Universities, colleges and schools in the UK are dealing with numerous difficult issues when planning for the new academic year. Here, we explore some of the main immigration complexities around Tier 4, blended learning, EU students and right to study checks that education providers may need to take into account.
The Home Office has been issuing guidance during the coronavirus pandemic to assist the education sector with immigration related concerns. We’ve been covering key developments here.
Several concessions have been introduced which are, on the whole, welcome in relation to sponsored students. However, there remain a number of issues regarding the new academic year that education providers will need to consider, especially concerning blended learning options and what the end of the transition period may mean for EU students.
EU students and the UK’s immigration system
It is important that education providers understand the current and future UK immigration rules and requirements regarding EU, EEA and Swiss nationals (‘EU nationals’).
The UK left the EU on 31 January 2020 and is now in the transition period, also known as the implementation period. This is due to end on 31 December 2020. The Government’s position is that EU nationals who move to the UK to live, work and study from 1 January 2021 onward will need to obtain immigration permission, in much the same way as non-EU nationals do now.
A new immigration system for the UK is currently being designed.
Obtaining settled status, which is granted to EU nationals who can show that they have lived in the UK for at least five years, means that the individual is free from immigration control and does not have to make any further immigration applications (as long as they do not leave the UK for more than five consecutive years, or four years for Swiss citizens). Those with settled status have the same rights to live, work, healthcare and welfare as UK citizens. EU nationals who have not lived in the UK for five years can obtain pre-settled status. They will have to make a further, free, application under the EU Settlement Scheme for settled status once they have lived in the UK for five years (if they wish to remain). Whilst they have pre-settled status, they have the right to live, work and healthcare in the UK. Those with pre-settled or settled status can view and provide evidence of their status via an online tool. Most applicants will commence the application process via the ‘EU Exit: ID Document Check’ app. If a person has a national insurance number, this is usually sufficient for the Home Office to be able to check that they have been residing in the UK. Those who do not have a national insurance number, and this may include newly arrived students, will need to review the documents that can be provided to demonstrate that they are living in the UK. There is no minimum residence requirement. As long as the applicant is in the UK when the application is filed and can provide a national insurance number or meet the documentary requirements, the application will be successful. This is providing the application does not fall for refusal based on criminality grounds. If the applicant lives in the UK but is temporarily abroad, they may be able to submit their application from overseas. In the case of families, children are not automatically granted status just because their parents have applied for, or obtained, it under the scheme. An application must be made for each family member. This is important for schools and other providers that teach children to note. The EU Settlement Scheme is not for EU nationals who just want to visit the UK and do not intend to reside here. After 1 January 2021, EU visitors will be able to continue to visit in much the same way as they do now. The general information provided here regarding EU nationals will be of relevance to the majority. However, there may be certain scenarios, especially in relation to EU nationals who have resided in the UK for some time or those with complex situations, where other options are more suitable. Example 1: Stefan is a German national. He moves to the UK on 28 December 2020 to commence a three-year course of study starting on 8 January 2021. As long as he has a UK address and meets the documentary and criminality requirements, Stefan will be able to apply for pre-settled status, commencing his application via the app. The process is free and generally fast and simple. Stefan’s pre-settled status will enable him to study in the UK without needing to complete any further immigration applications. If Stefan’s wife and children move to the UK with him, they will also be able to apply for pre-settled status. Stefan (and his family) will be able to work/study without restriction and will be able to obtain settled status after five years, again at no cost (based on current legislation). We are often asked if EU students who move to the UK on 31 December 2020 will also be able to make an application under the EU Settlement Scheme. The answer is yes, providing they have a UK address and, crucially, meet the documentary requirement. However, we do not recommend that EU students leave it to the very last minute to move to the UK if this can be avoided – a delay to a flight, for example, that sees the student arrive on 1 January 2021 would mean that the student misses the opportunity to apply under the EU Settlement Scheme. It is important that EU students are aware that they will need to submit a declaration as part of the application process confirming that any information provided is accurate. Providing false information could have potentially serious future consequences. It is not possible for an EU citizen who is overseas and has not lived in the UK to submit an application under the EU Settlement Scheme on the basis that they will move to the UK after the cut-off date. Example 2: Adrienne is a Polish citizen. She is intending to