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International students: staying onside

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The LexisPSL Immigration team look at the impact of changes to the regime governing Tier 4 (General) sponsors and review the case law around revocation action by the Home Office.
All Tier 4 (General) migrants must be sponsored by an educational institution registered by the Home Office as a Tier 4 (General) sponsor. The regime regulating Tier 4 (General) sponsors underwent a series of phased changes announced in March 2011 and completed at the end of 2013.

This article outlines some of the main changes to the sponsorship regime for Tier 4 (General) and the issues that arose from them, as well as Home Office responses to more recent issues of concern regarding Tier 4 (General) sponsors. 

For full details of the current sponsorship regime applicable to Tier 4 (General) sponsors, see the Home Office's Sponsor Guidance (SG) for Tier 4.

The Home Office has also published the following Modernised Guidance (MG) documents which provide information on how Home Office case workers assess Tier 4 sponsor eligibility and compliance:

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o    MG PBS sponsor licensing--applications
o    MG PBS sponsor licensing--renewals
o    MG PBS sponsor licensing--highly-trusted sponsors
o    MG PBS sponsor licensing--maintenance
o    MG PBS sponsor management

Action against sponsors in response to ETS scandal

On 10 February 2014, the BBC aired the programme, Panorama--Immigration Undercover: The Student Visa Scandal. The programme alleged that TOEIC English-language tests offered by English Language Services (ETS) were being passed fraudulently at some UK-based testing centres and then used as supporting evidence in Tier 4 (General) student applications.

In response to the Panorama programme, the Home Office launched an investigation into the TOEIC test results of Tier 4 (General) students and their sponsors, as well as migrants in other immigration categories.

On 24 June 2014 the Home Office suspended the Tier 4 sponsor licences of 57 private colleges and one university. A further two universities had their Confirmation of Acceptance for Studies (CAS) allocations set to zero. The suspended university had its licence reinstated subject to further review, and CAS allocations were restored to the other two universities. As at February 2015, at least 64 privately funded colleges had their licence revoked or had surrendered it. For further information about this action, see News Analysis: Cracking down on student visa abuse and Applying for a UK visa: approved English language tests (GOV.UK). This page of the GOV.UK website contains a document titled 'Home Office immigration action against education institutions: factsheet', which provides guidance for students on sponsor suspensions and revocations.

The case of London St Andrew's College v SSHD [2014] EWHC 4328 (Admin), [2014] All ER (D) 236 (Dec) is the first example of a legal challenge to a sponsor licence revocation decision involving fraudulently obtained TOEIC test results. In that case, the sponsor's licence was revoked on various grounds including that it had issued CAS to students whose TOEIC test results had subsequently been withdrawn by ETS. It was not alleged that the sponsor was aware of any irregularities regarding the withdrawn tests. The court found that it was rational for the Home Office to consider acceptance of poor quality students by the sponsor to be a breach of its sponsor duties and to revoke the sponsor's licence on that basis. Responsibility for ensuring the genuineness of students and their ability to speak English to a sufficient standard lies with the sponsor, and the Home Office's role is to supervise the sponsor's purported compliance with its duties.

The reliability of the method used by ETS to determine whether to withdraw test results is the subject of controversy, see LNB News 06/02/2015 144. It remains to be seen whether this will factor in any future litigation.

Revised minimum standards for Tier 4 (General) sponsors

A series of changes to the sponsorship arrangements for Tier 4 were announced in March 2011 and were implemented on a phased basis until the end of 2013.

These changes included:

o     requiring all new Tier 4 sponsors (aside from exempt overseas-based Higher Education Institutions offering short-term study abroad programmes in the UK) to meet an 'educational oversight' requirement through having a current and satisfactory full inspection or audit by:

