- 9 minute read
- Last updated: 15th November 2019
Tier 4 compliance presents an ongoing risk for sponsors of Tier 4 visa students.
If an education provider wants to enrol international students for a period of longer than six months, they must become a Tier 4 sponsor. You only need a sponsor licence if the students are from outside the European Economic Area (EEA) and applying for the Tier 4 visa. However, there are a number of compliance obligations that Tier 4 sponsors must adhere to. Failure to meet the Tier 4 compliance duties could result in enforcement action being taken by the Home Office, such as your licence being revoked.
This article covers:
- The Basic Compliance Assessment
- Key assessment requirements for Tier 4 compliance
- Extenuating circumstances and discretionary assessments
- Passing the assessment
- Appealing a decision
- Tier 4 compliance breaches
- Sanctions for Tier 4 compliance breaches
- New Office for Students (OFS) registration
Attaining the sponsor licence is arguably the easier part. Staying up to date with compliance regulations and ensuring your institution is compliant can be an involved process and there are many duties sponsors must carry out.
The Basic Compliance Assessment
You must apply for a Basic Compliance Assessment every 12 months. You must apply for this regardless of whether you passed the previous assessment. Even if you passed a previous assessment you may be found non-compliant and in breach of sponsorship duties at a later assessment so it’s key to keep up to date with changes in sponsor regulations.
You can apply up to a month before the assessment is due and must pay the fee using your SMS account unless you hold a Tier 4 premium customer service account.
If you do not apply for a Basic Compliance Assessment within designated timescales the Home Office will begin licence revocation action. You will be removed from the register of sponsors and given 20 days to make representations to counter the decision.
Key assessment requirements
During a Basic Tier 4 Compliance Assessment, you will be assessed against a few key requirements. You must have a visa refusal rate that is less than 10%, a course completion rate of at least 85% and an enrolment rate of 85% at least. If it is viewed that you have delayed reporting these statistics it may be considered a breach and compliance action could be taken against you.
Extenuating circumstances and discretionary assessments
In addition to carrying out checks on key personnel, the Home Office will also carry out criminal record checks on the owner of the business, together with any members of the senior management team, including directors and partners, or those otherwise responsible for its day-to-day running.
Further, although checks are not routinely undertaken on any other people associated with licensed sponsors, the Home Office reserves the right to request information on employees in positions of responsibility who are not directors, partners or key personnel, as well as individual financiers involved in the running of your business.
Having regard to any relevant criminal history here, the Home Office may again refuse your licence application or grant you a licence with limitations.
Passing a Tier 4 compliance assessment
If you pass the Basic Compliance Assessment, you will be informed in writing by email or letter. If you are a Probationary Sponsor and pass for the first time you will be added to the Tier 4 Register of Sponsors.
Appealing a decision
f you fail the Basic Compliance Assessment you will receive written confirmation outlining the reasons for the decision. Revocation of the sponsor licence will begin and you will be removed from the Tier 4 Register of Sponsors. You will have 20 days to respond to the revocation.
You can challenge the decision and must show how the overall decision was flawed – as opposed to the merits of individual visa applications for example. In exceptional circumstances that lead to a sponsor needing extra time to make representations cases made outside of the 20-day limits will be considered.
The sponsor’s representations against the decision will be considered and if the sponsor still fails the Basic Compliance Assessment the licence will be revoked – with no right to appeal.
Tier 4 compliance breaches
A sponsor is obligated to comply with a number of strict regulations. Action will be taken against any sponsors who are suspected to pose a risk to immigration control.
Breaches can vary in nature and severity. For guidance the following would be considered concerns rather that serious breaches.
- Not keeping records about the institution or Tier 4 students
- Not reporting a change in the sponsor’s circumstances
- Failure to report a change in students’ circumstance or not withdrawing sponsorship from non-compliant students.
- Not ensuring students comply with their conditions of leave.
- Not registering students with the appropriate awarding bodies.
- Institution becoming unfit for teaching purposes.
- Key personnel at the institution becoming bankrupt
- Key Personnel is linked to a sponsor with a revoked licence
- If a sponsor is observed to be committing breaches of this nature regularly they collectively could be deemed a serious breach.
- Serious breaches of sponsorship duties are those that suggest a failing that poses a threat to immigration control or a systematic failing. They include:
- Failing to apply for a compliance assessment
- Failing the Basic Compliance Assessment
- Providing deliberate false information
- Not disclosing relevant information
- Acting in a dishonest way
- Not co-operating with the home office – for example on site visits
- Failing to adequately assess student’s language ability or academic suitability
- Not monitoring academic progression or student attendance effectively
- Failing to pay an action plan fee or satisfy the obligations of the plan
- Eligibility failings such as inadequate fire risk assessments or planning consent
- Suitability failings such as key personnel holding relevant convictions
Sanctions for Tier 4 compliance breaches
The Home Office recently introduced a new requirement for Tier 4 sponsors to register with the Office for Students (OFS). Sponsors who have a good track record of compliance and register with the OFS benefit from a range of privileges. Any sponsors who do not register with the OFS are in danger of becoming legacy sponsors – this means the institution cannot accept any new students that need Tier 4 sponsorship.
New Office for Students (OFS) registration
The Home Office recently introduced a new requirement for Tier 4 sponsors to register with the Office for Students (OFS). Sponsors who have a good track record of compliance and register with the OFS benefit from a range of privileges. Any sponsors who do not register with the OFS are in danger of becoming legacy sponsors – this means the institution cannot accept any new students that need Tier 4 sponsorship.
Need assistance?
Applying for and keeping a Tier 4 Sponsor Licence can be complex and involved. An immigration expert can assess your eligibility, help you make an application and help you prepare an evidence portfolio. In the case of suspected sponsor breaches expert legal representatives could ensure you are prepared for investigations and respond timely and appropriately.
If you have a question or need help with Tier 4 compliance, contact us.
Author
Founder and Managing Director Anne Morris is a fully qualified solicitor and trusted adviser to large corporates through to SMEs, providing strategic immigration and global mobility advice to support employers with UK operations to meet their workforce needs through corporate immigration.
She is a recognised by Legal 500and Chambers as a legal expert and delivers Board-level advice on business migration and compliance risk management as well as overseeing the firm’s development of new client propositions and delivery of cost and time efficient processing of applications.
Anne is an active public speaker, immigration commentator, and immigration policy contributor and regularly hosts training sessions for employers and HR professionals