move to the UK on 2 January 2021 to commence the same course of study on 8 January 2021 as Stefan. Adrienne will therefore miss the cut-off date under the EU Settlement Scheme. She will need to obtain a visa. Under the current rules, a three-year visa to study in the UK costs £348 plus the Immigration Health Surcharge, which will be £1,410 for three years in January 2021. The upfront immigration cost will be £1,758. Adrienne will be subject to the conditions of stay as set out in her visa, including restrictions on work rights. Her student visa will not lead to settlement in the UK. If Adrienne finds a sponsor and moves to a work visa after her studies, that will cost her around £4,408 for a five year visa, based on today’s fees. If she applies for Indefinite Leave to Remain, that’ll cost another £2,389. If Adrienne’s family move to the UK with her, they will also need to pay for visas and will also be subject to conditions of stay. As you can see, the difference in the upfront costs for Stefan and his family and Adrienne and her family are significant. If Adrienne wants to eventually settle in the UK, she will need to navigate the UK’s immigration system once she has finished her studies (applying for a graduate visa, work visas, etc.), will need to pay potentially thousands in visa costs and be continuously subject to restrictions before she can eventually apply to settle in the UK. The costs of her decision to move to the UK after 1 January 2021 will be significant and will have repercussions for many years to come. Adrienne is strongly advised to move to the UK before 1 January 2021, in which case she will be able to benefit from the EU Settlement Scheme. We recommend that EU students make their application as soon as possible to avoid a delay if there is a last-minute surge in applications. It will also enable them to be able to clearly demonstrate their right to be in the UK. Whilst EU nationals are automatically entitled to work, live and study in the UK, as long as they have arrived before 1 January 2021, some employers, landlords, etc. may not be aware of that and may ask for specific confirmation. It is going to be increasingly important that EU nationals who are in, or who are moving to, the UK to study know about the EU Settlement Scheme and the deadlines for arriving in the UK and then applying under the scheme. We recommend that education providers publish information about the scheme and highlight the benefits of it, versus an application for a visa from 1 January 2021. Whilst there are many benefits associated with such options, EU students who decide to stay in their home country to study, rather than move to the UK, will miss the opportunity to benefit from the EU Settlement Scheme. EU students who move to the UK before 1 January 2021, even if they continue to study when inside the UK by way of distance or blended learning, will be able to apply under the EU Settlement Scheme. As we explain below, factoring in at least some compulsory face-to-face engagement in the first semester/term for students may be especially beneficial for Tier 4 sponsor licence holders. In relation to EU students, it may also increase the numbers who will be able to benefit from the EU Settlement Scheme. Of course, it is important when considering changes that education providers act in a manner that complies with regulation/qualification body requirements along with consumer protection, equality and other relevant legislation. Typically, education providers will check that UK and EU students have a passport, or other acceptable form of ID/status. Non-EU students must provide evidence of their immigration status showing that they are permitted to study in the UK – usually this is by way of a visa or Biometric Residence Permit. The situation in relation to EU students has the potential to become extremely complex once the transition period ends on 31 December 2020. Until then education providers can rely on evidence for the right to study check that simply confirms that the student is an EU national. However, from 1 January 2021, there will be four groups of EU students: The Government has not published any guidance yet on how it expects education providers to check the immigration status of their EU students from 1 January 2021. Where possible, especially for education providers that have a significant number of EU students, consideration should be given to updating application forms, terms and conditions and data protection policies asap to enable them to seek further information from EU students as to their status/intentions. This will need to be managed carefully given that, at the moment, EU students are not lawfully required to provide further information, beyond demonstrating that they are an EU citizen. Depending on how the Government deals with these complexities, it may become necessary for sponsor licence holders to retain information on EU students, such as when they moved to the UK, whether they have applied under the EU Settlement Scheme or intend to do so before 30 June 2021, as part of their right to study procedures. The information provided by the Government to date does not rule out that there may be a risk that an EU student who arrived in the UK before 31 December 2020, but who fails to apply under the EU Settlement Scheme by 30 June 2021, may be unable to lawfully continue their studies in the UK. In relation to the UK’s schools, currently only independent schools are permitted to hold a sponsor licence to sponsor international students. So far, the Government has not indicated that there will be a change to this, meaning that it is unlikely to be possible for other schools to sponsor EU students who come to the UK from 1 January 2021. They will be able to continue to teach EU students who have obtained, or are able to obtain, pre-settled or settled status. They will also be able to continue to teach those who come to the UK