January 2010

Yvonne Spencer and Claire Wilkins examine changes to the UK’s immigration system.

It’s now a year since the radical overhaul of the UK’s immigration system began. The change has not been seamless. For independent schools and other education institutions the changes have come in stages and more developments are imminent. Now that schools with migrant workers and/or students are responsible for policing, with potentially serious penalties when things go wrong, they need to ensure full familiarity with developments in immigration.
This article examines the changes to the immigration system that have taken place over the past year, and the effect of these changes on independent schools, including detail of the harsh penalties that apply when a school makes a mistake such as employing an illegal worker. The article will detail the recent amendments to the new immigration system as well as noting the upcoming changes that schools need to be aware of.

The radical overhaul – in summary
The new Australian-style points based immigration system condensed over 80 existing routes to work and study in the UK for people outside of the European Economic Area and Switzerland (referred to in this article as migrants) into five Tiers. Tiers 2 (skilled workers) and 4 (students) are of most relevance to independent schools, but Tiers 1 (highly skilled workers) and 5 (youth mobility scheme and temporary workers) will also be applicable.
In essence the new system means that if a school wishes to recruit migrant workers or gap year students or bring in migrant students, the school needs to apply and pay for a UKBA licence. Currently just over 2000 education institutions (including independent schools, but also other institutions such as FE colleges, universities, and language centres) have been granted a UKBA licence.
Once a school is issued with a licence, they will be given access to the online Sponsorship Management System (SMS). Schools will be able to sponsor migrants via this system by issuing them with Certificates Of Sponsorship (COS) or Certificates of Acceptance for Studies (CAS), which are unique numbers rather than documents. Once a migrant has been issued with a COS or CAS, they can apply for entry clearance (a visa). The individual is then assessed by the UKBA under the points based part of the system.
In order to obtain and maintain a licence schools must carry out several sponsorship duties, which mainly involves strict record keeping, reporting and compliance duties. Breach of these duties may lead to a licence being downgraded or revoked. In addition to this risk, if a school cannot prove they have carried out the necessary checks on potential employees before they start work, they can face fines of up to a maximum of £10,000 for each illegal worker. Schools found to be knowingly employing an illegal immigrant worker may face a new tough criminal offence, with an unlimited fine and/or a maximum of two years imprisonment.

RECENT CHANGES
• Visa Letters to Certificates of Acceptance for Studies
On 5 October 2009, the online SMS for Tier 4 went live. Prior to this date schools have been sponsoring migrant students with Visa Letters. Now, via the SMS, schools will be able to sponsor potential non-EEA students online with an electronic Confirmation of Acceptance of Studies (CAS) rather than by Visa Letter.
Between 5 October 2009 and February 2010 there is a voluntary trial period in which schools can continue to use the current Visa Letter as an alternative to, or in conjunction with, the CAS for prospective students applying from within the UK. Schools will still need to use Visa Letters to sponsor prospective students applying from overseas. From 22 February 2010 schools will no longer be able to use a Visa Letter and will instead need to issue a CAS for all non-EEA prospective students.
Note that if a school uses a CAS, the sponsorship reporting obligations will apply in full in relation to that sponsored student, but where the school uses a Visa Letter, the sponsorship reporting obligations will remain optional, as they currently are.
A CAS is a virtual document that schools will be able to issue online via the SMS to potential students from outside of the EEA in order to sponsor them. The SMS also allows schools to carry out the administrative functions necessary to comply with their sponsor obligations and duties, and communicate information to the UKBA.
The student will then need to use the CAS to apply for a Visa - however, having a CAS issued by a school will not guarantee that the student will be successful in their Visa application.
• Renew your School’s provision of CAS and COS allocations
For those schools which obtained a licence on or before 28 November 2008, your initial allocation of COS and CAS will have expired on 28 November 2009 so it is time to apply to renew your allocation, if you have not done so already. If you obtained a licence after 28 November 2008, you must renew your CAS/COS before the applicable expiry date. If you do not renew, you will be prohibited from sponsoring certain migrant employees and students. The UKBA require that the important dates and deadlines are diarised.
• Students changing schools
When students, sponsored prior to 5 October 2009, wished to change schools, this could be done by notifying the UKBA by email. Under the new immigration rules, which came into force on 5 October 2009, students sponsored after 5 October will be more closely linked to their sponsoring school and a fresh Tier 4 visa application will need to be made from inside of the UK if the student wishes to change schools. If a sponsored student informs you that they are leaving your school to go to a new school, then under your sponsorship duties you are required to notify the UKBA of this. This can be done via the SMS.
• Fingerprint checks
From 30 November 2009, the UKBA began carrying out fingerprint checks at the border for passengers with biometric UK visas, entry clearances and identity cards. On arrival in the UK, these passengers will have their fingerprints scanned at border control in addition to the normal checks. These fingerprints will then be checked against those the passenger gave at the time of application. Schools may wish to mention to incoming migrant students/employees, who have had biometric tests done here in the UK or in their home country, know that they may be required to undergo biometric fingerprint checks on arrival in the UK.
• New Tier 4 Guidance
On 3 December 2009 the UKBA issued an updated Tier 4 Policy Guidance which is available from the UKBA website. This version contains no policy changes but it is important that schools use the most up to date guidance.

UPCOMING CHANGES
• Review
On 12 November Gordon Brown gave a speech on immigration in which he announced a review of the student visa route and plans to tighten the UK’s immigration rules to reduce the number of migrants coming into Britain. The main focus of the review is the general (adult) student visa route which is more directly relevant to FE Colleges and Universities, although of course some older students at independent schools may use this route. The UKBA have stated that this review will not have a negative effect on students coming to study at independent schools in the UK.
• Child Visitor - exchange visits
On 11 January 2010, the Immigration Rules are due to be amended to permit exchange visits by overseas students to UK schools.
• Help is at hand
The multi-layered immigration system can be confusing for schools, and an irksome additional burden for the busy Bursars, Registrars and Heads.

If you require any help or assistance, the education immigration team will be happy to help. Please contact Claire Wilkins on 0117 9252020 or by email cwilkins@vwv.co.uk.