Tier 4 was officially erased from the Immigration Rules on 5 October 2020, when the new Student and Child Student routes went live. Although the new Rules look very similar to the old ones, there are some key factors to be considered and we highlight some of the main changes here.
First of all, sponsors can continue to use the same licence to both issue CAS and make relevant reports.
Unfortunately, new Rules often mean more reading, and in this case there is a significant amount of material for sponsors to digest.
The main Rules and Guidance sponsors need to be aware of are as follows:
- Appendix ST: Student and Appendix CS: Child Student replace Tier 4 (General) and Tier 4 (Child) in the Immigration Rules.
- Appendix English Language and Appendix Finance set out specific Rules in relation to those requirements. There is also accompanying web page guidance on the financial requirement and guidance in a PDF document on the English language requirement.
- The Sponsor Guidance, now called Student Sponsor Guidance, has been updated, although it still spans four documents and still imposes broadly the same duties on sponsors. Appendix D has been updated, as has the guidance on issuing a CAS.
- There is currently no equivalent to the Tier 4 Policy guidance for applicants. At the moment, the gov.uk page is directing applicants to the cumbersome guidance for Home Office staff.
There is also some useful guidance on some of the new application processes:
- Living in the UK: applying from within the UK (guidance on the process for making an immigration application in the UK)
- Living in the UK: applying from overseas (guidance on the process for making an immigration application from outside the UK)
- Using the ‘UK Immigration: ID Check’ app (guidance on using the new app)
The government is working on simplifying the Immigration Rules but the new material highlights quite how difficult a task this is. Sponsors may find that the new system is more complicated to navigate than the old for some time.
It remains extremely important that sponsors regularly check that they are discharging the duties set out throughout the Sponsor Guidance and that relevant reports regarding changes to the sponsor, and sponsored students, are up to date.
Are there any significant changes?
Other than the name change, the most significant change is, of course, that from 1 January 2021, EEA students who are newly arrived in the UK and who have not therefore been able to apply under the EU Settlement Scheme, will be issued visas under this system. The Home Office’s position is that visas issued to EU students will, in general, be digital only.
There are also a number of other changes that sponsors need to be aware of and we have highlighted the main ones below.
Switching into the route from a non-Student/Tier 4 visa
There is good news for those who are in the UK with a different type of immigration permission and who want to move into the Student or Child Student route.
Under the old system, other than those who already had a Tier 4 visa (and even then, restrictions were in place), only those who held immigration permission under Tier 2 could make an application to switch into Tier 4 (General).
Now, it is possible for anyone who has permission to be in the UK to switch into the Student route other than:
- Visitors
- Short-term students
- Parent of a Child Student
- Seasonal Worker
- Domestic Worker in a Private Household
- those who hold permission granted outside the Rules or who are on immigration bail.
The above routes are also the only ones restricted from switching into the Child Student route, although in fact, because you have to be under 18 to switch into the Child Student route, only 1, 2 and 6 above are relevant. The other categories are only available to 18s and over.
These switching provisions will make life easier for many students and sponsors and avoid many unnecessary journeys overseas with associated delays.
Longer timeframe to make an application
Students who are outside the UK can make an application up to six months before their course start date. Those applying from inside the UK can apply up to three months before.
If their permission is due to expire, generally it must do so no more than 28 days before the course start date. For example, a person with permission to stay that expires on 1 February 2021 could not expect to make an application on 31 January 2021 for a course that starts on 1 September 2021. They would have to leave the UK and apply from overseas. Someone whose permission expires on 15 August, would be able to apply.
There is currently a temporary concession due to COVID-19 which overrides the 28 day rule. This allows in-country applications to be made where applicants have permission to remain in the UK which is due to expire and where the course will start no later than 31 December 2020.
Changes to the financial requirements
Some of the requirements regarding how students can demonstrate that they can afford to study in the UK have changed and Appendix Finance is dedicated to this.
The most welcome change is that students who are applying from inside the UK and who have lived in the UK with permission to stay for at least 12 months on the date of the application automatically meet the financial requirement. They do not have to provide any further evidence.
There is some concern amongst sponsors we have spoken to that UKVI may be expecting them to carry out enhanced checks on the financial position of students who benefit from the above in lieu of UKVI’s checks.
UKVI has not imposed any new specific requirements on sponsors in this regard. Sponsors have always had to be satisfied, before they assign a CAS, that the student in question ‘intends and is able’ to follow the course of study. This remains in document 2 of the Sponsor Guidance.
