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Tier 4 – to cap or not to cap. That is the question Logo Tier 4 – to cap or not to cap. That is the question

September 19, 2016 | Posted in News

 

“To be capped or not to be capped? That is the question.” The future of Tier 4 and consequences for independent schools

 

by Mark Taylor, Executive Director of The Taylor Partnership.

 

Whilst I pose the question, I suspect that the decision has already been made.

 

Like all large institutions, the Home Office usually introduces change on an evolutionary rather than a revolutionary basis – a gradual move towards a specific aim. The result of the Brexit vote, however, has created a disturbance in the force. On the face of it, why would Brexit have an impact on international student numbers? After all, non EEA students are already subject to immigration control anyway. Surely, therefore, it is the future status of EU students who want to come to the UK that is of greater relevance?

 

Whilst this is an important issue, I believe that it is too narrow an analysis. There are two further significant consequences of Brexit. First, the message that has been sent out to the rest of the world – and how this is being capitalised upon by the UK’s competitors in the international student recruitment market. However one says “Brexit means Brexit” the phrase has an unwelcoming tone. Second, and of yet more strategic importance, is what appears to be a more hastened decision to introduce a cap on the number of all students – including Tier 4. Invoking Article 50 of the Lisbon Treaty is a catalyst not just to visa and immigration issues that engage with the UK’s relationship with the EU but also with a wider national immigration strategy. The pre- Brexit status quo of essentially having two streams – EU and non EU migration – ends. Post Brexit, we will have one stream of migration and one immigration policy. There may be preferential or reciprocal agreements with EU countries – time will tell – but the current two tier system is at an end.

The clues suggesting that international students – from wherever they originate – will be capped have been visible for the last couple of years (more of that later) but it is the most recent comments of the Prime Minister that have given credence to this assessment and suggest that the Home Office is accelerating the process.

At a press conference held at the meeting of the G20, Mrs May stated that: “What the British people voted for on June 23 was to bring some control into the movement of people from the European Union to the UK.”A points-based system does not give you that control.”[1]

Given that post-Brexit means that there can be no distinction between a policy designed to meet EU regulations and non EEA migrants, the words of the Prime Minister resonate across the whole spectrum of UK immigration policy.

The Prime Minister’s understanding of the points based system – unsurprising as one of the longest serving Home Secretaries – is correct. I regularly challenge overseas students and parents who hold the erroneous view that British Embassies or High Commissions somehow discriminate against them when considering their visa applications. They do not. An application made through the points based system (apart from the subjective test of a Tier 4 General student being “a genuine student”) either meets the criteria or it does not. The applications are refused usually because they are poorly presented, are not supported by the correct documentation or both.

The Tier 4 system has no restriction of numbers. UKCISA suggests that there were 436,585 international students attending HEIs in 2014/15[2]. Further: “ISC schools are proud to compete globally and welcome international pupils to their schools; 27,211 pupils are from overseas.”[3] With net migration at 330,000 (and no sign of dropping), any strategy of reducing numbers must inevitably address international students.

 

  • UK Visa and Immigration has been preparing the path for some time:

 

 

