The government recently published information about arrangements for EU citizens who move to the UK after the UK leaves the EU in the event of a no-deal Brexit. The proposals would mean that EU (and EEA) national children who move to the UK between the date the UK leaves the EU and January 2021, when the UK’s new immigration system is due to come into effect, would be free from any immigration restrictions on study. (Those staying in the UK for more than three months would need to obtain European Temporary Leave to Remain).

In other words, there would be no immediate significant changes to study opportunities. But the proposals for the new 2021 immigration system are far more significant for UK schools. According to the government’s white paper, published just before Christmas, only private schools will be able to sponsor EU children who come to the UK for their schooling from January 2021. 

The current immigration system for UK schools

Under the UK’s current immigration system, only private schools (also known as independent schools) are able to hold a Tier 4 sponsor licence and sponsor non-EU students.

The Home Office maintains a list of all education providers that hold such a licence.

Non-EEA school age children who have a non-Tier 4 visa that allows study are not restricted to independent schools. For example, a child who has a dependant visa because one of their parents has leave to remain under Tier 2 can attend any school.

The difference is that a non-EU child who is coming to the UK solely for private schooling and who needs a Tier 4 visa is only permitted, under the terms of that visa, to attend an independent school that has a Tier 4 sponsor licence.

Potentially huge shift for schools

The new proposals are expressed in fairly basic terms in the immigration white paper:

It is the Government’s intention that the same checks will apply to students from the EEA. All students coming to the UK under the future system will be sponsored by the institution at which they are studying, as is currently the case for non-EEA students. We recognise that this will increase the volume of students whom institutions will need to sponsor.

In relation to students under the age of 18, it goes on to say that “we will continue to welcome international students who want to study at independent schools in the UK, building on the existing route for international students under the age of 18 to include EU citizens”.

These proposals mean that, from 2021, independent schools that currently teach EU students but don’t have any need for a sponsor licence (because they do not recruit non-EU students) would need to apply for one. This is if they want to continue to recruit students from the EU.

The vast majority of schools are not private. From 2021, the proposed changes would mean that they would be likely to see fewer EU students commencing studies with them. This is because they will not be able to offer sponsorship to EU students. (The admissions procedures for state-funded schools are complex in relation to immigration law and can be found here.)

A staged approach

It will take some time for these changes to show. EU citizens and their family members, including children, who are living in the UK before the UK leaves the EU are able to apply for EU “settled status”. There are no restrictions on work or study. Nath has written a detailed explanation of who can apply for this status. The settled status application scheme will go ahead whether or not there is a Brexit withdrawal deal with the EU.

But for EU citizens who do not already live in the UK, the system will be different depending on the outcome of the Brexit negotiations. If there is no deal, EU citizens who move to the UK after 29 March 2019 will be entitled to come to the UK for an initial period of up to three months and will then be able to apply for European Temporary Leave to Remain. More information about this is in Chris’s post here. If there is a deal, the current system of free movement would carry on until 2021.

Sponsor compliance from 2021

Tier 4 sponsors currently have to comply with a plethora of rules and regulations that are contained in the Tier 4 of the Points Based System: Guidance for Sponsors. There are three documents in this set of guidance (plus another for higher education providers) running to approximately 200 pages. It’s usually updated at least twice a year.

The government has said that it will continue to require providers to be compliant but will also look at how to create a lighter-touch system:

Whilst we will continue to monitor carefully the compliance of all sponsors and take robust action where sponsors fail to meet the minimum standard, we will also consider ways in which the sponsorship system can be streamlined and made more ‘light-touch’. This will include the development of a new digital system, and engagement with the sector.

I have acted for independent schools and universities since the Tier 4 system first began in 2009, preparing them for Home Office audits and defending them when the Home Office has suspended or revoked the licence. The majority of issues that I have dealt with have arisen through a misunderstanding or misinterpretation of the rules. It is essential that the system is significantly simplified.

I’ve previously covered the difficulties Tier 2 sponsors have to contend with and it’s a similar picture for Tier 4 sponsors.

What should schools and their representative organisations be doing?

The proposals are at a very early stage and are therefore not set in stone.

It is therefore important that schools and their representative bodies engage with the government now on the specific design of the new system.

In the meantime, I would be encouraging schools that have a sponsor licence, or will need one under the new system, to review their approach to immigration compliance as obtaining and retaining a licence looks set to become more important.