RESPONSE BY JOINT COUNCIL FOR THE WELFARE OF IMMIGRANTS TO ‘THE STUDENT IMMIGRATION SYSTEM A CONSULTATION’

About JCWI

Joint Council for the Welfare of Immigrants (“JCWI”) is an independent, voluntary organisation working in the field of immigration, asylum and nationality law and policy. Established in 1967, JCWI provides legally aided immigration advice to migrants and actively lobbies and campaigns for changes to immigration and asylum law and practice. Its mission is to promote the welfare of migrants within a human rights framework.

Introduction

Non-EEA students bring a range of cultural and economic benefits to the UK.   In relation to the latter it should be noted that:

i.                     Education and training exports represent the second biggest contributor to the UK’s net balance of payments. They are, according to the Financial Times worth £40 billion.

ii.                   According to the independent Migration Advisory Committee, for every one pound students generate for universities, a further fifty pence is generated for other industries.

iii.                  The independent Migration Advisory Committee found that non-EEA national students subsidise the educational system in the UK.  In fact they account for 37% of total university fee income.

iv.                 Research shows that students bring knowledge of different countries, languages and cultures which are beneficial to UK businesses that wish to develop markets new markets.

v.                   Non-EEA national student graduates who remain in the UK contribute £1 billion per year to GDP.

vi.                 Non-EEA national students who remain in the UK after graduation contribute at least £100 million per year in fiscal benefits.

vii.                The independent Migration Advisory Committee concluded following its recent examination of the Post Study Work route that there was no evidence that non-EEA nationals using the Post Study Work route displaced nationals in the labour market.

viii.              Research from the US has shown that for every 1% increase in the share of immigrant university graduates in the US population, patents per capita are increased by 6%. We expect similar trends to be prevalent in the UK.

By way of general observation, given the above, and given that statistics show that the British economy shrank by 0.5% in the last quarter, and that educational establishments including world class universities like Cambridge are already starting to shed jobs (due to cuts of 25% and 40% to the further and higher education budgets) it is disingenuous to make the reduction of foreign students/graduates a general policy objective in itself. We go on to deal with the specific consultation questions below.

Question 1

Do you think that raising the minimum level of study sponsors with a standard sponsor licence can offer under Tier 4 (General) to degree-level and above is an effective way of reducing abuse of Tier 4 (General) route, increasing selectivity and simplifying the current rules?

No.

There seems to be no adequate policy justification for this.  From the point of view of economic value, this will result in loss of fee revenue both for further, but also higher education institutions given that approximately half of all students recruited by universities start out on sub-degree courses.

So far as the underlying rationale goes –  there is a higher rate of non-compliance amongst this group, the research on which this conclusion is based is unreliable given that the study is based on: a.  potential non-compliance, b. focuses only on an unrepresentative sample of organisations UKBA already had concerns about and c. offers a ‘maximum potential estimate’ only.

Question 2

Do you think that only Highly Trusted Sponsors should be permitted to offer study below degree level to NQF levels 3,4, and 5/SCQF levels 6, 7, and 8 in the Tier 4 (General) category?

No.

See above comments. The current system which was only put in place in 2010 is adequate to deal with this.

Question 3

Do you think that the changes discussed in this section should be phased in?

Yes.

If they must be introduced they should be brought in over a 37 months plus time-frame as they will be disruptive for educational establishments and students.

Question 4

Do you think that, in the light of the low risk of abuse amongst users of the Tier 4 (Child) route, there should be no changes to the route?

Yes.

We have had also had sight of the response by the Immigration Law Practitioners’ Association13 and agree with their further observation about the need for amendments to rule 56(a)(iii) of the Immigration Rules.

Question 5

Do you think that all students using Tier 4 (General) category should have passed a secure English language test to demonstrate proficiency in English language to level B2 of the CEFR, in order to improve selectivity and to simplify the current system?

No.

As the UK Council for International Student Affairs suggests, this is most likely to affect students from Korea, Japan, Taiwan and Saudi Arabia – all low risk countries, and could lead to the loss of somewhere in the region of £120 million for the UK.

More generally, however, there is simply no sound policy justification for this. It is more appropriate for educational providers to make assessments about suitability for courses.

Question 6

Do you think that students from majority English-speaking countries, those who have been awarded a qualification equivalent to UK degree-level or above that was taught in English in a majority English-speaking country, and those who have recently studied in the UK as children should be exempt from any new language testing requirement?

Yes.

Additionally notwithstanding the above comments this should extend to:

i.                     Any degree taught in English – otherwise there is a risk that such provisions would be inconsistent with statutory race equality duties.

ii.                   Students who have obtained a qualification equivalent to A-Level or ILB through the medium of English.

Question 7

Do you think that students wishing to study a new course of study should be required to show evidence of progression to study at a higher level?

No.

Academic progression is not a mere evolution from undergraduate to Masters to Phd. A well rounded education may for example require studying two separate Masters degree courses. Indeed there are number of perfectly valid reasons that students may wish to study at different levels.