◦     the Quality Assurance Agency (QAA) for higher education
◦     Ofsted (England)
◦     Education Scotland (Scotland)
◦     Estyn (Wales)
◦     Education and Training Inspectorate (Northern Ireland)
◦     Bridge Schools Inspectorate (England)
◦     Schools Inspection Service (England), or
◦     Independent Schools Inspectorate (ISI) (England)
    
o     requiring all existing Tier 4 sponsors (aside from exempt overseas-based Higher Education Institutions offering short-term study abroad programmes in the UK) to meet the educational oversight requirement, including making an application for oversight by specified deadlines
o     requiring privately-funded Tier 4 sponsors to meet extended educational oversight requirements from 2013, including that privately-funded institutions may only apply for educational oversight during annual time-limited windows
o     requiring all Tier 4 sponsors to become Highly Trusted Sponsors (HTS), including making an application for this by specified deadlines
o     imposing interim limits on the number of students that can be sponsored by certain Tier 4 sponsors that do not hold HTS status and/or do not meet the educational oversight requirement

Following the implementation of the above, there has been a marked reduction in the number of registered Tier 4 (General) sponsors. This has been mainly due to sponsors surrendering their licences, the Home Office taking suspension or revocation action and/or the education providers ceasing to trade.

Students have also encountered difficulties finding a new sponsor since registered sponsors who are subject to the interim limit may not have a Confirmation of Acceptance for Studies (CAS) available to assign to them.

Sponsor ratings
There are currently four possible ratings that a Tier 4 (General) sponsor may hold:

o     HTS (Premium)
o     HTS
o     A-rated Sponsor
o     Legacy Sponsor

The Register of sponsors (Tier 4) includes a list of all registered Tier 4 (General) sponsors and their rating under Tier 4 (General) or Tier 4 (Child).

An 'A rating' is considered to be a transitional rating. The Legacy Sponsor rating is for certain sponsors that did not meet/did not try to meet certain aspects of the educational oversight or HTS criteria in circumstances that did not lead to their licence being revoked. A range of restrictions apply to these sponsors that do not apply to HTS.

Highly Trusted Sponsors

All sponsors must apply for HTS status within specified deadlines.

A sponsor that applied for HTS status before 1 November 2014 was required to meet mandatory minimum requirements and to score 70 points or more on additional core measurable requirements. Independent schools were only required to meet the core measurable requirements if the Home Office deemed this nec-essary on a case-by-case basis.

In order for HTS status to be granted to a sponsor applying on or after 1 November 2014, the sponsor must meet core requirements. There is however scope for a discretionary assessment to be made in limited cir-cumstances where a sponsor cannot meet the core requirements. It is up to the sponsor to make submissions outlining why discretionary assessment is appropriate based on the sponsor's specific circumstances (see R (Access Education Ltd t/a Access College) v SSHD [2015] All ER (D) 225 Feb)

HTS status must be renewed annually and the renewal application must be submitted before the expiry of the existing HTS licence. The renewal application will be assessed against the criteria for HTS as published at the time of renewal.

With limited exceptions, only a sponsor holding HTS status can:

o     offer a course to a Tier 4 (General) student at Qualifications and Credit Framework (QCF) or National Qualifications Framework (NQF) level 3 and equivalent

o     offer a course to Tier 4 (General) student that is below QCF or NQF level 6 and includes a work placement, unless the course is a foundation degree

o     allow a Tier 4 (General) student to re-sit a course module or examination more than twice

o     allow a Tier 4 (General) student to start studying with the sponsor where it has issued a CAS and the CAS has been used in an in-time application submitted by the student but the application has not yet been decided

There is also the opportunity for a sponsor holding HTS status and meeting other eligibility criteria to pay an additional fee to access premium customer service from the Home Office.

Legacy Sponsors

A Tier 4 (General) sponsor will become a Legacy Sponsor where it:

o     did not make an application for educational oversight by the specified deadline
o     did make an application for educational oversight by the specified deadline but fails to meet the requirements
o     met the mandatory requirements for HTS status under the assessment process in place before 1 November 2014 but scored a near miss (more than 50 but less than 70 points) on the core measurable requirements for HTS, and then scored a second near miss when it re-applied for HTS, or
o     fails to pass a full assessment with the relevant educational oversight body at any time

A legacy sponsor will have its CAS limit set to zero and so will be unable to sponsor new students. If a student already studying with a legacy sponsor needs to extend their stay to complete their course, the sponsor must apply to the Home Office for a CAS.

A legacy sponsor will cease to be a sponsor at the date its sponsor licence is due to expire. It will no longer be able to sponsor Tier 4 (General) students from that date, irrespective of whether it has existing students who have not yet finished their course.