In theory, if the sponsor assigned CAS to students who clearly could not afford to study in the UK, this could trigger enforcement action – document 3 of the Sponsor Guidance allows UKVI to take such action where it considers that the sponsor has given it ’cause to believe that you do not or cannot comply with a sponsorship duty….’. But in any event, if significant numbers of students were withdrawn from their courses due to lack of funds, the sponsor risks failing its BCA anyway, so there is an automatic sanction already built into the system.
Sponsors must also ensure that students they sponsor (aged 16+) are ‘genuine’ students. Again, this hasn’t changed.
UKVI can initiate enforcement action if sponsors have not properly assessed academic suitability and/or are operating in a manner which poses a risk to immigration control.
Obviously, it makes good business-sense for education providers to carry out basic checks to ensure international students can afford to study with them and are genuine students who are academically likely to be able to complete the course. Those that do not make any checks at all and who sponsor large numbers of students who turn out not to be genuine students risk enforcement action, but none of this is new.
Students from a country that appears on the ‘Differential evidence requirement’ section of the Rules do not have to submit financial evidence with their application, but they can be asked to do so and must have the funds.
There are fairly significant changes, and in some cases a lack of clarity, regarding the documentary requirements for those student who do need to provide evidence.
English language requirement
Child Student applicants remain exempt from the English language requirement as specified in the Immigration Rules. Of course, if a sponsor’s own requirements are that Child Students must have certain English language skills, they will still need to assess this as part of their duty to assign CAS only if they are satisfied that the student intends and is able to study the course in question.
In relation to the Student route, applicants who have met the English language requirement at the level required in a previous successful immigration application do not have to meet it again. The previous application can be under any part of the Immigration Rules where an assessment of English was required.
Ireland and Malta have been added to the list of countries whose nationals automatically meet the requirement.
Higher Education Providers with a track record of compliance (as defined in the Sponsor Guidance) can still assess the applicant’s English for degree level study and above. The Rules and Guidance now make it clear that the CAS must confirm:
- the method used; and
- that the required B2 level is met in all four components.
Another significant change is that applicants under the Student route can no longer meet the English language requirement by simply having studied with a Tier 4 (Child) visa. Instead, applicants must have a GCSE, A Level, Scottish National Qualification at level 4 or 5 or Scottish Higher or Advanced Higher, in English (language or literature), that was awarded:
- by an Ofqual (or SQA, Qualifications Walks or CCEA) regulated awarding body; and
- following education in a UK school undertaken whilst they were aged under 18.
Academic engagement – new options for Higher Education providers
All student sponsors have always been required to monitor student attendance/absence and take action where required under the Sponsor Guidance.
Document 2 of the Sponsor Guidance now sets out new options for HEPs. The good news is that those adopting the new arrangements will no longer have to obsess about 10 consecutive missed contacts. However, to comply with the new requirements, sponsors will need to have in place a robust policy, applied across the institution for degree level study and above and will need to be able to demonstrate to UKVI, if required, how this is being applied. There are separate provisions for below degree level study.
It has always been the case that sponsors must be able to show how engagement policies are being applied in practice. Many universities have made it clear to UKVI that the previous policy was far too onerous. Whilst the new arrangements may offer a little more flexibility, it is very clear that UKVI still intends to hold sponsors to account on this aspect of sponsorship.
Child Students – living arrangements
Unfortunately the Rules relating to this requirement remain unclear.
The Home Office’s position is that Child Student applicants studying in the UK can only be accommodated in one of the following ways:
- at boarding school
- with a parent or close relative who is British or settled in the UK
- with a private foster carer
- independently if 16 or 17 and they have the consent of their parents/legal guardian.
Unfortunately in our view, the drafting of the new Rules does not make this sufficiently clear. It also used to be the case that children could live with a parent where the above requirements were not met if there were exceptional circumstances. This provision has been removed from the Rules, though it is always possible to ask the Secretary of State to exercise discretion generally.
COVID-19 concessions
On 5 October 2020, UKVI also updated the temporary concessions it applies to international students and their sponsors as a result of the coronavirus pandemic. You can find the updated concessions here.
Conclusion
Some of the changes made, including to the forms, are unexpected and are already creating issues for some sponsors and applicants. It will undoubtedly take sponsors some time to analyse the new Rules and Guidance and adapt their processes and procedures.
Many of the changes are welcome and, over time, we think sponsors and applicants will benefit from them. However, as always with the sponsorship system, failure to implement robust recruitment and monitoring practices can still lead to enforcement action and the basic principal of sponsorship, that sponsors must help to prevent the system from being abused, has not changed.
We will be covering various aspects of the changes in detail over the next few weeks.
If you need legal advice on the new Rules, please contact us or alternatively complete the enquiry form below.
