COVID-19 and Tier 4 Visa Sponsorship: navigating the new Home Office Guidance

Tier 4 sponsors first welcomed Covid-19 immigration guidance from the Home Office at the beginning of March 2020. At that stage, the guidance only related to Chinese nationals. However, with the subsequent rapid spread of the coronavirus globally, the implications for UK immigration soon extended to all nationalities. 

With some visa centres throughout the world still temporarily closed, countries in partial lockdown and  travel restrictions and quarantine rules in place, the Home Office recently updated the consolidated version of its Covid-19 guidance specifically aimed at Tier 4 sponsors, Tier 4 student visa holders and Short-term student visa holders. The temporary concessions cover the entire international student journey, from visa application stage (both in the UK and overseas) and sponsor record keeping to permissible methods of learning, attendance monitoring and reporting.

Anna Blackden, an immigration specialist in Doyle Clayton’s Education Team, summarises the Home Office’s response to the outbreak of Covid-19 – and gives advice and best practice tips for Tier 4 sponsors to help ensure they benefit from the temporary concessions.

Overriding principle  - no individual or sponsor will be adversely affected for reasons beyond their control

The temporary concessions outlined in the Home Office’s Covid-19 guidance (Covid-19 Guidance) have one overriding principle: that no one will have a negative outcome through the immigration system due to a circumstance that was beyond their control. 

The Covid-19 Guidance confirms, however, that where a temporary concession applies to a Tier 4 sponsor’s duties regarding sponsored students, the sponsor must keep a record of this in the file of each sponsored student affected. 

Educational Oversight – pragmatic approach to unavoidable delays in inspections

All Tier 4 sponsors are required to maintain Educational Oversight throughout their 4-year licence cycle. For example, education providers who receive statutory inspections from Ofsted must achieve ‘Good’ or ‘Outstanding’ in an Ofsted inspection to maintain their sponsor licence. 

However, inspection cycles are being affected and potentially delayed by restrictions on physical inspections. The Home Office has confirmed that it will take a pragmatic approach to unavoidable delays in inspections caused by Covid-19. It will also allow inspection bodies to use other inspection methods such as virtual meetings or desk-based inspections. The Covid-19 Guidance confirms that it will not reduce a sponsor’s Confirmation of Acceptance for Studies (CAS) allocation to zero or make them a Legacy Sponsor due to Educational Oversight delays.

We recommend that sponsors keep a record of any communications from their Educational Oversight body about cancelled or delayed inspections or the use of other inspection methods.

Distance Learning – sponsored students temporarily allowed to undertake distance learning

In a significant departure from the current Tier 4 sponsor guidance, Tier 4 sponsors are allowed to continue to sponsor students who are continuing their studies through distance learning. It does not matter whether those students are physically in the UK or overseas. Undertaking distance learning does not need to be reported as a change of circumstances. 

The Covid-19 Guidance was updated on 16 June 2020 to confirm that Tier 4 sponsors can now sponsor new students who will start studying through distance or blended learning for the 2020-2021 academic year. This is provided that the student will transition to face to face learning as soon as circumstances allow. This concession will remain in place until the end of the 2020-2021 academic year. The Covid-19 Guidance does not appear to allow Tier 4 sponsors to assign a CAS for a course starting before 1 August 2021, such as pre sessional or foundation courses delivered online or through blended learning. 

Sponsors do not need to withdraw sponsorship for new students who have been issued a Tier 4 visa but are undertaking distance learning because they have been unable to travel to the UK, or who are in the UK but have not yet been able to attend their studies in person due to Covid-19. 

New international students, currently based overseas, who have not yet applied for a visa but want to start a course by distance learning do not require Tier 4 sponsorship. The Covid-19 Guidance confirms that this is because they do not need to travel to the UK to undertake the course. Such arrangements will apply until 31 July 2020 when the Home Office will carry out a review.

Students undertaking below degree level courses via distance learning are not required to meet the usual 15 hours daytime study per week requirement to be considered ‘full time’. The Covid-19 Guidance confirms that sponsors should make efforts to provide the stipulated number of hours’ teaching but will not be penalised if they cannot provide sufficient tuition during this period.

Sponsors should keep a record of all sponsored students undertaking distance/blended learning and the relevant course details. For education providers offering courses below degree level, we recommend that sponsors keep a detailed record of any reasons why it has not been possible to offer 15 hours’ distance learning (e.g. insufficient staff available).

