On Friday 6 September 2013 a new Statement of Changes in the Immigration Rules was laid.
Our clients in the education sector have welcomed the relaxation of the restriction on study in the visitor category.
However, not all visitors can study and Tier 4 sponsors that teach visitors who are not permitted to do so risk enforcement action. We have therefore outlined the main questions education providers are asking about these new Rules:
1) Can visitors study now?
The new rules for visitors who may wish to undertake some study in the UK do not come in to force until 1 October 2013. Education providers should not allow visitors to study before then unless the specific visitor category already allows study, for instance, child visitor and student visitor.
From 1 October 2013, education providers should carry out careful checks to ascertain when a visitor who is in one of the categories covered by the new Rules obtained entry clearance or leave to enter.
Visitors who applied for entry clearance from abroad or leave to enter the UK as a visitor from a port before 1 October 2013 will be treated in accordance with the Rules in place before then.
Only visitors who are granted entry clearance or leave to enter on or after 1 October 2013 will be able to benefit from the new Rules and the changes are not across all visitor categories.
It will remain the case after 1 October 2013 that a visitor whose main reason for visiting the UK is for study purposes should seek entry in the student visitor or child visitor categories.
(Note on child visitors: as it’s the start of term, we have been asked by several independent schools if they can teach students who have entered the UK under the child visitor category, either accidentally (for instance if a Tier 4 CAS had been issued but not used) or where the child entered for visitor purposes and a decision was subsequently taken by their parents to enroll them in school in the UK. The answer is not simple and depends on the specific circumstances of each case. There is, however, no overriding prohibition on an independent school teaching a student who is in the UK under the child visitor category. We strongly recommend that sponsors contact us for legal advice in these situations before accepting or refusing to teach the child.)
2) Which of the visitor categories will and will not allow study?
The child visitor and student visitor routes are not affected by these changes and individuals entering the UK in those categories continue to be able study, as now.
The changes have the greatest impact on the categories of general visitor (including family visitor) and business visitor (including academic visitors and visiting professors – who have been unable to study).
People entering the UK in the following visitor categories, however, will continue to be unable to study:
- Approved Destination Status (ADS) with China
- Parent of a child at school
- Sports
- Entertainer
- Private medical treatment
- Prospective entrepreneur
- Marriage or civil partnership
Individuals who enter in order to undertake permitted paid engagements or those who come under the fiancé(e) or proposed civil partner routes are already allowed to study and this will not change.
Individuals who will be coming to the UK between 4 March and 3 September 2014 under the newly created Commonwealth Games Family Member Visitor category will not be permitted to study.
Those who come to the UK under the Parent of a Child at School category often wish to undertake short periods of recreational study and it is a shame that they have not been included in the new Rules.
Chinese nationals entering under ADS also often wish to improve their English language skills whilst they are visiting the UK. The continued restriction on study for them is a missed opportunity to forge stronger links which could have resulted in more Chinese nationals returning to the UK in the future to enroll in schools and universities and benefit the UK both culturally and economically, in line with the government’s initiative to grow international student numbers.
3) Can general and business visitors study for up to six months?
No.
Courses of study must not exceed 30 days in duration.
The individual will be able to study one or more courses in those 30 days and the study can occur intermittently or in a single block during the course of the visit.
An individual could, for instance, take a course lasting 15 days at the start of the visit. They could then do two courses lasting another 15 days at the same time, one during the day and another in the evening for instance, with the same or different sponsors. In total the individual may have completed three separate courses of study by the end of their visit to the UK.
4) Can general and business visitors study English language?
Yes but only if the institution is:
- the holder of a Sponsor licence for Tier 4 of the Points-Based System, or
- the holder of valid accreditation from Accreditation UK, the Accreditation Body for Language Services (ABLS), the British Accreditation Council (BAC), or the Accreditation Service for International Colleges (ASIC), or
- the holder of a valid and satisfactory full institutional inspection, review or audit by the Bridge Schools Inspectorate, the Education and Training Inspectorate, Estyn, Education Scotland, the Independent Schools Inspectorate, Office for Standards in Education, the Quality Assurance Agency for Higher Education, the Schools Inspection Service or the Education and Training Inspectorate Northern Ireland, or
- an overseas higher education institution offering only part of its programmes in the United Kingdom, holding its own national accreditation and offering.
5) What about other types of study?
Within the 30 day rule, general and business visitors will be able to do any other type of study they wish.
If the course is ‘recreational’ which the Home Office describes as “purely for leisure purposes”, it can be provided by any establishment and could include, for instance, cookery classes provided by a famous chef at his or her restaurant.
If the study is other than purely for leisure purposes then, as with English language courses, it can only take place if the institution meets one of the conditions outlined in question 4 above.
6) What checks should we perform to ensure that our Tier 4 sponsor licence is protected?
An education provider holding a Tier 4 sponsor licence that might wish to offer short courses of study to visitors will need to put into place new checks to ensure that they are only teaching visitors who are lawfully permitted to study.
It is going to be particularly important to check:
- the visitor category the individual falls under and whether or not study is permitted
- for general and business visitors, the date when the individual was granted entry clearance or leave to enter to ensure that this was granted on or after 1 October 2013
- the extent to which a general or business visitor has already studied during their visit.
Sponsors cannot be expected to know if a person is not telling the truth about the length of time they have already studied, but they should certainly ask the individual about previous study during the same visit and keep a record of the information provided by the visitor. If the individual does not provide clear information, the sponsor should think carefully about the risks involved in permitting the study to take place.
Compliance officers will undoubtedly ask sponsors for information about visitors who are studying with them.
Sponsors that have been found to be teaching individuals who are studying in breach of their conditions or who have no permission to be in the UK have had their sponsor licences revoked in the past and this action has been upheld by the High Court.
A sponsor that is found to be teaching visitors who do not have permission to study or who have completed 30 days study and/or cannot demonstrate that it has carried out checks risks enforcement action for failing to help to ‘prevent the system being abused.’ (Paragraph 15(a) Sponsor Guidance 01/07/13).
Conclusion
The new Rules will enable general and business visitors who wish to do so to undertake some study during their visit to the UK and this is a welcome move.
However, Tier 4 sponsors in particular will need to take great care to ensure that visitors who are enrolled on short courses do not expose the sponsor licence to unnecessary risks.
Sponsors needing legal advice on these new Rules can find our contact details here.
