House of Commons - Home Affairs Committee

Student Visas - Home Affairs Committee Contents

Written evidence submitted by the Immigration Law Practitioners' Association (ILPA) (SV33)

1. The Immigration Law Practitioners' Association (ILPA) is a professional association with some 900 members (individuals and organisations), the majority of whom are barristers, solicitors and advocates practising in all aspects of immigration, asylum and nationality law. Academics, non-governmental organisations and individuals with an interest in the law are also members. Established over 25 years ago, ILPA exists to promote and improve advice and representation in immigration, asylum and nationality law, through an extensive programme of training and disseminating information and by providing evidence-based research and opinion. ILPA is represented on numerous Government, including UK Border Agency, and other, advisory groups and has given written and oral evidence to the Home Affairs Committee on many occasions, most recently for the enquiry into the immigration cap.

THE TARGET OF REDUCING NET MIGRATION

2. The Coalition Agreement makes reference to reducing the numbers of non-EU economic migrants.[20] It makes no mention of students in the context of a cap; it does refer to student migration in the context of reducing abuse.[21] The Home Secretary said in a statement to the House of Commons:

"It is this government's aim to reduce the level of net migration back down to the levels of the 1990s - tens of thousands each year, not hundreds of thousands."[22]

3. Net migration (those entering the UK for more than one year minus those leaving the UK) is affected by the number of British nationals/settled persons who leave the UK each year and also by the number of persons who migrate from within the EU. Both are outside the Government's control.[23] Those who come to the UK seeking protection or to join family members are able to assert a right to stay on the basis of the UK's international obligations and thus the Government's ability to stop such migration is circumscribed. That leaves the Government the options of cutting migration for work, or cutting student numbers. Students are a numerically larger group of migrants than those migrating for work and thus cutting student migration can be perceived as central to the Government's aspiration to show any progress toward its aim of reducing net migration.

4. It is unclear how numerical caps will generate the "confidence in the [immigration] system" that the Coalition Programme[24] describes as the reason for introducing them if it is perceived that the caps are not having the effect of reducing net migration or if they are seen as being imposed on particular groups simply to meet the numerical target. It would be useful for the Home Affairs Committee to explore in this enquiry the extent to which attempts to meet the cap by cutting student migration will allow the Government to achieve the broader range of objectives on immigration that it describes in the Coalition Programme, or indeed to achieve the broader objectives therein described.

5. The contribution that cutting student migration from outside the European Union might make toward meeting the target is largely illusory. A student who enters the UK, stays for two years and then leaves, contributes to raising the net migration figure by one in the year they arrive, and to lowering it by one in the year that they leave. Years spent in the UK as a student do not count toward an individual's applying for settlement, save where a discretionary application under the long residence rule is made if a person has had continuous leave in the UK for 10 years or more.[25] Such persons may in any event have powerful cases for being allowed to remain based on Article 8 of the European Convention on Human Rights (the right to private and family life). Students who stay after their studies do so because they have met the requirements to switch into another category of the immigration rules altogether; for example they have married or formed a civil partnership, or have met the criteria to be allowed to remain in the UK to work.

6. Student visas are granted for a specific purpose, for a limited period. Students are not allowed, under the conditions of their stay, to have recourse to public funds and public housing while studying in the UK. They must prove that they can cover the full costs of maintaining themselves before they are allowed to come to the UK for to study. They pay fees to the institutions where they are studying and meet their own costs of living. They can work for no more than 20 hours a week, with a prohibition on filing permanent vacancies. Those institutions employ British nationals and settled persons, including in areas where there are few other major employers. Estimates of the value of international students to the UK range from £8.5billion to £12.5 billion.[26] The benefits of the links forged by being able to study in the UK, both for the individuals concerned and others in the countries from which they come, can be examined as to their economical, social and political effects).[27] For these reasons it would appear appropriate for the Home Affairs Committee to examine the target of reducing net migration and the immigration and broader commitments in the coalition programme, in commenting on the proposals for students.

