The United Kingdom Border Agency (UKBA) has announced that it will maintain the current relaxed maintenance requirements for Tier 4 (Student) Migrants applying for leave to remain in the UK until February of 2010. Before it was extended this policy was to have run out on 1 October 2009.

 

The UKBA has also indicated that due to a statement of changes in the Immigration Rules issued in September - students granted entry clearance or leave to remain on or after 5 October 2009 won't be able to change courses after their arrival in the UK to a course provided by a different education provider, without making a further application for leave to remain as a Tier 4 (General) Student referring to the new course.

 

The extended policy relating to maintenance applies to people who are already in the UK with leave to remain as a student.  As well as showing that they have been granted a visa letter or Confirmation of Acceptance for Studies by the college at which they are intending to study - now known as their Sponsor - students also have to show that they possess and have possessed for a stipulated period of time, enough money to pay for the full fees of their courses and to support themselves during the duration of that course.

 

The policy concerns the kind of proof of means which students are required to produce to succeed in their applications further leave to remain (as a Tier 4 (General) Student).

 

As with all applications under the Points Based System - the applicable Immigration Rule itself refers to Appendix C of the Rules, which at the relevant part refers to the published policy guidance.  This is called Tier 4 of the Points Based System - Policy Guidance.

 

So, under the heading: Documents needed to show money available to the student paragraph 133 of the policy guidance states:

 

"Normally when applying for a Tier 4 (General) visa in the United Kingdom, a student must show that he/she has held the money needed for the 28 days. However, we recognise that many students already in the United Kingdom will not have had to show money before so we have agreed to allow a longer transition period for applications made in the United Kingdom to allow for this adjustment. If the General student applies from within the United Kingdom before 1 February 2010 he/she will only need to show proof that he/she has the money needed, on the day that he/she applies." 

 

It's worth noting that a similar kind of concession led to a lot of argument in relation to people applying for leave to remain as a Tier 1 (Post-Study Work) Migrant - please see Gherson's report on the first Points Based System determination issued by the Asylum and Immigration Tribunal - NA & Others (Tier 1 Post-Study Work funds) [2009] UKAIT 00025.

 

The measure to prevent students from changing from one college to another without making a new application for leave to remain in the UK reverses the law from the Court of Appeal's judgment in GOO and Others v Secretary of State for the Home Department [2008] EWCA Civ 747, in which the Court found that - under the Rules which preceded the Tier 4 regime - a student did not breach his or her conditions of leave to enter if he or she changed courses after entering the UK as a student.

 

Needless to say the change in the Rules places students who discover that their educational provider is unsatisfactory after commencing the course and wish to switch to a course at a new college in a dilemma.  The UKBA's announcement offers little consolation for those in such a situation, stating:

 

"We have been asked whether students in this situation will be able to begin studying with the new education provider,at their own risk,before they have received a decision on their application. The UK Border Agency cannot condone a criminal offence,and therefore cannot advise students that this is an option for them. We will make every effort to ensure that applications from students wishing to change education provider are considered within the published service standard,so that they can move to the new education provider as quickly as possible."

 

Anyone seeking to extend their leave to remain as a student under Tier 4, or who is unsure of any aspect of his or her immigration status in the light of these changes, is strongly advised to seek professional legal advice.  Gherson is ideally placed to provide such advice.