Part of this policy has been a commitment to reduce the number of non-EEA students – a policy that may seem rather unwise, bearing in mind the amount of foreign currency  that foreign students bring into the UK when they pay their college fees. But the Government has tried to dress this policy up in a particular way: they say that the policy is designed to root out bogus colleges running bogus courses. One supposes that this would be a laudable aim – after all, the British “gold standard” of education does need to be protected from becoming diluted – but one suspects that the Government’s primary purpose is simply to reduce foreign student numbers by hook or by crook for its own political purposes. Certainly, the Home Secretary has engaged in rigorous politicking; the changes, she says, will “stop the abuse that became all too common under Labour.”

In any event, the Government has run into a rather unexpected problem. A High Court judge has allowed a judicial review application by the Association of UK Private Schools and Colleges to proceed. This application was made on the basis that the Government’s proposed plans for reducing foreign student numbers are disproportionate, arbitrary and severe. Some lawyers may find this High Court decision surprising; the Government might be entitled to introduce such policies if they are lawfully implemented. As even the High Court judge in question put it, the Association would face an “uphill task” in ultimately succeeding in their application but, on the other hand, he ruled that there was an arguable case.

It will be interesting to see how this application proceeds and whether – against expectations – it can force the Government to change or moderate its policies. www.ukvisaservices.com

The court ruled that if a minor child is an EU national (or perhaps even an EEA national) he or she may be able to confer immigration rights on a parent who is not an EU national. The court ruled that if the child is residing in the EU country of which they are a national and they are financially dependent on a non-EU parent whom they are living with in that country, it is not lawful for the government of that country to refuse the parent the right of residence and the right to work there.

There had previously been no such caselaw, and this judgement will no doubt have a very important effect in a number of future cases.

www.ukvisaservices.com

Some of us thought at the time that this requirement was neither right nor fair and, in particular, that it violated the principles of Article 8 of the European Convention, the Article that protects family life. Why should someone only be allowed to fall in love with someone who can speak English? Anyway, now a lady called Rashida Chapti has challenged the legality of this rule. She is a British citizen and her husband is an Indian national. She has made a challenge in the High Court on the grounds that this rule is unlawful under human rights principles and that it is racially discriminatory. If the High Court agree with this they could force the UK Border Agency to make changes to the rule or, conceivably, to scrap it altogether. The High Court’s decision in this case could significantly affect the lives of thousands of people.

www.ukvisaservices.com

A range of proposals has been made including “defining more clearly” what constitutes a genuine marriage; introducing a “primary purpose” rule whereby a couple have to show that their attachment to the UK is greater than their attachment to any other country; the introduction of a minimum income threshold for settled sponsors; the introduction of new legal powers to combat “sham” marriages (which sounds rather reminiscent of the fatally-wounded and now deceased certificate of sponsorship scheme); increasing the time periods that family members will have to spend before they can acquire indefinite leave to remain; and (something that has already been canvassed) abolishing the right of appeal for unsuccessful family visitor applicants.

It hardly needs saying, but it is a good thing that we have Article 8 of the European Convention on Human Rights to protect families and family life. The existence of Article 8 places limits on the extent to which the UK Border Agency can break up families and prevent them from being united; despite some murmurings from the Prime Minister on this subject it is most unlikely that the UK will withdraw from the European Convention.

Oliver Westmoreland www.ukvisaservices.com

The problem that would-be applicants have to face is that the scheme is tightly numbers-limited; there will only be 1,000 places available in the first year of the scheme. Not only this, but successful applicants must be formally recommended by one of four august British institutions, which are: the Royal Society, Arts Council England, the Royal Academy of Engineering and the British Academy. The UKBA states that the scheme will be available not only to those who have already been recognised as world leaders in their field but also to those who have the potential to become world leaders, so there may apparently be some flexibility within the scheme. It will be interesting to see how many applicants emerge. Recent history shows that, in some cases, specialist or elitist immigration schemes created by the UKBA may suffer from a lower rate of take-up than hoped. www.ukvisaservices.com

But in two recent decisions by the Immigration Upper Tribunal (which is the “higher chamber” of the immigration tribunal structure) a different approach has been taken. These two cases (one called “Thakur” and the other called “Patel”) both concerned the same subject. In both cases a Tier 4 student had applied to study a course at a college which was at the time on the list of colleges who were entitled to sponsor students. But, in both cases, after the applications had been made the college had been taken off the list, and therefore the applicant’s applications were refused because the applicants no longer met the relevant requirements. In neither case was the applicant in any way to blame for their college having been removed from the list and, not surprisingly, they felt rather aggrieved about the situation.

In these two rather similar judgements, the Upper Tribunal ruled that the applicants had been treated unfairly by the UK Border Agency and that the common law principle of fairness had not been followed. In the Patel case the Upper Tribunal bluntly stated that “people making applications for an extension of stay are entitled to be treated fairly by the Secretary of State in determination of those applications” and, similarly, “wherever a public function is being performed there is an inference that the function is required to be performed fairly, in the absence of an express indication to the contrary”. In the conclusion to the judgement it was stated that “we conclude that this decision was not made in accordance with the law, because the appellant’s application was not treated fairly”.

