Transcript LockeLord Sponsor Requirements

UKBA Tier 4 Sponsor Requirements and
Obligations
Sarah Linton, July 2013
Locke Lord (UK) LLP
201 Bishopsgate
London EC2M 3AB
Introduction
• UKBA is taking a hard line with Tier 2 (employees) and
Tier 4 (students) sponsors
• Failure to comply with sponsor licence duties will lead to
UKBA taking action
• Failure to comply may lead to revocation and downgrade
of licence, preventing sponsorship of international
students
• If UKBA suspends or revokes a licence, there is no right
of appeal (although there may be a judicial review
remedy)
• UKBA can conduct unannounced visits
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Consequence of non-compliance
• Prepare for worst case scenario
• Suspension of licence:
– UKBA must provide reasons for the suspension and
suggest a plan of action. There is a penalty fine of £1,000
– Institute would not be able to assign certificate of
sponsorship if the licence is suspended
• Revocation of licence
– There is no appeal process. The case is forwarded to the
Home Secretary; Judicial Review
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General responsibilities of Tier 4
(General) Sponsors
• Verify the student’s suitability to be sponsored for the courses
• Comply with record keeping duties for sponsored students.
Documents that must be held on sponsored students’ files (either
physically or electronically) are listed in UKBA guidance document
Appendix D
• Adhere to reporting duties via Sponsor Management System. Must
report most events (see below) in 10 working days
• Ensure that any changes to the key licence personnel are reported
to UKBA e.g. change in Authorising Officer
• Monitor sponsored students’ attendance and academic progress
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How can universities prepare for a
UKBA audit?
• UKBA can conduct an unannounced audit at any time
• Aim of Audit:
– UKBA will assess if a sponsor is carrying out its
sponsor duties
– UKBA will assess five individual areas of a sponsor’s
administration processes:
1.
2.
3.
4.
5.
monitoring immigration status and preventing illegal recruitment
maintaining migrant contact details
record keeping
migrant tracking and monitoring
student recruitment practices
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What will UKBA check?
• Proof that the institution has been inspected, audited or
reviewed by one of the appropriate bodies listed below:
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Quality Assurance Agency for Higher Education
The Bridge Schools Inspectorate
Education Scotland
Education and Training Inspectorate
Ofsted
Schools Inspection Services
Estyn
Independent Schools Inspectorate
• May check planning permission or local planning
authority consent to operate the type/class of business
functioning at the address
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What will UKBA check?
• Sponsor must ensure that all relevant Appendix D documentation
is kept and maintained up to date
• Keeping documents:
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Passport
Visa stamps
Biometric Resident Permit
Record of student’s absence/attendance. This may be kept either
electronically or manually
A history of student’s contact details (residential address, telephone number,
mobile telephone number). This must be updated regularly [Note: although
UKBA does not require a sponsor to keep personal email address of
students, if the sponsor has one, this record should also be included.]
(If applicable) academic technology approval scheme (ATAS) clearance
certificate
(If applicable) details of private foster care arrangement for child students
Evidence used to obtain an offer (eg. copies of references, examination
certificate, etc)
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Other information you must retain/report
• You must tell UKBA if anything you have reported through the
sponsorship management system is incorrect and why it is
incorrect
• You must retain information in your own records about any
appeal which a student makes against refusal of leave
decisions. If a student’s appeal is successful and leave is
granted, you must tell UKBA if his/her start date is delayed
and provide a new enrolment date
• You must give UKBA details of any third party, in the UK or
another country, that helped the institution to recruit
international students. [Note: UKBA may contact these agents
as part of the audit process.]
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What will UKBA check?