Student absences – no enforcement action against sponsors for Covid-19 related absence

Sponsors do not need to report student absences related to Covid-19. This can include absences due to illness, their need to isolate or inability to travel due to travel restrictions. Sponsors also do not have to withdraw sponsorship if a student is unable to attend for more than 60 days due to Covid-19 but intends to resume their studies. The Covid-19 Guidance confirms that sponsors should maintain a record of students who are absent for reasons related to Covid-19. 

Sponsors should ensure that attendance records include evidence that any student absence is Covid-19 related such as email correspondence from the sponsored student or medical evidence.

Attendance Monitoring – relaxation of monitoring and reporting duties

Tier 4 students who cannot meet the requirements for recording physical contact points due to moving to distance learning, or who are absent from classrooms or work placements as a result of Covid-19 related illness or travel, do not need to be reported for missing expected contact points.

The Covid-19 Guidance also confirms that sponsors should use, where possible, expected online contact points such as logging into online learning portals, attending virtual lectures and online work submission to monitor attendance.

The Covid-19 Guidance confirms that the Home Office will not take action against sponsors who are unable to monitor online contact points due to practical or technical limitations.

Sponsors are not required to withdraw sponsorship where students are absent from studies, including online studies, for Covid-19 related reasons. If a student has stopped attending online distance learning for other reasons, a sponsor’s normal attendance policy should apply to online learning.

We recommend that sponsors prepare a Covid-19 Attendance Monitoring Policy, defining ‘expected contact points’ for online learning. Staff and sponsored students should be made aware of their attendance obligations during the Covid-19 pandemic. We also recommend that sponsors ensure they keep an effective record of a sponsored student’s attendance and keep a record of reasons why a sponsored student is not engaging in online studies.

Basic Compliance Assessments – no adverse effect where students withdraw for Covid-19 related reasons

The Covid-19 Guidance confirms that students who withdraw from their studies as a result of Covid-19 will be discounted from a sponsor’s data in future Basic Compliance Assessments (BCA). Sponsors must notify the Home Office of the reason for withdrawal and keep their own records for such students.

Sponsors should retain records to evidence that a student has withdrawn for Covid-19 related reasons (e.g. medical evidence, email correspondence with student).

Validity of CAS already issued – flexibility with CAS course start dates and CAS expiry

Tier 4 visa applications can still be made using CAS that were previously issued. Where a course start date has subsequently changed, if a CAS is still showing as ‘assigned’, sponsors should add a Sponsor Note with the new course start date (if known). 

Where a CAS has become invalid because it has expired, or was marked as ‘used’ in an application and the student was unable to travel due to Covid-19, the Home Office will exceptionally consider accepting that same CAS with a new visa application on a case by case basis.

The Covid-19 Guidance confirms that if a Tier 4 sponsor is assigning a CAS to a student on the basis of a temporary concession, this must be noted in the CAS sponsor notes section.

If a CAS was assigned more than 6 months ago or has been marked as ‘used’ but will still be used in a visa application, we recommend sponsors retain evidence why a student was not able to travel to the UK for Covid-19 related reasons (e.g. flight cancellation).

Assigning CAS and Study Caps – discretion over time limits due to Covid-19

The maximum length of time that a Tier 4 (General) student can be granted a student visa will remain the same (i.e. 2 years for below degree level study and 5 years for degree level and above, subject to limited exceptions). However, the Covid-19 Guidance confirms that the Home Office may apply discretion in the future where any period of leave that would cause a student to exceed the limit was as a result of Covid-19.

Where a sponsor intends to assign a CAS which would exceed the relevant study cap, we recommend the sponsor obtains evidence of any Covid-19 related disruption to a student’s previous UK studies.

Original Documents – relaxation of Appendix D record keeping requirements

Tier 4 sponsors are required to see certain original documents to comply with their record keeping duties, as set out in Appendix D of the Immigration Rules. Where it is no longer practical or safe for a student to submit these documents in person, or where sponsor sites are closed due to Covid-19 social distancing measures, the Covid-19 Guidance confirms that it is acceptable for a digital copy such as a photograph to be provided and kept on file.