It is advisable for any Tier 4 (General) student who is currently studying with a legacy sponsor to find out the following information:

o     when the sponsor's licence is due to expire and whether the student anticipates being able to complete their course with the sponsor in the UK by this date, as a distance student from abroad, or with an alternative sponsor
o     whether the sponsor has requested judicial review of a decision made by the Home Office relating to the sponsor's licence and, if so, the current status of the litigation.

The type of education provider

A Tier 4 (General) sponsor may be one of the following types:

o     a recognised body
o     a publicly-funded Higher Education Institution (HEI)
o     a privately-funded HEI
o     an overseas HEI
o     a publicly-funded Further Education College (FEC)
o     a privately-funded FEC, or
o     an independent school

English-language schools are not listed separately as they will fall under one of the above types.

The type of education provider may have a bearing on:

o     what options an applicant under the Tier 4 (General) sub-category has for meeting the relevant English-language requirement
o     whether a single CAS may be issued to cover both a pre-sessional course and a course of degree level study
o     the work limitations applicable to a Tier 4 (General) migrant
o     the eligibility of a Tier 4 (General) migrant's dependents to accompany them

Since education providers of different types offer similar courses, the type of education provider may well be the determining factor for a Tier 4 (General) applicant.

This may be the case, eg if work experience is desired (including holiday internship experience or work with a Tier 2 sponsor prior to a decision on a further leave to remain application under that tier) or they have dependents.

Revocation action by the Home Office

The Home Office may revoke a Tier 4 (General) sponsor's licence in a large number of circumstances including where the sponsor:

o     fails to apply for HTS status or renewal of HTS status by a relevant deadline (subject to a suspension process and the consideration of any representations received relating to the failure)

o     is refused HTS status (subject to a suspension process and the consideration of any representations received relating to the failure), or

o     fails to comply with its sponsor duties, is dishonest in its dealings with the Home Office, fails to provide information it holds to the Home Office when required, or is considered a threat to immigration control

The eligibility criteria for sponsors to acquire and retain HTS status are not fully within the sponsor's control, eg the refusal rate of applications for entry clearance or leave to remain may relate to failures of the sponsor or the student, however, a refusal rate of 20 per cent or more will lead to a refusal of HTS status. The application for HTS status may also bring to light other sponsor compliance issues that the Home Office was not previously aware of, and which may justify revocation.

In the case of R (on the application of London College of Management Ltd) v Secretary of State for the Home Department (SSHD) [2012] EWHC 1029 (Admin), [2012] All ER (D) 46 (Apr), the High Court found that the former UK Border Agency (UKBA) was entitled to refuse a sponsor HTS status where the rate of refusals was 20 per cent or more, and was not required to consider the reasons for each individual refusal. The sponsor had not understood that it was required to report non-enrolment where entry clearance or further leave had been refused. The relevant reporting requirement was considered by the court to be sufficiently clear in the relevant SG and the UKBA was therefore entitled to consider the sponsor's failure to report as a breach of sponsor duties.

In R (on the application of CNM (The College of Naturopathic Medicine) Ltd) v SSHD [2012] EWHC 1851 (Admin), the High Court upheld a decision of the UKBA to refuse HTS status to a sponsor where the rate of refusals was 20 per cent or more. In that case, the court held that:

o     it was not irrational for the UKBA to refuse HTS status in circumstances where no material harm to effective immigration control occurred, and
o     the UKBA was not required to discount a refusal where the student subsequently made a successful application for leave with the sponsor, because the refusal may have been an indicator of insufficiently robust vetting practices on behalf of the sponsor.

In R (on the application of West London Vocational Training College Ltd) v SSHD [2013] EWHC 31 (Admin), [2013] All ER (D) 83 (Jan) -- another case in which a sponsor had been refused HTS status due to exceeding the 20 per cent application refusal rate threshold--the High Court rejected the claimant's argument that the Tier 4 sponsor guidance (SG Tier 4) was invalid (being bound by the decision in R (on the application of New London College Ltd) v SSHD [2012] EWCA Civ 51). The court also considered that it was not unreasonable for the UKBA to expect a sponsor to satisfy itself that an applicant would be able to meet the maintenance requirement before issuing a CAS.