• UKBA is entitled to request other documents, these may
include:
– Student recruitment or admission practices and procedures
– International Student Prospectus/Student handbook/fee assessment
criteria
– Letters sent to applicants and students as part of the recruitment
process
– Procedures for student suspension and withdrawal of studies
– Statement of student responsibilities
– Lecture and seminar timetables
– Examination details and results
• Documents can be kept either electronically or on paper
• UKBA is entitled to take documents or student files after
the audit for further investigation
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What to expect on the day of a
Tier 4 inspection
• UKBA may:
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Interview staff
Check documents
Monitor immigration status
Migrant tracking and monitoring
Interview students
• Identify key staff who will be involved in an audit
• Plan what evidence to be provided to UKBA to address
compliance
• Cooperate with UKBA at all times (e.g. allow access to
any site, whether visits are prearranged or
unannounced, comply with requests for information, etc)
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Reporting responsibilities
• What should a sponsor report?
– Students who do not enrol for their courses
– Student contact stops (i.e. absent without permission for a
significant period of time)
– Students who withdraw from or defer their courses*
– Sponsorship ending for other reasons (e.g. move to
another school)*
– Significant change in circumstances of sponsor or students
*Note: If sponsor reports these events, it must also
report the last recorded residential address and
contact number of students.
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Reporting responsibilities
• Accurate and prompt reporting of student activity
is essential for “Highly Trusted Sponsor” (HTS)
status
• Sponsors must report on all Tier 4 students that
they sponsor even if they are:
– on a course (including a pre-study course) at a
partner institution or a branch named on their CAS; or
– doing a work placement forming part of their course
• Need to regularly communicate with placement
providers to ensure student attendance
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Reporting responsibilities
In general, time spent on work placement cannot
exceed:
• 33 per cent of the total length of the course
• 50 per cent of the total length of the course where the
course is at or above NQF/QCF 6 or SCQF 9 level and
takes place at a higher education institution or where the
course forms part of a study abroad programme
• 50 per cent where the student is sponsored under Tier 4
(Child) and is aged 16 or above
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Monitoring Attendance
• Must continually monitor student attendance and
identify when a student has missed 10
consecutive expected contacts
• Must inform UKBA if a student does not attend
10 consecutive expected contacts and you have
withdrawn sponsorship as a result
• What counts as “contact”?
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Student Attendance
Examples of expected student contact:
1. Attending formal academic or pastoral care activities including:
• a lesson, lecture, tutorial or seminar
• a test, examination or assessment meeting
• a meeting with a supervisor or personal tutor
• a research-method or research-panel meeting, writing-up
seminars or doctoral workshops
• an oral examination (viva)
• an appointment with a welfare adviser or international student
adviser
2. Submitting:
• assessed or unassessed coursework
• an interim dissertation, coursework or report
3. Registration (for enrolment or matriculation)
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Time Limits for Reporting
• A-Rated Sponsor:
If a student misses 10 consecutive expected contacts without
permission, sponsor must tell UKBA within 10 working days
of the 10th missed contact that it intends to withdraw
sponsorship of the student
• Highly Trusted Sponsor: (2 options) either:
- report individually within 10 days of the 10th consecutive missed
contact as above, OR
- set two checkpoints (re-registrations) during any rolling 12-month
period.
Must report any students who have missed 10
consecutive expected contacts without permission leading up to
that checkpoint, and sponsor is therefore withdrawing
sponsorship of the student
- Must report these students within 10 working days of completing
the checkpoint process
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Overriding reporting objective
Sponsorship duties aim to:
• prevent sponsors abusing UKBA’s process for assessing them;
• quickly find and address any patterns of student behaviour that may
cause concern;
• address weak processes which can cause those patterns; and
• monitor sponsors’ and students’ compliance with immigration rules.
Sponsors therefore have an overriding duty to spot and report to UKBA
any patterns of absence by students (e.g. patterns of absence by a
student for lectures/ seminars even though he/she regularly turns up for
mid-term registration).
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No reporting duties
• In most cases, it is the sponsor’s own responsibility to judge
whether a student absence is authorised or unauthorised
–
(e.g. if a student is absent for a prolonged period, because he/she is ill
or pregnant, you may decide this is authorised)
• Circumstances where reporting is not required:
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̶
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Student has missed 10 expected contacts but the sponsor decides that
it will continue to sponsor him/her [Note: UKBA expects these cases
to be very rare and the sponsor must retain evidence of decision
as the compliance officers will monitor these exceptions during an
audit.]