MANAGEMENT OF THE SYSTEM

7. The UK Border Agency, like many other Government departments, faces significant cuts in its budget. It would be useful for the Home Affairs Committee to examine how the resource implications of the proposals.

8. The Highly Trusted Sponsor scheme depends for its success on adequate resourcing of work to determine whether an institution qualifies and continues to qualify for this status, and for this status, and if the benefits to an institution of such status are to be made a reality. It would be helpful for the Committee to explore the extent to which these resources are available, for example by questioning the Agency on the extent to which resources would allow it to implement specific measures recommended in the Committee's Eleventh report of 2008-2009.[28]

9. In this regard, it is important to be aware that the current system of dealing with student applications has been running since late February 2010 when the system moved to being wholly one based on the issuing of secure online Certificates of Acceptance for Studies, together with mandatory reporting by educational institutions on students' arrival and attendance. Since then there have been further changes, establishing the Highly Trusted Sponsor Scheme, providing for mandatory English language tests, changing English language requirements, imposing new restrictions on student's bringing dependants and on the number of hours certain students can work. The Committee might usefully consider the extent to which these changes have addressed concerns about the integrity of the student immigration systems, or indeed whether any research has been carried out to understand what the effects of these changes have been.

10. The question of resources is also pertinent to other aspects of the proposals. It is proposed that the students return home between courses (question 8 in the UK Border Agency consultation paper). This has the potential to generate large numbers of applications to posts, requiring a quick turnaround, and peaking at particular times of year. Secure English language tests showing a level of B2 across all four components (questions 5 and 6 of the UK Border Agency consultation paper) would also appear to require of the UK Border Agency that it is able to produce and administer a scheme for mapping International English Language Testing System scores onto Common European Framework of reference for Languages. This would appear to be resource intensive and, based on experience to date, something that institutions are better placed to do than the Agency.

11. It is unclear that the authors of the UK Border Agency consultation paper have sufficient knowledge of the routes by which overseas students come to study at UK universities. In ILPA members' experience, a significant percentage of clients go to university in the UK following study in the UK on courses that are not at degree level. Any suggestion in the consultation paper that one can remove those courses and leave universities unscathed should be examined with scepticism.

POTENTIAL DISCRIMINATION

12. Proposals to restrict dependants' ability to work have the potential to give rise to discrimination against women. Of the 489,000 students entering the UK in 2009, 198,000 were student visitors coming for less than six months, who are not entitled to bring their dependants with them.[29] In 2009, 21,130 visas were granted for dependants of students, making students the category of migrants least likely to bring dependants with them.[30] The research available indicates that more accompanying spouses of workers are women than men.[31] If this is also the case for students, and ILPA has not seen any statistics that break down student applications by gender—these could usefully be requested, then the proposals risk discriminating against women. However, there may also be risks of discrimination against women in not allowing the spouses of women students to work. When a couple makes a decision to come to another country so that one of them can study there, one consideration for many couples is whether the other spouse is being asked to put his/her career on hold. In many societies, it remains less acceptable for a man to do so for his wife than vice versa. Similarly, there remain many cultures where the prospect of a married woman being permitted to live overseas without her husband for an extended period would not be acceptable.

13. As to discrimination on the grounds of race, this question is relevant to the question of "risk profiling". As indicated by the recent Chief Inspector of the UK Border Agency's report on visa services in Abu Dhabi and Islamabad, there may be situations in which risk profiling on the basis of national origin becomes discrimination on that basis.[32] The less objective evidence for the risk profile that there is; the greater the risk of discrimination. There are also risks of direct discrimination in differential treatment of those from non-"majority English speaking countries" where an affected individual is fluent in English or has the ability rapidly to become so and in the construction of the list non-'majority English speaking countries.[33]