Sponsors should continue to comply with their adapted record keeping duties by obtaining electronic copies of Appendix D documents such as a Tier 4 student’s passport, 30-day visa vignette, BRP and educational qualifications.

English Language Requirements and Pre Sessional Courses 

Before issuing a CAS to a Tier 4 (General) student, Tier 4 sponsors must assess their English language ability. In some circumstances, sponsors are required to check this using a Secure English Language Test (SELT) from an approved test provider - including where students are taking a pre sessional course before a degree course.

According to the Covid-19 Guidance, sponsors which are Higher Education Providers with a track record of compliance can self-assess a student’s English Language ability at B1 level where (a) a student cannot take a SELT as a result of the closure of test centres in the country where they are applying from and (b) where progression on to the main course of study is dependent upon passing a pre sessional course. The Covid-19 Guidance confirms that the SELT concession only applies to pre sessional English courses

The Covid-19 Guidance states that such sponsors must still ensure the student has the required English language ability and must keep records of how they undertook the assessment. Sponsors should add a note explaining the student’s English Language ability was self-assessed due to Covid-19 in the ‘Sponsor Notes’ field on the CAS. 

Where sponsors do take advantage of the temporary concession to self-assess a pre sessional student’s English Language ability, we recommend that sponsors maintain records evidencing that the relevant SELT test centre was closed and how the English Language assessment was undertaken.

Commencing Studies – ability to switch in the UK and start studying before Tier 4 application decided 

The Covid-19 Guidance confirms that it is possible to make a Tier 4 application in the UK when an individual would usually have to apply for entry clearance from outside the UK, if their current immigration permission expires or expired between 24 January 2020 and 31 July 2020.

The Covid-19 Guidance confirms that, up until 31 July 2020, switching into Tier 4 from other routes, including short-term student and visitor, will be allowed on an exceptional basis. The Covid-19 Guidance also confirms that this concession includes students with a Tier 4 visa not studying at a higher education provider with a track record of compliance, who would normally be required to apply from overseas. The deadline to apply under this concession is 31 July 2020.

The applicant would still have to meet all the other requirements to apply for a Tier 4 visa  - including evidence of maintenance and evidence in the required format. However, the Covid-19 Guidance provides a number of important exceptions until 31 July 2020. These include an exemption from:

• The academic progression requirement if more time is required to complete study as a result of Covid-19
• The requirement to have a gap of no more than 28 days between the end of your current immigration permission and the course start date on the CAS. This exemption only applies if an individual’s current UK immigration permission is due to expire by 31 July 2020 and the course start date on the CAS is 1 October 2020 or earlier

The Covid-19 Guidance confirms that new students can start their course or studies before their Tier 4 visa application has been decided if the following conditions are satisfied: 

• The sponsor is a Tier 4 sponsor
• The student has a CAS
• The student submitted their Tier 4 application before their current visa expired and provided their sponsor evidence of this
• The course the student starts is the same as the one listed on the CAS and
• The student has a valid Academic Technology Approval Scheme (ATAS) certificate, if required

Sponsors should be aware that their reporting duties for the individual commence from the date the CAS is issued, not the date the visa application is granted by the Home Office. The sponsor must also agree that if the student’s Tier 4 visa application is eventually rejected as invalid or refused, the sponsor must end teaching and withdraw sponsorship of the student. 

For sponsors considering allowing students to commence their studies before their Tier 4 application is decided, they should ensure the student satisfies all the conditions to commence study. Sponsors should be aware that their sponsorship duties towards such students start from the moment the CAS is assigned and that their BCA metrics could be adversely affected if an application is subsequently refused by the Home Office.

Tier 4 Sponsored Students U18 – duty of care continues during Covid-19 pandemic

Any Tier 4 sponsor which is currently sponsoring a student aged under 18 has a continuing duty of care while the child remains under its sponsorship and is in the UK - even if they have stopped studying.

Such safeguarding duties mean that sponsors of child students must continue to ensure suitable care arrangements are in place for them if they remain in the UK during the Covid-19 pandemic, even if they are not attending classes. Sponsors should keep a detailed record of the student’s UK address and UK care arrangements, including details of those responsible for their care in the UK during the Covid-19 pandemic.

ATAS Certificates - Foreign and Commonwealth Office resumed assessment

Applications can now be made to the Foreign and Commonwealth Office for a new ATAS Certificate. Current rules on the requirement to obtain an ATAS certificate continue to apply.

