Collaborative provision under the UKBA’s new Tier 4 Policy Guidance

Smita Jamdar

Having returned to the office after an Association of Heads of University Administration conference at which the theme was internationalisation and at which the barriers posed by immigration policy were frequently referenced, I was thrilled to find that the UKBA had revised again its Policy Guidance for Tier 4 Sponsors to take effect from 6 April 2012. Over the last few months I had become very familiar with the prequels: delightfully vague and sporadically incoherent documents that left open plenty of scope for debate, uncertainty and speculation, all characteristics that one would of course hope to find in an important policy document upon which many billions of pounds worth of UK income depends.

The issue that I have been most asked to muse on to date was the relationship with partners and in what circumstances universities and colleges can include these partners on their own sponsorship licences. The issue gained topicality as a result of CAS number controls imposed during the transition to HTS for private providers, and also the changes to work rights for students whose sponsors are not “recognised bodies” or in receipt of public funds as a HEI or FEC.

The previous Guidance stated that partner institutions could be included on an institution’s licence as a “branch” where there was common ownership or control. One of the examples of common ownership or control given in the Guidance was:

“one entity is related to the other entity as both are party to a joint venture agreement”.

What gloriously imprecise wording. Unsurprisingly, many partner providers tried to argue that the standard validation, franchise and other collaboration agreement in the sector were indeed “joint venture agreements” and therefore the partners could be named as a branch on the institution’s licence. However, this superficially seductive argument overlooked the fundamental point that these standard collaboration agreements could hardly be said to constitute any form of common ownership or control. Institutions unwilling to risk their own HTS and licence naturally favoured a more conservative interpretation as did the UKBA on those occasions when they were willing to express a firm view.

The latest version of the Guidance finally resolves this ambiguity, by refining the example as follows:

“one entity is related to the other entity as both entities are party to a joint venture agreement which has created a new separate legal entity”.

So SPVs good, contractual collaborations bad as far the “branch” category is concerned. What is not clear is what impact this will have for the licence of any institution that has already cited a partner provider as a branch on the strength of a validation or franchising agreement.

The Guidance does include a new section on “partner institutions”, but this is limited to certain providers of pre-sessional courses and to other partners where education is jointly delivered to students, but only if the partner itself already holds HTS and is subject to educational oversight.

For those who are interested, a more comprehensive analysis of changes to the Guidance will appear in our next HE bulletin.

Smita Jamdar
Partner and Head of Education
For and on behalf of SGH Martineau LLP
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From → General Interest

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