after 1 January 2021 and who have another type of visa, for example, to accompany a parent on a work visa. The general rules around overseas children and admissions procedures for state-funded schools are complex and can be found here. The information above refers specifically to the ability of schools to act as immigration sponsors for EU child students. A number of charities are working with vulnerable EU children to ensure that applications under the EU Settlement Scheme are made on their behalf and the Government has provided specific guidance. International students – blended learning and Tier 4 Issues include: In response to the coronavirus pandemic, the Home Office issued a concession, set out in this document, that allows Tier 4 sponsors to offer distance and blended learning courses, previously prohibited, to Tier 4 students on the basis that they will transition to face to face learning ‘as soon as circumstances allow’. In our view, where possible, including at least some legitimate compulsory face to face engagements in the first semester/term, for those students who are able to physically attend, may have a number of benefits in terms of interaction, integration, use of facilities, etc. We have seen how it may benefit EU students. It may also help the sponsor to better manage their CAS issuing and compliance processes. Alternative online engagements could be implemented for those students who are unable to attend those face to face sessions due to a legitimate reason. This will not be appropriate for all sponsors but, for some, as part of the CAS process, they could also think about asking international students to confirm if they intend to travel to the UK for the start of the first term or not. Some students will be shielding in their home country, others may be caring for relatives, others may be too anxious to travel and some may be physically unable to travel. If the sponsor knows which students will not be needing a Tier 4 visa for the first semester/term and will be studying during that period by way of distancing learning only (with a view to travelling to the UK for face to face learning at a later stage), it can focus its CAS issuing processes. Those who are intending to travel to the UK for the start of their course, or as soon as possible depending on visa application centre re-openings, can be prioritised and better managed. Managing this part of the process carefully may, in turn, enable the sponsor to be able to better manage its monitoring and reporting duties later on. The sponsor duties, including the concessions in place as a result of the pandemic, only apply in relation to students to whom the sponsor has issued a CAS. Once the main CAS issuing process is out of the way for the majority of students, the sponsor can then communicate with international students who have delayed their travel to the UK for a legitimate reason and are studying their course via the online only options. The sponsor can then assign a CAS on a student by student basis, as and when it becomes possible for the student to move to the UK, taking into account their personal circumstances. The sponsor would be able to check, before the CAS is assigned, that the student has been engaging whilst studying online. The Home Office requires sponsors to withdraw the sponsorship of students who are not engaging with online learning, so delaying issuing a CAS in the first place allows the sponsor to check that the student is genuinely engaging with their studies and appears to be capable of successfully completing the course of study. This approach could be of benefit to sponsors that may be experiencing unusually high demand for CAS from certain potentially high risk regions, possibly due to the incoming Graduate Immigration Route. It could help them to reduce the risk of having to withdraw sponsorship due to lack of engagement or funding, for example, at a later stage. As explained above, any changes must be implemented in a manner that complies with regulation/qualification body requirements along with consumer protection, equality and other relevant legislation. A note of caution Some sponsors will undoubtedly face financial pressure to grow international student numbers during this difficult time. It is extremely important that sponsors do not implement any changes to their course offerings that may place their sponsor licence at risk, now or in the future. Sponsors should also continue to implement robust recruitment checks before assigning CAS. The Home Office will be on alert and will initiate action against sponsors that, in its view, are not taking appropriate action to prevent potential or actual abuse of the immigration system. How we can assist We are providing bespoke advice to many education providers to help them ensure that their courses are suitable for both Tier 4 sponsored students and EU students, whilst remaining compliant with the requirements for sponsors. If your organisation requires advice, please complete our enquiry form below or contact us and one of our team will assist you.
At the same time as planning for the end of the transition period, education providers that are also Tier 4 sponsor licence holders are having to implement new ideas to deal with a range of complications that are likely to arise in the new academic year as a result of the coronavirus pandemic.
Notwithstanding the range of issues caused by the coronavirus pandemic, the Home Office still requires Tier 4 sponsors to act in compliance with their sponsor duties, as set out in the main guidance for sponsors, unless a specific temporary concession is in place.
The issues faced by the education sector at this moment in time are complex and, from an immigration perspective, vary significantly depending on the size of the organisation, the number of EU and international students and a range of other factors.
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