POST STUDY WORK CATEGORY

14. In ILPA members' experience the possibility of work experience in the UK following study here is a factor in many persons' decisions to come to the UK for degree and post-graduate level study. Any removal of the post-study work category thus appears likely primarily to deter those who have the greatest range of immigration options, and have the option of studying in other countries. The UK's institutions are competing with others internationally for these students and the Committee may wish to consider the benefit to academic development in the UK (as well as wider economic benefits) of such high calibre students choosing the UK. It is worth recalling that precursors of the Post-Study work category, the Science and Engineering Graduates Scheme and the Fresh Talent Working in Scotland Scheme, were designed to attract students who would then fill gaps in the UK labour market, whether in particular specialisms, as with science and engineering, or in a part of the UK, as in the Fresh Talent Working in Scotland Scheme, because those workers were difficult to attract. The Post-Study Work category is a temporary category. If those working in this category are to stay longer in the UK then this is because they have met the requirements for other categories of the immigration rules, such as Tier 2, now subject to a cap.

15. We recall that the Migration Advisory Committee in its December 2009 study Analysis of the Points Based System stated:

"Post-Study Work Route (PSWR)

We considered the options of recommending closure of the PSWR and reducing the granted leave to remain. We considered both the effects on university funding and graduate unemployment through labour market displacement.

We saw no evidence of displacement...and found that the effect of PSWR closure on current levels of university funding was likely to be comparatively small in relation to overall university budgets, but significant, and likely to impact on some courses and institutions harder than others. On balance, we recommend retaining the PSWR and the current leave entitlement of two years.[34]

STUDENTS BEING ABLE TO WORK

16. That students can work for 20 hours per week is not in itself a matter of complexity, although it was made more complicated when the rules were changed so that some students can work 10 hours per week and others 20. Complexity could be reduced by making it simpler for an employer to verify whether a student has permission to work, by identifying clearly which documents will be acceptable, and if the permission to remain vignette states that the person has been granted permission as a student. Insofar as there is complexity in the current system it arises where students work for more than one employer and no one employer is in a position to know whether they are working elsewhere. It may also be difficult for an employer to know whether a particular week is term time, when the 20 hour limit applies, or vacation, when it does not. This problem would not be cured by limiting students to working "on campus" during the week and elsewhere at weekends, It cannot be assumed that there is work available on campus, nor that students study during the week and take weekends off. Electronic access to research papers etc. and weekend access to laboratories etc. allows for more flexible working patterns. What matters is that information about what work a student can do is easy for students and employers to understand, its application in a particular case easy to verify, and that such information is widely known. It is unclear that proposals would assist in meeting these needs.

17. ILPA would be happy to assist the Committee by providing further information if this would be useful.

January 2011

20 Paragraph 17, page 21, see

www.direct.gov.uk/prod_consum_dg/groups/dg_digitalassets/@dg/@en/documents/digitalasset/dg_187876.pdf Back

21 Ibid. Back

22 The Home Secretary, Rt Hon Ms Theresa May MP, Hansard HC 28 June 2010 Col 585. Back

23 See Estimating International Migration: An exploration of the definitional differences between the Labour Force Survey, Annual Population Survey, International Passenger Survey and Long-Term International Migration, Office for National Statistics, undated, available at

www.statistics.gov.uk/downloads/theme_population/International_migration_data_differences.pdf Back

24 Op cit, paragraph 17, page 21. Back

25 See HC 395, Immigration Rules, as amended, paragraphs 276A to 276D. Back

26 For estimates of the value of international students to the UK economy see the British Council's 2007 Study Global Value available at www.britishcouncil.org/eumd-information-research-global-value.htm and see e.g. oral evidence of Tony Millns, English UK, to the Home Affairs Committee, 2 June 2009, q 17, published in the Committee's 11th report of session 2008-09 Bogus Colleges, HC 595, available at

www.publications.parliament.uk/pa/cm200809/cmselect/cmhaff/595/59502.htm Back