Yet more changes to the Immigration Rules have been laid before Parliament. Most of the changes will come into force on 4 July 2011 (although there are various amendments to the regime governing the requirements to be met by those wishing to study certain technology courses which will not come into force until 11 October 2011).
The bulk of these changes, contained in Statement of Changes in the Immigration Rules HC 1148, will affect people wishing to study in the United Kingdom and their family members, as well as the institutions at which they wish to study. The changes represent the second phase of the coalition government's revision of the regime which comprises Tier 4 of the points based system, which it set out in its Student visas statement of intent and transitional measures of March of this year. The first set of changes - Statement of Changes in the Immigration Rules HC 908 - came into force on April 21 2011.
Also included however, and with effect only a few weeks away, are Immigration Rules which for the first time list the requirements to be met by family members, other than their spouses or civil partners and their children who wish to reunite with refugees in the UK.
Background to the Tier 4 Regime
Like all the Immigration Rules, the Tier 4 regime (and these changes to it) has no application to people who come from the countries comprising the European Economic Area (the countries comprising the European Union together with Norway, Iceland, Liechtenstein and Switzerland). Nationals of these “EEA countries” and their family members are instead subject to the requirements of the Immigration (European Economic Area) Regulations 2006.
The Tier 4 regime requires anyone from outside the EEA who wishes to study in the UK to be “sponsored” by a college which has been given a Tier 4 licence by the United Kingdom Border Agency (UKBA). Colleges which successfully apply for a licence become Tier 4 licensed Sponsors. The UKBA grades Tier 4 Sponsors as, in descending order: “Highly Trusted”, “A Trusted” and “B (Sponsor)”. Licensed Sponsors are listed on the UKBA's on-line Register of Tier 4 Licensed Sponsors.
The criteria under which colleges get a Tier 4 Licence and their duties to the UKBA if they are successful in their applications for a licence are set out in the UKBA's Tier 4 Sponsorship Licensing Guidance. A central criterion is “accreditation” by a recognised educational body.
Until April 2011 accreditation was provided by a range of bodies specially authorised for the purpose by the UKBA. Now accreditation is to be provided by organisations more naturally associated with the assessment of academic institutions, such as Ofsted, the Education and Training inspectorate and the Quality Assurance Agency for Higher Education.
Tier 4 Sponsors issue those wishing to study with them with a Certificate of Acceptance for Studies (CAS). Holding a CAS from a licensed Tier 4 Sponsor is a requirement for any application for a visa to come to the UK (known as Entry Clearance) or for permission to extend a person's stay in the UK as a Tier 4 (General) Migrant.
Changes to Tier 4
By the first phase of changes, effective from April of 2011, the government first of all imposed new restrictions on Tier 4 Sponsors.
These were as follows:
- New sponsors not already on the Tier 4 register must meet the new educational accreditation criteria in order to be issued a Tier 4 licence.
- For an interim period colleges already holding Tier 4 Sponsor licences are made subject to a limit on the number of students they are allowed to sponsor unless they already have Highly Trusted Sponsor status and meet the new accreditation criteria. The interim period is from 21 April 2011 to 5 April 2012. During this period Sponsors can only issue as many Certificates of Acceptance for Studies as were used between 1 March 2010 and 28 February 2011 and which resulted in the applicant's being granted entry clearance, leave to enter or leave to remain in the UK.
- Complex calculations were to be applied to the calculation of numbers of CASs which could be issued by Tier 4 Sponsors who were not licensed during this period, or who only had their licence for a part of it.
- B rated Sponsors are not allowed to issue CASs for any new courses. The only CASs they can issue are in respect of applications for entry clearance or for leave to remain for “completion of a course already commenced by way of re-sitting examinations or repeating a module of a course”.
The upshot of these requirements is effectively to require all existing Tier 4 Sponsors to apply for Highly Trusted Sponsor Status in order to remain operational in the sense of being able to provide courses for non-EEA students and to revoke and replace the existing form of accreditation.
The April 2011 changes also imposed new minimum standards for proficiency in English language upon students. Tier 4 Sponsors providing courses at degree level or above now have to ensure that students were proficient in English at level B2 of the Common European Framework of Reference (CEFR) for languages. Likewise students studying at below degree level have to demonstrate their proficiency at level B1 of the CEFR. (What a level of proficiency at B2 actually amounts to was considered by the UK's Administrative Court in the course of last year's judgment in
English UK Ltd, R (on the application of) v Secretary of State for the Home Department [2010] EWHC 1726 (Admin).