Police Registration

Students aged 16 or over who are nationals of certain countries must normally register with the police if they are granted a Tier 4 visa for over 6 months and also notify the local police of a change of circumstances once in the UK, such as a change of address. 

The Covid-19 Guidance confirms that students applying for an extension of their Tier 4 student visa from 21 March 2020 are not subject to these normal police registration requirements. Affected students must, however, register with the police or update their information once social distancing measures are lifted.

We recommend sponsors diarise to follow up with affected students about registering with the police once social distancing restrictions are lifted.

Travel to the UK and self-isolation on arrival – quarantine rules for international students

From 8 June 2020, international students arriving to study in the UK will be subject to the UK’s self-isolation or ’quarantine’ rules. 

Students will need to provide their journey and contact details on an online form 48 hours or less before they travel to the UK. Once in the UK, students will not be allowed to leave the place where they are staying for the first 14 days, except in very limited situations. 

If students travel on or after 10 July to England, students will not have to self isolate if they have come from one of the countries with travel corridor exemption. Students will still be required to self isolate if they have visited or stopped in a country that is not on the travel corridors exemption list in the previous 14 days. International students who arrive from one of the countries with travel corridor exemption will still have to provide details of their location in the UK by completing the passenger locator form. Please note that there are different self isolation rules for international students travelling to Scotland, Wales or Northern Ireland. 

We recommend that sponsors take steps to put support in place for international students needing to self-isolate for the first 14 days. Issues to consider include food, online facilities for induction, flexible course start dates, meeting tutors and other students, BRP collection and police registration.

Right to Work Checks – relaxation of usual document checks

All UK employers have a legal duty to make sure a job applicant is allowed to work in the UK before they start work. Right to work checks have been temporarily adapted as a result of Covid-19 to make it easier for UK employers to comply with the UK’s illegal working legislation. The Covid-19 Guidance confirms employers are not required to see original documents and can undertake checks via video calls. 

Prospective workers can submit scanned documents, rather than originals, to show that they have the right to work.

Once the temporary concessions end, UK employers will be expected to carry out the full checks on any employees recruited during the pandemic.

We recommend sponsors diarise a follow up check on the original documents of any employees recruited during the pandemic, when social distancing measures are lifted.

Student work rights – changes to working hours and volunteering for the NHS

Tier 4 students who have work rights and are employed by an NHS Trust as a doctor, nurse or paramedic are not restricted to 20 hours per week during term time and may work without limit on the number of hours permitted.

Tier 4 students with work rights whose sponsors suspend all study as a result of the Covid-19 pandemic, will be considered to be in ‘vacation’ time and therefore permitted to work full time.

Existing rules relating to volunteering and voluntary work set out in the Tier 4 Guidance continue to apply. However, Tier 4 students who want to assist the NHS and be an NHS Volunteer Responder are permitted to do so provided they comply with the ‘Stay at Home rules’ and only volunteer if they fulfil the relevant conditions as set out in the NHS England website.

We recommend that sponsors check that any Tier 4 sponsored students working for them do not exceed their usual permitted working hours when the pandemic is over. 

Graduate Immigration Route – time spent studying outside the UK will not prevent eligibility

The new Graduate Immigration Route is still scheduled to be launched in the Summer of 2021. Tier 4 students who have successfully completed a degree at a Higher Education Provider in the UK can apply to remain in the UK and work for up to two years. The Covid-19 Guidance confirms that any time spent studying outside the UK due to Covid-19 will not count against Tier 4 students provided that they enter the UK before 6 April 2021 and they spend their last semester in the UK with Tier 4 immigration permission.

They think it’s all over….

The Covid-19 Guidance makes clear that the concessions outlined above will be kept under regular review and will be withdrawn once the situation returns to normal. Sponsors should therefore ensure that all record keeping during this period is dated accurately so that any action taken can be effectively linked to Covid-19. This will help protect a sponsor in the event of subsequent Home Office enforcement action.

The Home Office has taken a pragmatic and necessary approach to support Tier 4 sponsors and international students during an unprecedented time, relaxing or removing many of the usual sponsorship duties and Tier 4 visa requirements. It is clearly in the UK’s interests to help the country maintain its position as a first choice study destination in a competitive – and highly lucrative - international student market.