and
  • care while in the UK.

In addition, all arrangements for a child’s care and accommodation in the UK must comply with the relevant UK legislation and regulations.

If a Tier 4 (Child) student is to be looked after in a private foster care setting, the school must give the local authority responsible for the area in which the child will live the following details:

  • the name of the foster carer; and
  • the address where the foster carer and the student will live.

This information must be provided as soon as the school becomes aware that the child has arrived in the UK or, if the private care arrangement begins when the child is already here, as soon as it becomes aware of the change.

Schools should take extra care where children move from being looked after by a parent or close family relative to being looked after by a private foster carer. Notification must be made to the local authority and to UKVI.

If the Tier 4 (Child) student is 16 or 17 years old and will be living independently, the school must submit a letter from the Tier 4 (Child) student’s parent or legal guardian confirming they consent to their child living independently in the UK.

If the Tier 4 (Child) student will be living with a resident British citizen, or other UK resident who is a close relative, or in a private foster care arrangement, the school will be required to submit evidence and details of the new care arrangements to UKVI.

As the welfare of children is paramount, failure to make the relevant notifications could lead to the immediate revocation of the Tier 4 licence.

These are just some of the issues we have observed while advising independent schools. For a full list of sponsor duties and reporting obligations, schools should familiarise themselves with the Tier 4 sponsor guidance and make sure that they keep themselves updated. We are aware that the guidance is often not easy to navigate and that schools have additional requirements and duties in relation to the welfare of children. These duties should however be considered alongside the duties imposed by UKVI.

Where a school has concerns about compliance or, for example, notices that the annual CAS renewal is taking longer than necessary, visa applications are being held up by UKVI or a compliance visit has resulted in the CAS allocation being reduced to zero, advice should be sought early to avoid further action being taken by UKVI. February/March is usually a key time for UKVI to carry out compliance visits. Where these result in action being taken, the issues may not be resolved for a number of months. By the time the UKVI concludes its investigations, the September recruitment period may have been impacted and parents may have chosen other schools for their children.

For further information, please contact Pat Saini.

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Penningtons Manches Cooper LLP

Penningtons Manches Cooper LLP is a limited liability partnership registered in England and Wales with registered number OC311575 and is authorised and regulated by the Solicitors Regulation Authority under number 419867.

Penningtons Manches Cooper LLP