1. Students with Uncertain Immigration Status Joe Middleton Doughty Street Chambers j.middleton@doughtystreet.co.uk ARC Home Office Practitioners Group 7 March 2014

2. London Metropolitan University to launch legal action against UK Border Agency The Government revoked London Met's highly- trusted status (HTS) for sponsoring international students last week after it found more than a quarter of a sample of students studying at the university did not even have permission to stay in the country. Daily Telegraph, 4 September 2012

3. The new T4 sponsor obligation Tier 4 Sponsor Guidance (T4SG) sets out sponsor obligations. Failure to comply  suspension/revocation of licence. Under T4SG, focus has been on sponsored students: o qualifications o English o attendance etc. But see now, since October 2013:

4. “513. In addition to your duties as a Tier 4 sponsor, you are expected to contribute to supporting immigration control. In particular, you must take reasonable steps to ensure that every student at your institution has permission to be in the UK. Failure to do this may lead to the revocation of your license [sic.]”... (T4SG, v.12/13)

5. “... 604. We will consider revoking your licence for the following reasons:... (t) we find, upon inspection that you have students studying at your institution without valid permission to be in the UK. 605. We may not always revoke your licence in the circumstances above. Whilst we cannot precisely define the exceptional circumstances in which we will not, this decision will be based on such factors as the number of breaches, previous history and the efforts you have made to address these issues. However, we may immediately suspend it...”

6.  On the face of it, T4 sponsors now have a new obligation to ensure that every student (not just every sponsored student) has “valid permission to be in the UK”.  If students are identified who have no immigration status, licence will be revoked unless there are “exceptional circumstances” (no reference here to “reasonable steps”). Compare illegal working penalties for employers and similar proposed obligations for landlords.

7. New obligation: very badly thought out; on face of it creates enormous new burdens for sponsors; applies to all your existing students, not just new students; and raises many obvious and serious questions:

8.  What “reasonable steps” are you expected to take?  Are you expected to conduct checks of all students similar to the checks for illegal working?  If so, what evidence are you entitled to accept? What “excuses” will you have?

9.  What reasonable steps are you supposed to take that are not discriminatory/offensive? “You look/sound like a foreigner to me: show me your passport.”  What clarification have you sought from HO on this?  What changes are you making to your systems to ensure that “reasonable steps” are taken to check immigration status of all your students?

10. Scope of the new obligation Who are people “without valid permission to be in the UK”? o illegal entrants; o overstayers; and (perhaps) o those studying in breach of a condition.

11. Illegal Entrants Generally: entered UK illegally. Never had permission to be here. How to spot: non-EEA passport; contains no UK visa or EEA residence document (EEA residence document must be one issued in UK).

12. Overstayers Had permission to be here (leave to enter or remain) but their leave has now expired. How to spot: holds non-EEA passport and either UK visa or EEA residence document, but expiry date on most recent visa/residence document has passed. But subject to 2 qualifications re (i) section 3C Immigration Act 1971 and (ii) EU law.

13. (i) Section 3C Immigration Act 1971 An application for further leave to remain in the UK is an application for “variation” of leave. A person who makes a valid application for variation of his leave before it expires continues to enjoy that leave (has “statutory leave”) while his application is being considered: s.3C Immigration Act 1971. That person is not then an overstayer and has valid permission to be in UK.

14. Statutory leave continues until a decision is made and during any subsequent appeal process. Statutory leave is subject to same conditions, if any, as the leave being extended. If you really are expected to know which of your students have valid permission to be in the UK, you need to know all this and much more.

15. (ii) EU law right to reside EU nationals exercising Treaty rights (working, studying etc.) have right to reside in UK. Right is direct: it is not subject to any decision taken by HO. EEA residence document is merely evidence of right. Direct family members (spouse, civil partner, children) have right to reside with EEA national, whatever nationality the family member holds. Their right to reside is also direct and not subject to any decision taken by HO.

16. Other family members (“extended family members”) also have a right to reside, but their right is subject to discretion of HO. A person who acquires a right to reside under EU law before his visa expires is not an overstayer thereafter and has valid permission to be in the UK. If you are expected to know which of your students have valid permission to be in the UK, you need to know all this and much more.

