New Tier 4 guidance for sponsors brings sweeping changes

Posted: 01/10/2013

The Home Office has published new Tier 4 Sponsor Guidance, which takes effect from 1 October 2013. The new guidance has brought forth several changes, in particular, the following:

Genuineness Test

In July 2012, the Home Office introduced the 'genuineness test' for Tier 4 (General) Students. Students applying to enter the UK under Tier 4 could be interviewed, and, if the entry clearance officer determined that they were not genuine, their applications would be refused under paragraph 245ZV(k) of the Immigration Rules. As a transitional measure, the Home Office did not include students refused entry on grounds of genuineness when calculating sponsors' Highly Trusted Sponsor (HTS) refusal rates.

The new October guidance ends this transitional arrangement. Any refusals from 1 November 2013 on grounds of genuineness (now including those refused under paragraph 245ZX(o) of the Immigration Rules) would be included in calculating a sponsor's HTS refusal rate.

Sponsor Duties

The new October guidance makes it an explicit requirement on sponsors to carry out checks on whether the individual whom they wish to sponsor has valid permission to be in the UK.

Sites and Branches

The new guidance confirms that, for Tier 4 purposes, a 'site', which is not a legal entity, is not a branch. For example, a university, which has campuses in a number of different places, has a number of sites, but these sites will not be considered branches unless they are separate legal entities. Likewise, a language school, which has two buildings under its control in different places, has two sites, but it does not necessarily have two branches. Any changes in operated sites must be notified to the Home Office and will automatically be included in the sponsor’s licence. A sponsor may apply for separate licences for each site, but it is not necessary to do so.

Joint ventures have been removed, for Tier 4 purposes, from the new guidance.

HTS Status

Where a sponsor has not assigned any Certificates of Acceptance for Studies (CAS) within the 12 months preceding the application date, but it continues to meet the other core measurable requirements, it will automatically retain its HTS status.

Penningtons has been instrumental in bringing about this change so that it reflects the business needs of our key clients.

Issuing a Single CAS for Pre-sessional and Main Degree Course

The new guidance confirms that, where a Higher Education Institution (HEI) is assigning a single CAS to a student to cover a pre-sessional English language and the main course of study, the following conditions will need to be met:

• the student will need to have demonstrated his or her ability to speak English at level B1 by providing a SELT; and
• the sponsor needs to be satisfied that, upon completion of the pre-sessional English language course, the student will have reached level B2 and will proceed to the main degree course.

If the second condition is not met, then the CAS must be withdrawn.

HTS: Non-Transferable

The new guidance now states that, where an education provider undergoes a change of ownership, the new owner will need to apply for a new sponsor licence, unless they already have one. Otherwise, the sponsor licence will be revoked.

This requirement is bound to cause controversy as it will impact the value of a business, which is being sold and which would not be able to retain its HTS status. It also means that an education provider would need to resubmit an application for a sponsor licence with the same details already provided to the Home Office, and it would then have to wait 12 months following grant of the licence before being able to apply for HTS by relying on data for students whom it has already been sponsoring.

Pre-sessional courses and partner institutions

The Home Office has updated the partner institutions section and added further clarification to where a Tier 4 sponsor may name another institution on their licence.

Paragraph 434 of the latest version of the Sponsor Guidance defines a pre-sessional course as:

“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 – eg 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”.

Paragraph 127 of the latest version of the guidance states that;

“A Tier 4 sponsor may name another education provider as a partner institution on its sponsor licence in the following circumstances;

• where there is a contractual agreement between the education providers to work in a partnership to deliver education to students. In this case both parties must hold HTS status and have Educational Oversight. Here both parties can offer any courses that meet the Tier 4 requirements.
• where a partner institution does not hold a Tier 4 licence and provides pre-sessional courses on behalf of the Tier 4 sponsor. The latest version of the guidance states “the pre-sessional course must meet the definition of a pre-sessional course (paragraph 434), last no longer than three months, and end no more than one month before the main course of study (see Sponsor Guidance for further criteria)".  

Both the new definition and the three month restriction may affect a number of education providers that are already offering pre-sessional courses. Those effected should seek legal advice immediately.

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