Borders, Citizenship and Immigration Bill [HL]

I thank the noble Lord for that warning before I say anything else. In speaking to this group of amendments, I do not regard the Question that the clause stand part to be consequential on any decision on Amendments 108E, 109, 110 and 110A. I have listened very carefully to a wide range of points made in the debate on the amendments and more generally on the clause. I must resist the amendments, but I want to go into the reasons very carefully. I do not apologise for going into detail in this longish script. I went through it in great detail with my team to ensure that it answered most of the questions. I think that is useful for Hansard and the Committee. Members of the Committee may be aware that we have reconsidered the proposed policy for tier 2 with regard to the maximum length of leave. We have changed our policy and will now grant a tier 4 general student studying a course at degree level or above leave to enter or remain for the duration of their course, as under the current system. I think this is a significant change and one which makes a lot of sense. I am grateful for the conversations I have had with a number of Members of this Committee in reaching this decision. I am sure noble Lords will appreciate that the change is intended to ensure that international students wishing to study comparatively longer courses, such as medicine, are not deterred from coming to the United Kingdom to undertake their studies. Thus, I hope I have provided the House with reassurance that flexibility in the rules allows the Government to make very rapid decisions such as this. This is a fundamental part of the points-based system but, for understandable reasons, primary legislation is needed to underpin certain aspects of the system. Clause 47 is thus essential to the operation of tier 4 as it allows for the control of foreign students once they have entered the United Kingdom to study at a licensed institution. It is the Government’s intention that the restriction on studies would be placed on those migrants granted leave to enter or remain as tier 4 migrants; that is, students. Furthermore, such a restriction will restrict a migrant to studying at a specified institution, rather than restricting their chosen course of study. I say to the noble Baroness, Lady Hanham, that I can provide an absolutely clear and unequivocal reassurance to the Committee that the Government do not intend to use this provision to prevent students from moving courses within the same sponsoring institution. By imposing a restriction on a migrant, so that he can study only at a specified institution, he would have to apply to the UK Border Agency to vary the conditions of his leave should he wish to change institution. This will allow the UK Border Agency to check that the institution to which the migrant wishes to move is a bona fide education provider, with a sponsor licence. Having the ability to link a student to a particular licensed institution is integral to the successful operation of tier 4, the student tier of the points-based system. I note that these amendments seek to probe why the Government believe the clause should provide a broad power to restrict a person’s studies. I understand why Members of the Committee may wish to restrict this power further so that, on the face of the Bill, we are very specific about what this restriction means and on whom it may be imposed. However, it is usual practice for the overall architecture of the immigration system to be set out in primary legislation, with the Immigration Rules containing the detail of how the power will apply. While I appreciate that noble Lords may have their reservations about this approach, the ability to amend the Immigration Rules, rather than having to amend primary legislation, is an essential tool which is vital to ensure that necessary legislative changes can be implemented quickly and effectively, as shown with the point I mentioned about the maximum length of stay for people doing a study. As Members of the Committee will be aware, we take seriously our duty to consult widely before making changes to the Immigration Rules and, more often than not, our rules have been prayed against to allow the opportunity for debate in the House. With that in mind, Clause 47 was deliberately drafted in this way in order to achieve consistency with the wording used in relation to the imposition of other conditions under Section 3 of the Immigration Act 1971—in particular, the condition restricting a migrant’s employment or occupation. Under the skilled-worker tier, tier 2, of the points-based system, the Immigration Rules set out the conditions on a migrant’s employment, including a restriction on taking any employment other than with his licensed sponsor, supplementary employment that is outside of his normal working hours and voluntary work. We envisage that the condition this clause will allow us to impose on a migrant in relation to his studies will operate in much the same way, with the Immigration Rules specifying where these restrictions will apply, clearly stating that the restriction will be in relation to where the migrant studies and will be imposed on those granted leave to enter or remain under tier 4. As I explained earlier, a student applying for leave to enter or remain under tier 4—the general student category of the points-based system—will be granted leave for the duration of their course. With such potentially long grants of leave that will cover a student’s entire course, it will be of even greater importance that we make clear the procedures a student will need to follow should he wish to change to a new institution. I must resist Amendment 110 because I am confident that the revised guidance, which I will address shortly, that will be published when we make changes to the Immigration Rules in order to impose this condition on tier 4 students, will specify exactly what a student will need to do if he or she wishes to change institution, in terms of the requirement for him to submit a new application to the UK Border Agency. The revised guidance will also make clear the likely timeframes for consideration of an application, so that a student is able to submit his application to allow him to take up his studies at the new institution in good time. I also think it would be inappropriate to specify in primary legislation that this type of application merits more prompt consideration than any other type of application for leave to remain as Amendment 110 suggests. Other applications for leave to remain may have equally or more compelling reasons for immediate consideration, and for which a migrant is paying a fee and expecting similar high standards of customer service. Provided a student meets the points requirement for tier 4, which he will be able to do by having a valid visa letter from a UK Border Agency-licensed sponsor and by meeting the maintenance requirement for extension applications, the application to change institution