Changes effective from 4 July 2011
While the focus of the April 2011 changes was upon Tier 4 Sponsors, it is students themselves who are affected by the second phase of the government's programme.
The changes are as follows:
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Unless their work is part of a course-related work placement students are currently allowed to work for 20 hours per week if they are studying at degree level or above, and for 10 hours per week if they are studying below degree level. There is no restriction on their working in the holidays. From 4 July 2011 only students studying at publicly funded colleges will be allowed to work at all. For them, as before, they will be allowed to work for 20 hours if they are studying at degree level and only for 10 hours if they are studying below degree level. As before there will be no restriction on their working during the holidays.
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There are also to be substantial restrictions on the entitlement of people studying in the UK to be joined by members of their family. At the moment any Tier 4 (General) Migrant whose course is longer than 6 months can “sponsor” his or her spouse, civil partner, same sex partner or children to join them in the UK for the duration of the Tier 4 (General) Migrant's leave to remain. From 4 July 2011 the entitlement of those studying for 6 months to be joined by their family members will be limited to students who are being sponsored by their own or the UK government. For everyone else, only those studying for 12 months or more, and on a course at level 7 of the National Vocational Framework – (i.e. at Masters' degree level) - will be allowed to be joined by their families. Only those family members will be allowed to work.
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Applicants from Argentina, Australia, British National Overseas, Brunei, Canada, Chile, Croatia, Hong Kong, Japan, New Zealand, Singapore, South Korea, Taiwan, Trinidad and Tobago, and the United States of America who are attending courses provided by Highly Trusted Sponsors will not have to provide the documents specified in the Tier 4 Policy guidance. The UKBA has decided that these countries are “low risk”.
As indicated above there are also some changes to the Academic Technology Approval Scheme (ATAS). Rules made under this scheme relate to the transfer of skills which ostensibly could be used for in weapons of mass destruction. Some new courses are added to the list at Appendix A to the Immigration Rules for which a certificate issued by the Counter-Proliferation Department of the Foreign and Commonwealth Office is required.
Those changes complete the second phase of the government's promised revision of Tier 4. As indicated in earlier posts on this site however, there is more to come – notably the abolition of the Tier 1 (Post-Study Work) route from April of 2012. From then it will only be possible for graduates to remain in the UK if they qualify under Tier 2 of the points based system.
Statement of changes in the Immigration Rules HC 1148 however also transfers the UKBA's long-standing policy relating to the admission of dependant family members of refugees (and people granted humanitarian protection in the UK) who are not their spouses, civil or same sex partners or their children from the policy section of the UKBA site to the Immigration Rules themselves.
In doing so the government has made the test for admission for such people far more stringent. Under the policy, they could be admitted if there were “compelling, compassionate circumstances". This was interpreted by the Court of Appeal to mean: “reasons which would compel, not merely invite, an objective decision-maker to feel compassion”.
Now if they are adults people in this category will have to show that they are “living alone in the most exceptional compassionate circumstances” – the same test which is contained in Rule 317 of the Immigration Rules. If they are children they will have to show that there are: "serious and compelling family or other considerations which make exclusion of the child undesirable and suitable arrangements have been made for the child's care."
Moreover they will have to be able to show that they can be maintained and accommodated without recourse to public funds. They never had to do this before.
There is effectively no distinction between these new Immigration Rules and those relating to the admission of dependant relatives and children seeking to join people who are not their spouses or their parents. No concession whatever is made either to the likelihood that in such circumstances it is persecution or the threat of it which has caused the family to be fragmented, or that it is the fear of such persecution which prevents the family from living together in the country from which the visa to come to the UK is sought.
The increasingly complex and stringent nature of the Tier 4 regime means that anyone seeking to study in the UK or to join a relative who is studying here should obtain professional legal advice prior to making any application to the UKBA.
Similarly with the withdrawal of the concession relating to the dependant but not immediate family members of refugees and people granted humanitarian protection in the UK, it is essential that professional legal advice is obtained to ensure that where they are available compelling arguments relating to the human rights of all affected are made in support of applications where the object is the reunification of the family.