Tier 4 Sponsors – Coronavirus (COVID-19) guidance

Yes. The Home Office updated its position on this on 16 June 2020 and the Covid-19 Tier 4 Guidance now confirms that:

‘Sponsors can…commence sponsoring new students who will start studying through distance or blended learning in the 2020-2021 academic year provided they intend to transition to face-to-face learning as soon as circumstances allow.’

Sponsor should take a cautious approach and ensure that decisions regarding distance/blended learning courses that are offered to students who need a CAS do not expose them to potential UKVI enforcement action in the future. We have covered this in more detail here.

We can provide bespoke legal advice on various potentially complex issues regarding course and other changes that education providers are facing such as:

• how to seek to minimise UKVI compliance risks around distance and blended learning courses;
• how to reduce potential compliance risks that are associated with potentially significant numbers of sponsored students entering the UK at different times, shielding in the UK or abroad, etc;
• how to approach potential complexities surrounding EU/EEA students who must physically reside in the UK, and be able to demonstrate they are doing so, before 31 December 2020 in order to be able to make an application under the EU Settlement Scheme. Such students will avoid having to obtain a (potentially costly) visa under the new immigration system that is due to come into force from January 2021;
• how best to approach potential complexities concerning right to study checks given the various issues referred to above.

Yes. The Home Office has also confirmed that:

‘Tier 4 sponsors can continue to sponsor existing Tier 4 students who are continuing their studies through distance learning, whether they are in the UK or another country.’

Where a student was required to move to study via distance learning due to Covid-19, the sponsor does not need to report this.

No. The Home Office’s position remains as it was before the pandemic. Sponsorship is not available for regular distance learning courses.

Unfortunately, the 16 June 2020 update contains unclear information. On the one hand, the Home Office has confirmed that ‘If a student stops engaging with their distance learning, whether overseas or in the UK, their sponsor must withdraw sponsorship immediately’.

However, they have also confirmed that ‘We will not take action against sponsors who are unable to monitor online contact points due to technical limitations’.

We would recommend that sponsors that are unable to monitor online contact points due to technical limitations create a manual system to check-in with sponsored students who are studying via distance or blended learning to ensure they are engaging with their studies.

The Home Office has confirmed that sponsors are not required to withdraw sponsorship, or report to UKVI, where a sponsored student is absent from their studies due to Covid-19. Its position is that sponsors are required to maintain records of students who are absent for this reason.

In practice, it may be difficult for a sponsor to obtain evidence from a student who is, for example, ill with Covid-19. Sponsors should keep a record of attempts to contact students and we would advise that decisions to withdraw sponsorship are only taken as a last resort and where it is clear that the student’s absence from studies is not due to Covid-19, or where the length of the absence means that the student will be unable to complete their course.

Where sponsored students are studying through traditional means, the Home Office will expect sponsors to comply with their usual duties in relation to attendance and absence monitoring.

If the sponsor has been told by the student/their parents that the student will not be resuming their studies, sponsorship must be withdrawn in the usual manner via the SMS.

If the course data has changed, the Home Office has confirmed that if the CAS has not been marked as ‘used’ or ‘expired’, the sponsor should update the new course date in the sponsor notes field. The student can then apply for a visa at the appropriate time.

Otherwise, where the CAS has expired or has been used, but the student has not been able to travel to the UK due to Covid-19, the Home Office will consider exceptionally allowing the CAS to support a new visa application on a case by case basis. The caseworker will need to be satisfied that the CAS expired or the student was unable to travel to the UK because of the pandemic.

The Home Office has confirmed that Tier 4 sponsors, other than legacy sponsors, can allow a student to commence studies providing a CAS has been assigned, the student submitted an in-time application for further leave to remain, the course is the same as listed on the CAS and, where relevant, the student has a valid ATAS certificate. This only applies to students who are in the UK.

The Home Office has stated that if the student’s application is eventually refused, their studies must be terminated.

It has also stated that the sponsor’s reporting duties start from when the CAS was assigned.

The Home Office has also set out concessions regarding a range of situations relating to in-country applications, retakes, academic progression, etc. and full information on these provisions can be found at paragraphs 3.4 – 3.8 of the Covid-19 Tier 4 Guidance.

Unfortunately, there is a risk that the Home Office may not grant an application if the student’s circumstances do not meet the requirements it has set out in its guidance.

Where students requiring a SELT are unable to take it because test centres in the country from which they are applying are closed, certain sponsors can self-assess students as having B1 level English. This is only where the main course is dependent on the passing of a pre-sessional.

A sponsor that can benefit must be a higher education provider:

• that has a track record of compliance, or
• that does not yet have a track record of compliance due to a pending registration with the OfS; or
• is not eligible to register with the OfS.

Sponsors must keep records to demonstrate how they undertook the assessment and it must be noted that the student was unable to take a SELT due to test centre closure.

If test centres reopen in the country from which the student is applying before the CAS is assigned, the student must take a SELT. Where a CAS has been assigned, the student must take a SELT if test centres reopen, and the CAS must be updated. This is unless the centre opened less than seven days before the application was submitted in which case, the application can proceed on the basis of the sponsor’s assessment.