should be relatively straightforward and therefore considered within our published service standard timescales for postal and in-person applications. The border force aims to decide 70 per cent of postal applications within 4 weeks, 20 working days, and 90 per cent within 70 working days. In addition, albeit subject to higher application fees for a premium service, the border force aims to decide 90 per cent of applications made in person at a public inquiry office within 24 hours. Turning to Amendment 110A, we believe that amending the clause in this way will seriously undermine one of the key parts of tier 4 of the points-based system, essentially creating two distinct categories of student; namely, those granted leave to enter or remain under tier 4 before enactment of this clause and those granted leave under tier 4 after enactment. Let me first make clear to Members of the Committee that the provisions of subsection (2) are not retrospective. While we wish to be able to add the condition to all those who have been granted leave as a tier 4 student, if such a student changed institution between the launch of tier 4 and Royal Assent, without notifying the UK Border Agency of this change, he would not be subject to prosecution under Section 3(1)(c) of the Immigration Act 1971, nor would he be subject to removal under Section 10(1)(a) of the Immigration and Asylum Act 1999 for breaching his conditions of stay. Furthermore, there is no intention to impose this condition on any of the students already in the United Kingdom under the terms of the current student rules that will be deleted on the introduction of tier 4. Only those students that UK Border Agency-licensed education providers bring to the UK under tier 4 from the end of March, or those existing students who will need to apply to extend their leave to remain under tier 4 after its launch in March, will be subject to this condition. It may be helpful to the Committee if I explain how we will implement this condition. As soon as we have secured Royal Assent, it is our intention to amend the Immigration Rules, specifying that in addition to the conditions restricting a student’s employment, we will also add a further condition restricting the student to studying at the educational institution that is acting as the student’s sponsor under tier 4. As is usual practice, the Immigration Rules will be laid before Parliament for 21 days before coming into force, and we will look to publish revised guidance for tier 4 students around what this change will mean for them when we lay the rules. Once the rules are in force, the UK Border Agency will write to all migrants who had been granted leave to enter or remain under tier 4, informing them that they will, from the date of the letter, be subject to this condition. Hence, the condition will apply only from when the student is notified. At the same time, we will also inform these students of the potential consequences of any subsequent breach. Once subject to this condition, a tier 4 student would need to apply to the UK Border Agency to vary the conditions on their stay before moving to a new institution. If we were not able to apply this condition to those granted leave between the launch of tier 4 at the end of March and enactment of the clause, there would be a pool of students who could move institution without our approval throughout the duration of their stay. We have revisited the policy on the maximum length of leave a student may be granted so that he may be granted leave for the full duration of his course, which could be five, six or even seven years in some instances. It is vital that the conditions of stay are applied equally to all students in the United Kingdom under the new system. If this were not the case, genuine students would risk being duped by bogus colleges which may charge high fees for non-existent courses. These colleges damage the UK’s excellent reputation for education provision abroad, which has been referred to by a number of speakers, not least the noble Baroness, Lady Finlay. The noble Baroness referred to value. These students are of great value to the United Kingdom, both culturally, as has been said, and financially, to the sum of £2.5 billion in tuition fees alone last year. That is a very significant amount of money and it is very important for this nation. Applying this condition to all those granted leave under tier 4 will make it much simpler for all such students to understand what is required of them when changing institution. It will be easier for the education providers that advise their students on what they will need to do when seeking to change institution. Applying the condition across the board to all tier 4 students will mean there is just one process for all. I do not apologise for going through that background because it is important to understand where we are coming from. The noble Baroness, Lady Hanham, asked how applications will be considered. Provided the student meets the points’ requirement for tier 4, an application to change institutions should be very straightforward and will be considered within our standard service timescales, which are clearly laid out, and I touched on them earlier. The noble Lord, Lord Wallace, asked whether we have fully consulted with Universities UK. Yes, we have consulted it on this provision. Officials at the Home Office and the UK border force have regular meetings with Universities UK to consult on tier 4 of the points-based system. The noble Lord, Lord Wallace, and the noble Baroness, Lady Finlay, asked about PhD students. As now, we will grant leave for the duration of the student’s course, as specified by the sponsoring education institutions. If a PhD student does not complete his course within this time period—I know that happens because, goodness me, they really go on sometimes—he will be able to apply for an extension of his leave. The revised maintenance requirement for extension applications recognises the progress that a student has made to date without recourse to public funds. The noble Baroness, Lady Finlay, mentioned distance learning. Students coming to the UK for short periods of study and do not intend to work will be able to come as student visitors. That route sits outside the points-based system and does not require the same sponsorship and maintenance requirements as under tier 4 because they may only stay for up to six months and cannot work. The tier 4 requirements do not apply. The noble Lord, Lord Brooke, asked whether students in language schools were in higher education. The answer is yes; students who intend to study are counted within this category. I hope that that covers most of the extra points. Perhaps Members of the Committee will come back to me if there is anything that I have not covered and I will get back to them in writing. I hope that this response deals with the Question that Clause 47 should stand part of the Bill and I would be grateful if the noble Baroness would withdraw her amendment.