17. Breach of condition Leave to enter or remain may be subject to conditions, e.g. “no employment” or “no study”. Breach of a condition is a ground for HO to curtail a person’s leave. But leave is not automatically invalidated by a breach of condition. So a person with valid leave studying in breach of a “no study” condition is not a person “without valid permission to be in the UK”. But perhaps T4SG meant to include such people too.

18. Example 1: Arthur Arthur, a US national, is one of your non-T4 students. He is a dependant (adult child) of a Tier 1 investor. As such, he is free to work, study or whatever. According to his visa, Arthur’s leave expires on 5 March 2014...

19. On 6 March 2014 Arthur becomes an overstayer, i.e. a person “without valid permission to be in the UK”, unless:  he made a valid application to extend his leave, in the same or different category, on or before 5 March; or  he has some other basis for remaining in the UK (e.g. married an EEA national working in UK). If you allow Arthur to continue his studies after 5 March and nothing of this kind apples, you will be in breach of your T4 sponsor obligation. Per T4SG, you are at risk of revocation.

20. Example 2: Alice Alice, a Canadian national, is one of your T4 students. She has a T4 visa with an expiry date of 5 March 2014. On that date she submits a valid application for further leave to remain in T4. From 6 March 2014 Alice has statutory leave as a T4 student. She is not a student “studying at your institution without valid permission to be in the UK”.

21. Example 3: Alice v.2 On 5 March Alice reassures you that she’s applied for an extension of her T4 leave, just before it expired. She provides a copy of her application form and proof of posting. You allow her to continue her studies. A month later she tells you that her application has been returned as invalid because of a problem with the processing of her payment. She has resubmitted the application making sure that the payment is effective.

22. The fact that Alice’s original application was invalid means that Alice has no section 3C statutory leave. She has been an overstayer since 6 March. Alice is someone “studying at your institution without valid permission to be in the UK”. You may argue that you have taken reasonable steps, but on the face of it you are in breach of a sponsor obligation. You are at risk of having your licence revoked even if you stop Alice from continuing with her studies.

23. Evidential problems If Alice made a valid in time application she has statutory leave. But she may not get confirmation from HO that her application was valid and in time until much later. In meantime, you may be acting unfairly and in breach of contract if, fearing for your sponsor licence, you prevent her from continuing her studies.

24. HO is not offering a student checking service (similar to the employee checking service) so that sponsors can find out whether students have valid permission to be in the UK. There’s nothing in T4SG to suggest that HO has given any thought to these issues.

25. Asylum claimants Michael is a Zimbabwean national. His T4 leave expires on 25 March 2014. On 5 March he tells you he wants to claim asylum because the situation at home has deteriorated. For basic information on asylum claims he should consult the UKVI website (GOV.UK). But he needs to get specialist immigration advice asap.

26. To claim asylum he will have to go to the Asylum Screening Unit in Croydon. Any delay in claiming asylum may undermine his claim, so he should make his claim sooner rather than later. Once Michael claims asylum he is liable to detention if his case is considered suitable. Ensuring this doesn’t happen is part of the role of a competent immigration adviser. If the HO accept his claim, he will be granted 5 years’ leave to remain. No separate application is needed.

27. An asylum claim probably constitutes an application for variation of leave. On that analysis, if Michael claims asylum before his leave expires on 25 March, he will continue to have T4 statutory leave after that date. So if he continues with his studies, he will not be “studying at your institution without valid permission to be in the UK”.

28. If Michael claims asylum after his leave expires on 25 March, he won’t have statutory leave under section 3C. Strictly speaking he will be someone without valid permission to be in the UK. But as an asylum claimant, he cannot be removed from the UK until his claim has been finally decided (together with any appeal). HO might regard him as a person without valid permission to be in the UK and take action against the sponsor if his studies continue, but the risk is probably low.

29. ILR letter People granted indefinite leave to remain (ILR – colloquially, permanent residence) were previously issued with a letter to confirm that status. ILR is never subject to restrictions on work, study or anything else. So a person with ILR has valid permission to be in the UK and is free to study here.

30. ILR letter is adequate evidence of entitlement to work (when produced with evidence of NINO), so should be adequate evidence that holder has valid permission to be in UK for T4 sponsor purposes. If there’s no reason to question validity of letter, there’s no apparent reason to question student’s permission to be in UK. But forgeries are not unknown. If letter looks odd, clarification might be sought from HO.