Similarly, in R (on the application of Western Governors Graduate School (WGGS) Ltd) v SSHD [2013] EWCA Civ 177, [2013] All ER (D) 80 (Mar) the Court of Appeal considered that the UKBA was entitled to refuse HTS status to a sponsor where that sponsor had an application refusal rate above 20 per cent and had failed to report 92 students who did not enrol after having applications for leave refused. In the court's view, although the UKBA had not published any specific refusal rate at the time the HTS status was refused, the sponsor should have been aiming to minimise refusals and was aware that its refusal rate would be assessed against the relevant norm. Further, the requirement to report non-enrolment was sufficiently clear in the relevant Sponsor Guidance and the UKBA had given consideration to the sponsor's representations regarding the mitigating circumstances before concluding that the sponsor had breached its reporting obligations.

R (on the application of Global Vision College Ltd) v SSHD [2014] EWHC 205 (Admin) is another case in which the UKBA's decision to refuse HTS status (and to subsequently revoke the sponsor's licence) was upheld. In this case, the sponsor's application refusal rate was above 20 per cent. The court held that it was not unlawful for the UKBA to refuse entry clearance applications where information given to it in interviews by prospective students undermined the veracity of what was stated in their CAS about how their English-language ability had been assessed by the sponsor. Although there was a disagreement between the sponsor and the UKBA as to whether particular discrepancies identified in the interviews did in fact undermine the veracity of the CAS, this was insufficient to justify requiring the UKBA to exercise its discretion and consider individual refusals rather than applying the mandatory 20 percent refusal rate requirement. The UKBA was entitled to conclude that a refusal rate above this threshold represented a threat to immigration control and that the sponsor could therefore not be considered 'highly trusted'.

In R (on the application of Lords College of Higher Education) v SSHD [2013] EWHC 2027 (Admin), [2013] All ER (D) 57 (Aug), a Tier 4 sponsor sought to challenge the suspension and revocation of its sponsor licence by way of judicial review. The High Court considered that although the UKBA had been entitled to suspend the licence, in revoking the licence on discretionary grounds, the UKBA failed to take into account any mitigating factors, as required by para 403 of the 4 July 2011 version of the SG Tier 4. The revocation decision was also considered unlawful due to revocation action not falling within the range of reasonable responses open to the UKBA in the circumstances of the case.

In R (on the application of Stanley College London UK Limited) v SSHD [2014] EWHC 1038 (Admin), [2014] All ER (D) 164 (Apr) the claimant college was unsuccessful in challenging the UKBA's decision to refuse HTS status and to revoke its licence due to the college having a refusal rate above 20 per cent. The college had issued 33 CAS, and 8 applications based on these had been refused. The High Court reiterated that the UKBA was not required to consider individual refusals. Since the claimant had not demonstrated in its representations to the UKBA that any exceptional circumstances applied, it was not irrational for the UKBA to choose not to exercise discretion and waive the 20% refusal rate requirement.

In R (on the application of Goldsmith International Business School) v SSHD [2014] EWHC 1232 (Admin), [2014] All ER (D) 41 (May), the High Court quashed the UKBA's decision to refuse the claimant HTS status, which had been made primarily on the basis that its application refusal rate was above 20 per cent. The court found that it had been Wednesbury unreasonable for the UKBA to include in the calculation 60 refused entry clearance applications which had been refused due to a failure of UKBA officials to properly apply UKBA guidance relating to when a programme of study may be covered by one CAS.

If the 60 erroneous refusals were excluded from the calculation, the claimant's refusal rate was below 20 per cent. Also, prior to September 2011 the college had failed to report students who did not enrol after having their application for leave refused. This failure was due to a misunderstanding of the sponsor guidance and the claimant started to report non-enrolments following refusal of leave once the misunderstanding had been identified. The court held that in the course of the decision-making on the HTS application, the UKBA had not paid sufficient regard to the claimant's current capacity and performance in reporting non-enrolments following refusal of leave.

