Immigration Blog

“Sponsors must notify us where a student has missed 10 expected contacts” – extract from the UK Border Agency Tier 4 Guidance

This is a duty established in the Tier 4 Sponsor Guidance that may catch out the unsuspecting sponsor. The UKBA have provided clear guidance on what you should do once you have established that a Tier 4 student has missed 10 ‘expected contacts’ (report it to them!), but what is not so clear is how ‘expected contacts’ is defined.

The UKBA’s published guidance does provide some examples of what may constitute ‘expected contacts’ or ‘interactions’, but it makes it clear that the list it provides is not exhaustive and is then backed up by a rather grey and ambiguous explanation of how sponsors are to determine what is an expected contact. In their own words, “it is entirely the responsibility of the sponsor to judge whether a student’s absence is an authorised, or unauthorised one”.

With this in mind, it is for the sponsor to establish in its own mind exactly what equates to an ‘expected contact’ appropriate to the organisation and the nature of the courses it offers, and to effectively communicate this with both staff and students, with robust procedures in place to ensure that any unauthorised absence is flagged-up, recorded and, if necessary, reported to the UKBA.

So how is this done in practice? With such vague guidance for Tier 4 Sponsor licences, it is advised that a belt-and-braces approach is adopted when establishing the required safeguards. In order to do this, it is prudent to examine the processes and systems of education providers that have obtained the highest level of sponsorship licence: the Highly Trusted Sponsor Licence. Organisations with such licences have reassured the UKBA that they have in place strong procedures and systems to ensure that unauthorised absences are clearly defined for both staff and students, that these will be made aware to the appropriate persons and that, finally, they convert this intelligence into information they can report to the UKBA. If you can show the UKBA that you have similar systems, then you are in a far stronger position to demonstrate that you have the required systems to satisfy the A-grading licence, at the very least.

CASE STUDY: UK University with a Highly Trusted Sponsor licence

The following points of practice are drawn from those practices and procedures adopted by recognised organisations with a Highly Trusted Sponsor licence in administering Tier 4 students:

• Appoint a dedicated supervisory/support officer that migrant students and staff may contact to clarify any issues surrounding student absence/report anything amiss – depending on the size of your organisation, this may of course be a member of staff with numerous roles. However, it is vital that a clear structure is in place to minimise the risk of the UKBA accusing you of failing to establish and enforce a robust system.
• Utilise supervision records – centralised on the student’s file
• Create supervision templates for all staff to access
• Encourage informal records of contacts with supervisory staff as further evidence
• Publish clear guidance and policy made available to students: online, posters, information packs on enrolment
• Publicise to staff and students examples of ‘expected contacts’:
  • University registration
  • Induction and orientation events
  • Supervisions, lectures, seminars, workshops, laboratory sessions, training courses
  • Supervision or training sessions held over the phone or via the internet
  • Scheduled formal assessments, presentations, vivas
  • Meetings and events
  • Reporting to administrative offices to discuss aspects of the course
  • Physical submission of work
  • Group sessions
• Publish guidance to reflect flexibility of how contact can be made at various times during the course i.e. that telephone and email contact may be more appropriate during exam/thesis writing-up time
• Encourage a commitment to recording all authorised absences and retaining alongside a student’s file
• Establish an internal reporting procedure. One such example:
  • 3 consecutive expected contacts missed: appointed staff member alerted and warning email sent to student, reminding them of their commitments and responsibilities to attend all expected contacts
  • 7 consecutive expected contacts missed: a senior staff member alerted triggering a warning letter to be sent by registered delivery/courier to the student warning them that they will be reported to the UKBA if there are 3 further missed contacts and requesting an explanation in response as to why they have been absent
  • Following this, the student’s activity should be monitored very closely, with all reasonable steps taken to establish communication with senior members of staff
  • Following 10 missed contacts, all services available to the student by the university are blocked and the UKBA notified.

The UK Border Agency is very strict in assessing all Tier 1 General visa applications and even minor, or seemingly innocuous issues may form grounds for refusal.

As a general principle, all documentation which will serve as supporting evidence must be original. The formal guidance provides for alternatives in certain situations, allowing copies to be provided instead of originals. However, there is always a set of requirements which need to be met in order for authenticated copies to be accepted. Even a minor omission in this regard will disqualify the document and may lead to the whole application being refused.

All documents need to be in English. If originals aren’t in English, they must be accompanied by certified translations.