Some commentators have said that this reliance on the common law principle of fairness (which is something that exists quite independently of immigration law) is rather ground-breaking stuff but, as was pointed out in the Thakur case, these principles are not new ones. The relatively old Court of Appeal case of Gaima (1989) was referred to, in which it was stated that “where an Act of Parliament confers an administrative power there is a presumption that it will be exercised in a manner which is fair in all the circumstances”.

It may be that the Upper Tribunal (which is a relatively new creation) is now flexing its muscles because of the enhanced powers that have been given to it. And it may be that, in future, it may apply the common law principle of fairness to subjects other than the withdrawal of colleges from the list of authorised sponsors.

At a time when things are generally getting tougher and tougher for immigration applicants from an unsympathetic government, there is at least some good news. www.ukvisaservices.com

It seems difficult to believe that the UKBA will do anything to disturb the recently-created “fast routes” for indefinite leave to remain of two years and three years for Tier 1 Investors and perhaps Tier 1 Entrepreneurs will also be safe – it seems that the Government is particularly to encourage applicants in these categories.

No doubt the UK Border Agency will announce firm proposals about this in the next few months. It will of course be crucially important whether people who are already “in the system” on working visas will be able to apply for indefinite leave to remain after five years or whether this possibility will be withdrawn from them when and if new Immigration Rules about this are introduced.

www.ukvisaservices.com

Anyway, these changes and proposed changes include – in brief – the following. Colleges which are Tier 4 sponsors will in future have to meet higher standards. In the future, sponsoring colleges will all have to become “highly trusted sponsors”, ie they will have to meet the highest standard, as determined by the UK Border Agency. Whereas at present colleges can be either B-rated sponsors (the lowest standard), A-rated sponsors (a higher standard) or highly trusted sponsors (the highest standard), in future all sponsoring colleges will have to be deemed highly trusted sponsors. The UK Border Agency envisages that all sponsoring colleges will have to be highly trusted sponsors by April 2012. 

In addition to this, all sponsoring colleges will have separately to be accredited by an educational accrediting body, of which the UK Border Agency has published a list. The UK Border Agency envisages that all sponsoring colleges will have to meet this requirement by the end of April 2012.

Sponsoring colleges which fail to meet either of these proposed deadlines will not be able to sponsor new students.

There are also new rules to make the English language requirements more difficult for Tier 4 students. Students who wish to come to study a short English course (of up to 11 months) do not have to apply as Tier 4 students – they can apply for a “student visitor visa”, which is outside the points-based system, and for which the requirements are less particular than for Tier 4.

But students who apply under Tier 4 will now have to meet either the B1 or B2 English level standard, depending on the level of the course they are studying. Not only this, but the UK Border Agency is introducing a separate scheme or requirement whereby a student may be interviewed, either by an entry clearance officer at a British diplomatic post or by an immigration officer at an airport, and if their level of comprehension of English is deemed too low they can be refused the Tier 4 visa or refused leave to enter the UK on their Tier 4 visa. This happens already, but presumably it could happen more frequently in future. But students who come from a majority English-speaking country or who have been awarded a degree qualification in a majority English-speaking country will not have to meet these new English language requirements.

There is also a new rule that only those Tier 4 students who are studying courses at a higher level for at least 12 months will be able to bring their dependants with them to the UK (but their dependants will, as before, be allowed to work full-time if they wish).

There are also new rules to limit the amount of time that a Tier 4 student can spend studying at degree level to five years with, apparently, some exceptions for PhD students. (This change, it seems, taken together with the previously-existing rule that Tier 4 students may not study below-degree courses for more than three years, is designed to inhibit Tier 4 students’ ability to acquire indefinite leave to remain based on ten years continuous lawful residence).

These various new rules and proposals are concerned with introducing new restrictions and tougher requirements, but there also some interesting proposals which have a different flavour. Remarkably, Tier 4 students who are nationals of any of the following countries will be deemed to be “low-risk” students: Argentina, Australia, Brunei, Canada, Chile, Croatia, Japan, Mexico, New Zealand, Singapore, South Korea, Trinidad & Tobago and USA, and this also applies to those who hold British National Overseas or Hong Kong Administrative Region passports. It seems that applicants in any of these categories will not have to routinely provide supporting documents with their applications with the exception of the Certificate of Acceptance of Studies, which is mandatory in all cases.

And there is also a proposal for a “student entrepreneur” visa, for those students who are deemed to have developed exceptionally good ideas for entrepreneurship, but details about this have not emerged yet.

The UK Border Agency has also confirmed its intention to abolish the Tier 1 Post-Study Work scheme in April 2012, and it has also confirmed a rather limited concession whereby those seeking to switch from Tier 4 to Tier 2 will not have to have the position advertised on the labour market.

 www.ukvisaservices.com

This means that even if an appellant could show at appeal that they met the requirements of the immigration rules when they made the application they will not be able to produce evidence to show this if they did not include this evidence when they submitted the application. It may be that, in some cases, a points-based appellant will be able to successfully resort to Article 8 of the European Convention on Human Rights but in many cases this is likely to be difficult.

So points-based applicants will now need to be particularly careful when preparing their applications, particularly in respect of making sure that they include all necessary documents with the application.

www.ukvisaservices.com