  1. There are currently 1,363 Tier 4 sponsors – practically a third of the number following the introduction of Tier 4 in 2009/10. The weeding out of unethical, incompetent and bogus colleges should be welcomed. Whilst the UKVI was busy identifying them and revoking their licences, independent schools with a Tier 4 sponsor status were seen as being low risk. The UKBA – as it was then – often gave considerable leeway to independent schools found to be in breach of their licence. Now – the “bogus colleges” have been stripped of their licences (some, bizarrely, now relying on completely unregulated student visitors) and only a core remain. The UKVIs willingness to adopt a relaxed view to independent schools is waning. I have seen more threats of suspension and revocation to the Tier 4 licences of independent schools this year than in all previous years put together.
  2. Until last year – Tier 4 sponsors were allowed to apply for any reasonable numbers of CAS. If they didn’t use them, they didn’t use them and there was no problem.
  3. No more. Requests for CAS allocation must be justified. If more than 50 CAS are granted by the UKVI, any application for additional numbers within that year will be refused. For those schools seeking to expand their international students – perhaps to fund a long term capital project – a maximum increase of 50% per annum (which must be justified) is permitted. However, if the numbers of CAS granted are unused, the annual allocation may be reduced. An attempt to start reducing numbers?
  4. It has long been the case that Tier 4 sponsors have effectively become immigration officers. Now, yet more so. As the permissible refusal rate is expected to fall from 10% to 5%, more and more independent schools are becoming reliant on the discretion of the UKVI to maintain their licence. This goodwill is unlikely to last indefinitely. Indeed, I have seen UKVI questioning a licence based on the fact that: “It is therefore clear that (the school) should and could have done more to ensure that students were adequately assessed before you assigned CAS to them. You have failed to adhere to your sponsor duties under Paragraph 3.15 of document 3 of the Tier 4 Guidance for Sponsors….”[4] Is this a deliberate strategy of reducing Tier 4 sponsors yet further?
  5. Many independent schools still believe that their role is to simply issue the CAS and pass it to the agents, parents or student who are responsible for making the application. Where this is the case and the school is not being pro-active in assessing visa application compliance before issuing the CAS, the Tier 4 licence is at risk.
  6. This is especially so as the UKVI has introduced a subtle change to the Basic Compliance Assessment. Previously, where a visa application was refused but then succeeded following the issuance of a second CAS, the initial refusal did not count in the refusal rate assessment. Now it does. A refusal means refusal. It is the poor management of visa applications and failure to effectively manage CAS that will lead to an increasingly unsympathetic hearing from the UKVI.
  7. One by-product of is that there must be a new relationship between the Tier 4 sponsor and educational agent. Previously granted free rein – many agents are extremely competent – but the school must know what pre-CAS issuance checks are being made by the agent, if the school are not doing them themselves.
  8. The increased relevance of the connection between educational oversight and the UKVI – accompanied by an inconsistency of application of the rules – has caused considerable discomfort to some schools this year. Any failure to meet National Minimum Standards can lead to the freezing of CAS. Reinstatement of the licence  will only occur when the school has been re-inspected. The UKVI has agreed to act only in cases where there is a serious breach of any National Minimum Standard. The assessment of what is serious and what is not rests with the discretion of the UKVI.
  • What is the impact on schools?

 

 

  1. My experience suggests that the strategic decision makers in schools are not, on the whole, aware of the changes to the Tier 4 system. Business planning and decisions are being made without a risk assessment that properly includes Tier 4. The annual request for CAS allowance is becoming increasingly scientific.
  2. How will schools manage a forced cap on numbers? Some schools may actually benefit. For others, there may be little change. However, for the bulk of independent schools – already competing in a tough market – the prospect of a cap on numbers may be a significant challenge.
  3. The up-shot of some current thinking within UKVI is that educational institutions of all kinds should have business plans that are less reliant on the income from overseas students.
  4. The commercial relationship between schools and agents – crucial for many schools – will need to be carefully managed: ensuring that they appreciate the compliance regime of Tier 4 sponsors; co-operate with pre-CAS issuance documentary checks; and the need to rely more on Administrative Reviews where a visa application decision is refused on erroneous grounds rather than simply making a new application with a new CAS.
  • What should schools do?

 

 

  1. Restrict the possibility of falling foul of the UKVI by ensuring that Tier 4 compliance regimes are properly resourced.
  2. Rationalise costs. I am always surprised to see schools in close proximity to each other do not share costs – for example grounds maintenance, HR, bursary, shared recruitment and shared costs of travel. I appreciate that schools need to compete but there are many that could work in partnership.
  3. Industry led responses – rather than a UKVI imposed fait accompli – must be the solution. Now is the time to lobby the UKVI.

Amidst the debate about and government prioritising Brexit, the argument that British education is a major export industry for the UK has been lost somewhere. If Tier 4 Sponsors can be sure that their houses are in order, the time to resurrect that debate has well and truly come.

 

 

Mark Taylor

mark@ttplaw.co.uk

 

 

 

 

[1] http://news.sky.com/story/pm-theresa-may-rejects-points-based-immigration-system-10564973

[2] http://institutions.ukcisa.org.uk//info-for-universities-colleges–schools/policy-research–statistics/research–statistics/international-students-in-uk-he/

[3] https://www.isc.co.uk/media/2661/isc_census_2015_final.pdf

[4] Recent UKVI letter to Tier 4 sponsor


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