The degree certificate used to claim points for a qualification must be recognised by the UK Border Agency database or by UK NARIC. The information from the certificate must match the database details exactly, without any variance. If your certificate does is not registered on the UK Border Agency database, and you feel that the certificate should be, there is an alternative course of action. You will need to obtain a letter from UK NARIC, the organisation which provides an authoritative statement on the UK equivalence of your degree or qualification.

The application submission date is defined as the date when the application form is posted to the UK Border Agency or, submitted in person. It is not necessarily the date the application is received by the UK Border Agency. This date will determine whether an application is made in time (on or before the visa expiry date) and whether or not the maintenance evidence is too old, as the last bank statement cannot be older than one month on the day of application. The earnings claim period will also be asserted in relation to the date of submission. The application date is one of the critical factors in ensuring the success of your application. Make sure you retain proof of the date that you post your application.

Each salary or other source of income must be corroborated by two documents originating from two independent sources. For example each pay slip should show exactly the same net payment made as the corresponding receipt on the bank statement. Remember that even minor differences will erase the points you are trying to claim for earnings.

The Tier 1 General Policy guidance should be read carefully and followed rigorously. There is no scope for your own interpretation and nothing can be left to chance.

All applications under the Points Based System (“PBS”), a scheme which combines both highly skilled and employer-sponsored applications, share one common feature – the maintenance requirement.  The maintenance requirement has proven to be very contentious in practice and has resulted in many refusals. All applicants must prove that they will be able to maintain themselves in the UK by providing evidence of being in possession of an appropriate level of funds. For Entry Clearance applicants the minimum level has been set as £2800 and for in country applications £800. An additional £1600 and £533 respectively is required for each dependant included in an application. Funds must be present in a bank account for 90 days and the balance can never drop below the required level.

Numerous policy guidance documents were published by the UK Border Agency attempting to provide detailed explanations as to the source and quality of evidence of the maintenance funds. Notwithstanding this however the Asylum and Immigration Tribunal has been the forum for many disputes in this regard.

The explanation used by the UK Border Agency (“UKBA”) to describe the funds was “the evidence of maintenance must be of cash funds in the bank (this includes savings accounts and current accounts even if notice must be given), loan of official financial or government sponsorship available to the applicant”. A question frequently asked by clients is whether an overdraft facility can amount to “cash funds available on the applicant’s bank account”. Unfortunately, despite a careful reading of the policy guidance the position of the UKBA was not clear. In financial terms an overdraft which is allowed by a bank, can be classed as a short-term loan and as such should fall into the above definition. However the Immigration and Asylum Tribunal in the case of PO (Points based scheme: maintenance: loans) Nigeria [2009] UKAIT 00047 clarified that bank statements provided as evidence of maintenance funds must always show a positive balance which meets, or is above the required level. Overdraft is a deficit in a bank balance and therefore cannot be used as a source of maintenance funds. Further, the Tribunal has asserted that the UKBA would not investigate whether the money represents applicant’s own savings or borrowed money, confirming that loan funds are acceptable, as long as the loan has already been credited to the applicant’s account. Merely having a loan agreement, without the funds transfer will not suffice.

The above interpretation was relevant where the word “loan” was used by the UKBA in their published policy guidance. However, since 6^th April 2010 new guidance documents have been published and loans were removed from the examples of acceptable funds. It is yet to be seen whether the ruling reached in PO (Points based scheme: maintenance: loans) Nigeria [2009] UKAIT 00047 is now outdated with regards to loan funds. It seems that in the light of the general and overarching rule dictating literal application of the policy guidance in all Points Based Scheme applications, it is likely that this time the Tribunal will decide that loans cannot be relied upon, especially given that the word “savings” appears more often in the policy guidance and the word “loan” removed entirely.

The Asylum and Immigration Tribunal has reiterated yet one more basic rule. All applications will be considered against policy guidance in place on the date that the application was made. Arguing that previous or future guidance should apply simply because it is more favourable to the client will not win the case. The date of application, as defined by the Immigration Rules will determine the law in force and therefore eligibility for leave to enter or remain under one of the PBS categories.

The UK Border Agency has been accused of inconsistency in their approach towards Guernsey work permits. The issue came out after numerous applications for Indefinite Leave to Remain, where applicants relied on the time spent in the Bailiwick of Guernsey in order to show 5 years continuous residence in the UK.