The case of R (Access Education Ltd t/a Access College) v SSHD [2015] All ER (D) 225 Feb concerned a Tier 4 (General) sponsor whose application for HTS status was refused due to having an application refusal rate above 20 per cent, an enrolment rate below 90 per cent and for failing to report non-enrolments. The court found that the UKBA's approach in its assessment of these three factors had not been irrational. The college had argued that certain refusals ought to be discounted, however the UKBA was entitled to count refusals during the assessment period without looking into the reasons why each student did not choose to seek administrative review or to exercise a right of appeal. Similarly, the UKBA was entitled to count non-enrolments without looking into the reasons for non-enrolment.

If the college wished to have exceptional factors regarding this to be taken into account in the HTS assessment, it should have raised them at the time of application. Lastly, although the college claimed it was unable to report non-enrolments in some cases due to Sponsor Management System constraints, that claim was not substantiated and it could not be shown that the UKBA had placed irrational reliance on the failure to report non-enrolments.

Some compliance issues the former UKBA and Home Office have focused on to-date include:

o     poor student recruitment and agent monitoring practices
o     poor assessment of student ability before assigning a CAS
o     poor assessment of whether courses constitute academic progress
o     poor control of course-related work placements
o     lack of appropriate capacity at the education provider for the number of students sponsored
o     allowing students without valid and/or appropriate immigration permission to study at the sponsor
o     lack of appropriate planning permission for conducting a business that is an education provider
o     lack of evidence to demonstrate that courses offered to Tier 4 (General) students lead to an approved qualification
o     sharing of Sponsor Management System login details
o     poor attendance of students
o     poor attendance monitoring and other record-keeping systems
o     poor reporting of non-enrolments, student absences or changes of student circumstances
o     failure to adequately report changes of sponsor circumstances (including new principal, owner or premises), or reporting ownership changes (including share sales) of a kind that will result in revocation as confirmed in the Tier 4 sponsor guidance in force at the time of the change

Where a Tier 4 (General) sponsor's licence is revoked, the leave of the Tier 4 (General) migrants studying with the sponsor will normally be curtailed, as will the leave of any Tier 1 (Graduate Entrepreneur) migrant endorsed by the sponsor.

In practice, however, a Tier 4 sponsor may seek to challenge a revocation decision by way of judicial review. This may result in curtailment action being delayed, eg where interim relief is granted which prohibits the licence from being revoked until the judicial review is substantively determined.

The lawfulness of the licensing regime for Points-Based System (PBS) sponsors was confirmed in July 2013 by the Supreme Court in the conjoined cases of R (on the application of New London College Limited) v SSHD; R (on the application of West London Vocational College Limited) v SSHD [2013] UKSC 51, [2013] 4 All ER 195. In the majority judgment, the court decided that:

o     the SSHD's statutory power to administer a system of immigration control is contained in the Immigration Act 1971 (IA 1971) and extends to a range of ancillary and incidental powers not expressly set out in the Act, including vetting sponsors (at [28])
o     the SSHD's statutory power for vetting sponsors is not unlimited--the SSHD cannot adopt measures that:
◦     are inconsistent with the IA 1971 or the Immigration Rules
◦     are coercive (unless specific statutory authority has been given)
◦     infringe the legal rights of others (including under the ECHR)
◦     are irrational, unfair or otherwise conflict with public law constraints on administrative ac-tion (at [29])
o     the mandatory requirements for awarding and retaining a sponsor licence, set out in the SG Tier 4, are 'rules' within the meaning of IA 1971, s 3(2), however, they are not required to be laid before parliament since they do not regulate the entry and stay of migrants (at [24])

Lord Carnwath agreed with the majority that the appeals should be dismissed however, in his view (at [33]), the source of the SSHD's incidental powers for vetting Tier 4 sponsors are derived from the IA 1971, s 1(4), which allows the SSHD to regulate entry and stay for the purposes of study.

Issues for Tier 4 (General) students to consider

Due to the phased implementation of the changes to the Tier 4 (General) sponsorship regime (and few new additions to the Tier 4 register of sponsors), the number of registered Tier 4 (General) sponsors has declined since 2012. This trend is likely to continue at least until such time as the licences of all Legacy Sponsors have expired.

While there is no way for a Tier 4 (General) student to know whether their sponsor will retain a sponsor licence throughout the period of their intended studies, the following points may assist to minimise cost and disruption to them.