It should also be noted that Article 2 of Protocol 1 of the European Convention on Human Rights provides that no one should be denied the right to education.  The former includes a right of access to existing educational institutions. When read with Article 14 ECHR and in the light of the justification advanced in the paper- the need to prevent students from staying in the UK indefinitely without making academic progress,15 there is a question about the extent this would be consistent with this. Furthermore given that Article 10 ECHR also encompasses the right to receive and impact information and ideas16, there is also a question mark as to the extent to which such as measure may potentially unlawfully interfere with ECHR rights.

Question 8

Do you think students wanting to study new courses should return home to apply from overseas?

No. There is nothing in the evidence that would suggest that this would be desirable either from the perspective of educational establishments, students or immigration control. See also above point about Article 10 ECHR which may potentially also come into play.

Question 9

What changes do you think we should make to the Tier 1 Post Study Work Route?

The independent Migration Advisory Committee examined this issue carefully recently in 2009 and concluded that the route should remain open because of the implications for fees for universities – PSWR has an influence in the decision to chose the UK as a place of study. It also concluded that there should be broad continuation of the current policy.

If the route is ultimately to be closed down, appropriate transitional arrangements will need to be put in place as those already in PSWR were given a legitimate expectation that they would be able to switch to Tiers one and two after a two year period.

We agree with ILPA that transitional arrangements should also extend to students who are already in the system given that their choice for their university of study may well have been based on the existence of the PSWR.

JCWI Response to Student Visa Consultation – part 2

Question 10

Do you think that we should restrict further the amount of work students should be allowed to undertake when studying?

No.  There are a range of perfectly valid reasons that students may need to work.

Importantly, Article 6(1) of the International Covenant on Economic, Social and Cultural Rights recognises the right to work which includes the right of everyone in the jurisdiction to the opportunity to gain work. The UK is bound by this obligation. Its reservation extends only to the purpose of protecting the employment opportunities in the UK/regions within it. This however is not the stated rationale of the proposal, nor is it supported by any evidence.

Question 11

Do you think we should make it simpler for employers to understand the rules around student work by limiting it to set times except

We agree with ILPA’s comments in their response to this Consultation.

Question 12

Do you think that the minimum ratio of study to work placement permitted should be increased from the current 50:50 to 66:33, except where there is a statutory requirement that the placement should exceed one- third of the total course length?

No.

If courses are set up in this way it is because the course providers are of the view that this is the most effective way to acquire the relevant knowledge/expertise in question.  There is no evidence put forward to justify putting foreign students a disadvantage in comparison to domestic students. Further it is unclear as to how this would practically operate.

Question 13

Do you think that only those studying for longer than 12 months should be permitted to bring their family members to the UK?

No.

This will of course deter people from studying in the UK. Furthermore, it is not consistent with internationally accepted human rights principles of family unity, and non-discrimination. These principles should be reflected in these proposals which are likely to have discriminatory effects for women. Women overwhelmingly assume child-care responsibilities and are subject to cultural norms which might make it unacceptable to travel alone.

Question 8

Do you think students wanting to study new courses should return home to apply from overseas?

No. There is nothing in the evidence that would suggest that this would be desirable either from the perspective of educational establishments, students or immigration control. See also above point about Article 10 ECHR which may potentially also come into play.

Question 14

Do you think that family members permitted to accompany the student should be prohibited from working?

No.

Article 6 (1) of the 1966 International Covenant on Economic, Social and Cultural Rights recognises the right to work which includes the right of everyone to the opportunity to gain work.  The rationale for the proposal is to limit access to public services and to limit unlawful work is not consistent with the terms of the UK’s reservation. This permits interference only for the purpose of protecting employment opportunities in the UK/parts of the UK.

Question 15

Do you agree that differential requirements for high and low risk students should be adopted?

No.

We have several concerns about this. They are as follows:

Race equality exemptions have historically been problematic. A constant theme of the former Race Monitor’s reports was that basing selections on previous adverse decisions meant that passengers were less likely to be given the benefit of the doubt. They were therefore more likely to be refused.

This will discriminate against people from countries or regions where corruption, state failure or inefficiency plagues administrations and is likely to have greater impacts on developing countries.

It is inherently unfair given that prospective applicants will be subject to more stringent testing simply on account of simply having ‘a risk profile’ as opposed to anything they have said or done.

Question 16

Do you believe that we should focus on the abuse of documentary evidence for maintenance and/or qualifications as the basis of differential treatment?

No.

See above.  We also agree with the comments made by the Immigration Law Practitioner’s Association in their response – the figures are difficult to rely upon given that they could simply be representative of higher numbers of applicants applying from those countries, or representative of the fact that more rigorous checking procedures are in place in certain countries.

Question 17

Do you believe that we should also, or alternatively look at the sponsors rating as a basis for differential treatment?

No.

We agree with the comments by ILPA in their response to this consultation.

Question 18

Do you think that more should be done to raise accreditation and inspection standards to ensure the quality of education provision within private institutions of further and higher education for Tier 4 purposes?

No (not through the use of immigration law).

We do not believe that the question of regulation of educational standards is one for immigration law. This is better dealt with the context of education, and should be left to regulators in that friend to determine.

Question 19

In the light of the proposals described in this document, what do you think will be the main advantages/disadvantages, including any financial impacts, to you, your business or your sector?

We will not directly be affected however see the introduction to this paper for the potential economic impacts for the UK of reducing student numbers.

JCWI Response to Student Visa Consultation – part 1