Numerous applicants obtained their work permits to work in Guernsey and subsequently moved to the United Kingdom, having first obtained permission to work in the UK. According to the Immigration Rules an applicant must have accumulated 5 years of continuous residence in the UK in order to be eligible for Indefinite Leave to Remain. Some applicants switched into a different category after arrival in the UK, for example into a Highly Skilled Migrant Programme, others obtained work permits for employers in the UK.  The Immigration Rules further prescribe that 5 years of continuous residence in the UK must have been spent in a combination of any of the categories under specific Immigration Rules.

Some of the decisions of the UK Border Agency concentrate on the fact that a work permit in Guernsey was not under the immigration rules, and therefore time spent there cannot be counted towards 5 years continuous residence in the UK. We stress the word “some” because not all decisions have been negative. Mulberry Finch has represented many clients in similar situations and has been successful in obtaining approvals. From our experience it is clear that this is a challenging area of the law and applicants should seek professional help. In many cases the arguments can be run as the basis of a judicial review challenge.

Mulberry Finch have had success arguing that Guernsey refusals constitute an error of law. This is because the Immigration Act 1971 in Schedule 4 entitled “Integration with United Kingdom Law of Immigration Law of Islands” provides that leave to enter or remain granted in any of the Islands will be treated as given under this Act.

“The Island” is then interpreted in the Act as the Channel Islands and Isle of Man. Bailiwick of Guernsey is part of the Channel Islands.

The Immigration Act 1971 is the basis of immigration law, providing the framework for immigration control. It creates an authority for immigration control and it gives the Secretary of State the authority to issue “statements of the rules as to the practice to be followed in the administration of this Act” (s. 3(2)). Those rules are presented in Parliament, but they are not a legislative measure enacted by the Parliament. They are indeed not even secondary legislation, but an executive prerogative exercised on the basis of s. 3(2) of the Immigration Act 1971 and fall under this act. Currently the rules in force are the Immigration Rules HC 395. Those rules are quoted by the UK Border Agency in their refusal letters as the legal grounds for their decisions.

Work permits granted under the laws of Bailiwick of Guernsey are by virtue of the operation of s.1(1) of the Immigration Act 1971 to be treated as if given under this Act to enter or remain in the UK. The 1971 Act, a law enacted by the Parliament takes precedence before any statements of the Secretary of State, including the Immigration Rules. The1971 Act itself confirms that time spent in Guernsey is to be counted as time spent in the UK. If a literal interpretation of the Immigration Rules gives a different conclusion, it is to be disregarded.

In addition to the above, another Act of Parliament – the British Nationality Act 1981 provides a definition of the United Kingdom in section 50 (1) as including Great Britain, Northern Ireland and the Islands. The same section defines “the Islands” as “the Chanel Island and the Isle of Man”.

The UK Border Agency does not appear to have a clear and published policy on this matter. There is no mention of this issue in their Immigration Directorate Instructions.

It follows that in two major pieces of legislation governing Immigration and Nationality law Parliament has expressed its intention to treat the Channel Islands, which include Bailiwick of Guernsey, as part of the UK. Even if the Home Office policy in this regard was published in their Immigration Directorate Instructions, this would be inconsistent with the existing legislation. The Secretary of State does not have the prerogative to limit the scope of legislation by introducing restricting practice.

Under the current immigration rules for Tier 1 (Post-study work) visas, in order to score a sufficient number of points the applicant must show (inter alia) that he or she has been awarded an eligible qualification within the 12 months preceding the application (see paragraph 245Z and paragraphs 51 to 55 of Appendix A of the Immigration Rules HC 395).

Application of these rules has turned out to be very contentious in practice and has led to numerous appeals in the Asylum and Immigration Tribunal. The issues arise in light of the fact that often there is a significant gap between the date of completion of the course and the date of award. The gap is increased further by delays in actually receiving the degree certificate, after it has been formally awarded. In the case of KAN (Post Study Work – degree award required) of 5^th June 2009 the Tribunal confirmed that evidence from a university confirming that the award will be awarded in future is not enough. The degree must have already been awarded.