Student has taken an absence from studies that sponsor has authorised
(e.g. illness) and that will not affect the student’s course completion date
Student has completed the studies on time
• Note: need to keep document trail for audit purpose
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Reporting duties
• If a sponsor re-establishes contact with a student and
wants to resume sponsorship, it must notify UKBA if:
─ the student’s permission to stay in the UK has expired; or
─ UKBA cancelled it while he/she was not studying with the sponsor ─
he/she will have to apply for new permission to stay before he/she can
start studying again
• Any information which a sponsor reports to UKBA about
students’ non-attendance, non-compliance or
disappearance will be used by UKBA in relation to its
enforcement action against the students
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Communicating to students
• Publish on all admission documents, relevant websites
and student guides/handbooks the responsibilities of a
Tier 4 student
• Make complying with UKBA’s rules a condition of the
study offer
• Inform students that the University’s reputation as a
sponsor is dependent on the accuracy of the information
the student provides
• Consider encouraging students to report attendance
issues to the University should the student identify any
problem
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Communicating to students
• International student statement of responsibilities may
include:
 Students must bring visa and passport to the University upon registration for
the University to take a copy
 Students must also bring visa and passport to the University if they receive
a visa extension and/or make any changes to their passport or visa
 All new passports during leave period need to be provided to the University
for inspection
 Students must keep their contact details up to date
 Students must make sure they have enrolled and registered their modules
by the deadline set by the University
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Communicating to students
• International student statement of responsibilities may
include:
 If students miss or foresee that they will miss any classes, tutorials, assignments,
exams or appointments with tutors they must notify the University immediately with
reasons and supporting documents
 Students must inform the University if they wish to transfer to a different course,
withdraw from their studies or take leave of absence
 In general, depending on courses, students should not work more than 20 hours a
week during term time, although they can work full time during the vacation period
 Students must inform the University if they plan to have a long-term absense for any
reason
 Students must inform the University if they intend to study abroad or take part in an
exchange programme or to work overseas
• Consider setting up a contact point for students who have concerns
about their ability to comply with their student visa conditions or
have questions on their student immigration responsibilities
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Tips for managing attendance
• Ensure no student is allowed to study if she/he does not
have leave to remain
• Establish checkpoint/re-registration to verify up to date
student’s contact information and course attendance
• Consider setting up electronic signing-in/swipe card
facilities at entrance to lecture theatres, tutorial rooms,
etc.
• Consider asking students to sign attendance sheet for
each lecture, seminar, lesson, tutorial, etc.
• Maintain evidence of English language testing
• Consider conducting independent audit checks regularly
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Tips for managing attendance
• Make sure all sponsored student files contain all
Appendix D documentation
• Implement a student attendance policy
• Monitor student attendance during placements (consider
setting up a placement team that reports to the university
on a regular basis)
• In cases of non-attendance, need to send warning letters
to students
• Require students to attend an urgent meeting if no
records of attendance are seen after warning letter or if
there are series of attendance issues
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Sarah Linton
T: +44 (0) 20 7861 9061
E: [email protected]
Sarah Linton is a Partner in the London office and Head
of the UK Employment Practice.
Her practice encompasses all aspects of employment
law, including employment contracts, termination
agreements, disputes, European and domestic works
councils, strategic European HR issues, employment
aspects of international transactions, data protection
and privacy matters, employment litigation including
unfair dismissal, wrongful termination, discrimination
claims and bonus disputes.
Sarah also advises on business-related immigration
law. Sarah regularly contributes to legal and other
publications on employment law-related subjects, in
particular on the transfer of undertakings (TUPE).
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UKBA Tier 4 Sponsor Requirements and
Obligations
Sarah Linton, July 2013
Locke Lord (UK) LLP
201 Bishopsgate
London EC2M 3AB