Sponsor selection

When selecting a Tier 4 (General) sponsor, a person may consider:

o     the rating of the sponsor
o     the academic reputation of the sponsor
o     whether the sponsor asks for, and retains copies of the person's identification documents, UK immigration documents (if relevant) and educational qualifications--all sponsors must do so and if the sponsor does not, this should raise concerns about its ability to comply with its sponsor duties
o     whether the sponsor asks for, and retains copies of secure English language test (SELT) results--all sponsors must do so and if the sponsor does not, this should raise concerns about its ability to comply with its sponsor duties
o     whether the sponsor undertakes its own assessment of English language ability (in addition to reviewing SELT results) and the student's capacity and intention to study the course
o     whether the sponsor asks for verification of the person's ability to meet the Tier 4 (General) maintenance requirement--it should do so in order to minimise the risk that the student's application for entry clearance or leave to remain will fall for refusal

Fee payment

In some instances, eg where a sponsor has ceased trading, students have encountered difficulties in obtaining fee refunds from sponsors following licence revocation. A person considering applying as a Tier 4 (General) migrant should enquire with the proposed sponsor regarding its fee refund policy and should consider paying their course fees using a credit card if possible.

If the person is unable to obtain a fee refund from the sponsor in the event they become entitled to one (either under the sponsor's fee refund policy or under consumer law), they may be able to pursue a claim through their credit card company.

Funding

Where a Tier 4 (General) student's sponsor ceases to hold a licence, a person considering studying in the UK as a Tier 4 (General) migrant should consider what sources of funding are available to them and ensure that the funding remains at all times in an acceptable format. For example, if the funding is from a spouse/partner or person other than a parent, then consideration should be given to holding the funding in a joint cash account. Cash funds should also be held in all cases in an institution that is not listed in the Immigration Rules, Appendix P as being unacceptable for Tier 4 maintenance purposes.

Tier 4 (General) students should not rely on being eligible to meet a reduced maintenance requirement due to having an established presence studying in the UK. This is because a student cannot control the timing of when they may need to make an application.

Alternative sponsorship

Where a person needs to find an alternative sponsor, the accreditation body that accredited their previous sponsor may be able to offer assistance. The accreditation bodies are as follows:

o     Accreditation UK
o     The Accreditation Body for Language Services (ABLS)
o     The Accreditation Service for International Colleges (ASIC), or
o     The British Accreditation Council (BAC)

For those who have been studying an English-language course and wish to continue to do so, the English UK website may be able to offer assistance.

Timing issues

Some sponsors may not be in a position to offer a CAS to a continuing student where it has already reached its CAS limit, or where their CAS allocation has been set to zero. In such cases, if the person cannot obtain a CAS for the course they wish to study, they should enquire whether they may be able to re-enter the UK as a student visitor to complete their chosen course, or to complete it as a distance student from abroad.

There have been instances in which the Home Office has incorrectly curtailed the leave of Tier 4 (General) students to 60 days from the date their sponsor's licence was revoked. The correct procedure is for the Home Office to curtail leave 60 days from the date the student is notified that their leave is being curtailed. Where leave has been incorrectly curtailed, the Home Office should be contacted and asked for a correction, quoting the SG Tier 4, Document 2: para 183(a). For confirmation of the correct policy approach for the Home Office to take in this situation and the circumstances in which a student will be considered to have an established presence for maintenance purposes, see the UKBA's letter to UKCISA dated 6 December 2011.

There are a large number of time-based requirements of Tier 4 (General) and these should be carefully con-sidered before any application is submitted. Where a time-based requirement cannot be met, a decision will need to be made as to whether to submit the application with representations requesting the exercise of discretion outside the Immigration Rules. This approach may be entertained, eg where it is arguable that enforcing the requirement may lead to a breach of procedural fairness.

Alternatively, the person may depart the UK and apply for entry clearance once they are able to meet the requirements of the Immigration Rules for Tier 4 (General). This may be the preferred option in cases where, eg the person no longer has current leave and wishes to avoid the possible imposition of a re-entry ban for remaining in the UK beyond the expiry of their leave.

This article was originally published in LexisPSL Immigration.

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