The Independent Chief Inspector of Borders and Immigration (ICIBI) is to inspect the relationship between the immigration system and the higher education sector. The call for evidence, which is open until 15 November 2021, confirms that the ICIBI will adopt a “broad perspective”, assessing the extent to which the Home Office supports the objectives laid out in the government’s International Education Strategy. 

Inspection topics include:

• the efficiency and effectiveness of the post-EU exit points-based immigration system for international students and staff…
• the fitness for purpose of the Home Office’s licencing system for visa sponsorship, including compliance requirements
• the availability and usefulness to the higher education sector of guidance for study and work applications…
• the competitiveness of the UK’s immigration “offer” to international students and staff, including such considerations as: cost, ease of navigating the system, accessibility for dependents, and availability of post-study immigration routes…

The ICIBI has asked for feedback on “what is working well and what could be improved”. Here are some thoughts.

A decade of compliance gone mad

The sponsor licencing system review, which takes in compliance requirements, is particularly welcome. The sector has been subject to a burdensome set of immigration compliance requirements for almost a decade now. 

This stems from the 2012 decision to revoke the sponsor licence of London Metropolitan University. I was tasked with leading that institution’s defence and witnessed at first hand the shockwaves that rippled through the sector. 

When a licence is revoked, suspended or even restricted, the financial and reputational impact of the institution suffers an almost immediate hit. Students and agents around the world very quickly start to complain that their visa applications have been placed on hold and students already studying at the institutions start to panic. 

Where there are serious abuses of the immigration system, very few would argue that such sanctions are excessive. But the UK’s universities are not in the business of seriously abusing the immigration system — their role is to ensure that the UK continues to offer a world-class higher education system.  

Basically everything needs reported

Very few outside university compliance teams (and I feel your pain guys) appreciate the level of reporting and other duties that must be complied with day in, day out. Consider the following case study.

The University of Intelligence (UOI) has 6,000 international students, 5,000 of whom it currently sponsors. Each year it assigns around 2,500 Confirmations of Acceptance for Studies (CAS) to new students and students who need to extend their stay in the UK. That might be to study a new course or re-sit exams, for example.  

The Home Office expects UOI to track each sponsored student from the minute the CAS is assigned until the date they complete their course. In practice, this means that UOI has to ensure that it has enough staff to keep tabs on whether each student has applied for a visa and, if so, the outcome of that application. If the visa application is refused, regardless of the reason, UOI will commit a breach of the sponsor duties if the refusal isn’t reported via the Sponsor Management System within ten working days — even though the Home Office knows that the visa has been refused because it made the decision.

The Home Office also doesn’t allow sponsors access to its records regarding the students they sponsor, so UOI’s staff have to check in with each student on a regular basis to find out the status of their application.  

At the point when the CAS is assigned, UOI must ensure that it accurately records the course, the course dates, the basis for sponsorship, the main teaching location, additional locations and work placement information. Inaccuracies are deemed a breach of the sponsor duties. I’ve recently seen a university pulled up for failing to note on the CAS that a particular student would complete a short pre-sessional course at the university before their main course — they go into that much detail…

If the student’s visa application takes too long to be processed, or their flight is delayed, and they miss their start date as recorded on the CAS, UOI’s compliance team will have to withdraw sponsorship. It’s a breach of the sponsor duties if they don’t. 

When sponsored students arrive, UOI’s compliance team needs to ensure they enrol and provide a number of documents referred to in Appendix D of the sponsor guidance.

If the student decides they’ve chosen the wrong course and wishes to change it, UOI’s compliance team will need to ensure that an “academic progression” assessment is made and report the change within ten working days.

Other potential breaches of the sponsor duties include:

• not reporting within ten working days if there are other changes to the course (location, duration, etc);
• not reporting within ten working days if the student commences or finishes a work placement;
• not reporting within ten working days if the student commences or finishes a period of study abroad;
• not reporting within ten working days if the student defers their studies (and not withdrawing sponsorship if the deferral will be a long one);
• not reporting within ten working days if the student is permanently withdrawn from their course;
• not reporting a change of an authorising officer or key contact within 20 working days;
• not reporting a relevant sale/merger/acquisition within 20 working days;
• failing to apply for permission for a new teaching site or partnership (before teaching commences) and failing to report within 20 working days when an arrangement for a teaching site or partnership ends;
• failing to provide a list of agents used in the recruitment of international students;
• failing to keep a record of the student’s contact details during their time with the university (current and historical).

And so on, and on. The sponsorship duties guidance runs to 104 pages (with another 23 pages on possible sanctions). Imagine having to keep on top of this for thousands of students and a massive institution.

Monitor your students, or else

Not only are there a hideous set of reporting requirements, but universities also have to have robust policies in place to monitor the attendance, absence and engagement of the students they sponsor, and report if students are not engaging sufficiently. 

During an audit, the notorious Higher Education Assurance Team (who are actually quite lovely in person) will pore over timetables, attendance logs, absence records, policies and procedures. If they do not consider them to be strong enough, the university will be given a warning to enhance monitoring.

There is also a specific requirement to report if “you suspect that a student is not a genuine student”.

Unhelpfully, “genuine” is not defined. But, for example, the Home Office would expect a university to report if it found one of its students had worked 22 hours a week in Tesco during term-time instead of the permitted 20 hours. This would apply even if the student is the brightest academic star the faculty has ever known with 100% attendance.

The courts won’t help

I’m often told, usually by vice-chancellors, that the courts will put right any overly aggressive compliance enforcement. 

Unfortunately that’s not what we’ve seen in practice. 

The leading case on this is R (New London College Ltd) v Secretary of State for the Home Department [2013] UKSC 51. The Supreme Court held that the Home Office was lawfully entitled to set out the rules of sponsorship in lengthy guidance documents:

The rules contained in the… Guidance for determining whether applicants are suitable to be sponsoring institutions are in reality conditions of participation and sponsors seeking the advantages of a licence cannot complain if they are required to adhere to them.

Quoting this passage, which I tend to do early on if there are indications that sponsor compliance is not being taken seriously enough, tends to focus minds in the senior management team.  

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Although the Home Secretary does not have to act on an ICIBI report, this call for evidence is a good opportunity to explain exactly how complicated student visa sponsorship has become. Even a few steps towards a simpler system could make a huge difference to immigration compliance teams.