In NO (Post Study Work – award needed by date of application) Nigeria of 17^th December 2009 the Appellant presented his degree certificate at his appeal hearing, but the Certificate was not available on the date that he made his application for a Tier 1 (Post-study work) visa. He argued that section 85(4) of the Nationality, Immigration and Asylum Act 2002 allowed him to adduce evidence about any matter relevant to the decision. The issue that the Tribunal had to decide in this case was whether the appellant could rely upon post-decision evidence in his appeal argument, namely on a degree awarded after the submission of an application for the Tier 1 (Post-study work) visa but before the hearing of the appeal. In line with the literal interpretation of the Immigration Rules, guidance and current case law, the immigration judge decided in this case that applicants are required to have obtained the eligible qualification by the date of application, and not more than 12 months before. Applications made on the basis of qualifications which applicants hope to receive in the future will inevitably be refused.

The date of award therefore determines eligibility for the Tier 1 (Post-study work) visa and this date has been defined as the date when a student has been notified in writing about the award of the qualification. No other date, such as the completion date of the course or the graduation ceremony date will be relevant for this type of application.

Part 8 of the Immigration Rules governs “family migration” into the UK. Those provisions prescribe requirements that must be met by family members if they wish to joint their relatives who are present and settled in the UK. In all applications made under this part of the Immigration Rules applicants must prove that they will have sufficient financial resources so as not to become a burden on public funds. In practice this means that people who wish to obtain permission to enter the UK as fiancés, spouses, civil partners, unmarried partners, or other dependant relatives must prove that they will not need to resort to social security benefits.

In most cases the evidence of the financial situation of a UK based sponsor is sufficient to satisfy the UK Border Agency that after arrival in the UK an applicant would be maintained appropriately. In addition, an applicant’s personal resources will be taken into account in assessing his or her ability to support himself or herself in the UK. Applicants can also present evidence relating to their prospects of finding appropriate employment in the UK, once allowed to work by the immigration authorities. However, the problems arise where the applicant’s and their sponsor’s resources are quite limited. The following scenarios may occur:

1. Parties have no savings and the Sponsor’s income is low.

   The Asylum and Immigration Tribunal looked into the level of funds required in more detail in the case of KA and Others (Adequacy of maintenance) Pakistan [2006] UKAIT 00065. The question raised by the Tribunal was what income level is “adequate” for the purposes of the Immigration Rules and in particular in the context of a Spouse visa application. It was decided that the minimum level of funds available to a couple should be no less than that of the income support level for a couple. At the time if writing this was £102.75. It follows that low income should not automatically result in the refusal of an application, but it is important to prove that it will be sufficient for the couple and they will not need to seek help from the public purse.

2. Sponsor entire income comes from benefits.

   The fact that the Sponsor is in receipt of benefits does not automatically preclude a successful application for a visa for his or her partner. The Immigration Rules clarify that Sponsors are entitled to benefits in their own right and it is the applicant who cannot be in receipt of benefits. If the applicant’s arrival in the UK would cause an increase in a sponsor’s entitlement to benefits, this would be regarded as recourse to public funds which is not permitted.

3. Sponsor has no independent income and is himself or herself supported by a 3^rd party.

   The Immigration Rules in their current version have been construed to suggest that applicants and their sponsors have to support themselves, from their own resources. Third party support was not allowed AM (3^rd party support not permitted R281 (v)) Ethiopia [2007] UKAIT 00058. However, on 16^th December 2009 the Supreme Court decided that such interpretation of the rules is not consistent with the purpose of those provisions, which is to ensure an appropriate standard of living for the immigrants and to protect the public funds. The Court decided that applicants can rely on funds provided by third party (family or friends) as long as it is a sufficiently reliable source of income. The burden will be on the applicants to provide evidence, which would persuade the decision makers that the support is not less reliable than income from employment and therefore could prevent the recourse to public funds.

In all cases the assessment whether an applicant meets the maintenance requirement is a complex exercise involving analysis of various factors, including expenditure and future prospects of earnings. It is however a very important factor, after the personal evidence of relationship, and will contribute to the success of a visa application under Part 8 of the Immigration Rules.

Nationals of the European Economic Area (EEA) Member States (European Union plus Iceland, Norway, Lichtenstein and Switzerland) benefit from free movement rights. This means they can travel to another Member State freely. They can migrate and undertake economic activity. In order to facilitate this right they are allowed to bring their family members with them, even if their family members are not themselves citizens of a European Union (EU) state. Their rights are not therefore free-standing but strictly dependent on the status of the EEA national. In practice this means that when the EEA national stops exercising their free movement rights by, for example, returning to their home country, the EEA national’s family members lose their right to reside in the UK automatically.

Because the family member’s rights are derived from their relationship to an EEA national, the same should happen when the relationship breaks down. However, there are circumstances where despite the relationship breakdown, family members can nevertheless remain in the UK. In legal terms they “retain their right of residence”.

Such a situation was recently the subject of the Asylum and Immigration Tribunal decision in OA (EEA – retained right of residence) Nigeria [2010] UKAIT 00003. The Tribunal reiterated the principles governing this area of law:

• In order to acquire a retained right of residence, you must meet the following requirements:
  • Your marriage or civil partnership has been terminated; and
  • At the date of termination your spouse or civil partner (EEA national) was exercising his/her rights under EU law; and
  • You are employed, self-employed or self sufficient (or you are a family member of such a person); and
    • You were married or in a civil partnership for at least 3 years before you started your divorce proceedings; and you were living with your spouse or civil partner in the UK for at least one year or
    • you have custody of your child or a right of access to your child which must be exercised in the UK according to a court order or
    • there are other compassionate grounds such as domestic violence.
• Under Community law a marriage or civil partnership is considered terminated when a decision has been made by a competent authority and this decision is final (Diatta v Land Berlin case decided by the European Court of Justice). In the UK it will be upon the issue of a decree absolute. Until the decree absolute is issued, even after the decree nisi, the marriage or civil partnership is existing for the purposes of EEA applications. The fact that parties no longer reside together or communicate with each other is not relevant. It follows that until your decree absolute is issued, you remain a family member of the EEA national.
• Immediately after your decree absolute is issued and you meet the above requirements you acquire the right to reside in the UK.
• If you have been residing in the UK for a continuous period of 5 years, under the EEA Regulations you acquire permanent residence rights. You can then make an application to the Home Office for a permanent residence card.

The Asylum and Immigration Tribunal has left open one issue that may cause significant problems in practice. The issue is one of meeting the evidential requirements.

For example: a 3^rd country national resides in the UK with his spouse or civil partner who is an EEA national for 4 years, say from January 2005. The divorce proceedings start in February 2009 but will not be completed until August 2010. Until the decree absolute is issued, the 3^rd county national remains a family member of an EEA national with a right to reside in the UK, as will likely be confirmed by his residence card. After 5 years of continuous residence in the UK he applies for a permanent residence card, say in January 2010. In January 2010 he is still married to an EEA national, so cannot claim the retained right of residence. He applies as a family member of an EEA national, but because the parties are not on amicable terms, he is not able to provide evidence that the EEA spouse has been exercising free movement rights (e.g. pay slips) and most importantly is unable to provide the EEA spouse’s passport.

If he makes his application for a permanent residence card after the decree absolute, as a person who has retained the right of residence, the evidential difficulties do not disappear. He is still required to provide evidence that his spouse was exercising treaty rights (economically active or self-sufficient) on the day of termination of the marriage (the day of the decree absolute). The Tribunal has not yet recognised that when a marriage breaks down, it is unlikely that the parties want to cooperate with each other and share documents.

It remains to be seen whether the issue will reach a higher court, or indeed be reconsidered by the AIT so that the evidential requirements issue is resolved. Otherwise, the main purpose of this regulation which was to safeguard family life and human dignity is likely to be more painful than was intended (see “the Citizens Directive” 2004/38EC, preamble point 15).

Skilled workers with a job offer from a UK employer holding a Sponsor Licence need to make an application for a Tier 2 visa.

The Tier 2 Skilled Migrants visa replaces the UK Work Permit scheme.

One of the key requirements that must be met before a Tier 2 visa can be approved is the maintenance requirement. An applicant for a Tier 2 visa must show that they have savings that they can draw upon. The amount that must be available is £800, at the point that an application is submitted.

If dependants also wish to live in the UK, with the main applicant, then the maintenance requirement increases by £533 for each family member that is eligible to apply for a Dependant visa.

A bank statement is the best form of evidence that can be submitted with an application for a Tier 2 visa. If a bank statement is not available, then a letter from the applicant’s A-rated sponsor will be required. The letter will need to confirm that the sponsor will take responsibility for maintenance and accommodation of the applicant during their initial month in the UK.

From 31 March 2009, applicants will need to demonstrate that they have held the maintenance requirement funds for a minimum of three continuous months prior to the application being submitted.