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Schools Immigration Update - Dealing with Post-Brexit and Coronavirus Issues

on Friday, 19 March 2021.

The effects of Brexit and the coronavirus pandemic continue to impact independent schools with international staff and students. This article explores some of the immigration issues which schools are currently grappling with.

Do We Need to Notify the Local Authority That a Pupil Is Living in a Private Fostering Arrangement?

Since the start of the current lockdown many international boarders will be living with an educational guardian or a family friend. In addition to ensuring that they continue to meet their safeguarding obligations in relation to these pupils, schools will also need to consider whether the private fostering regulations are triggered in these situations. A private fostering arrangement arises where a child under the age of 16 (or under 18 if they have disabilities) is accommodated by an adult who is not a close relative and that arrangement lasts (or is intended to last) for 28 days or more. For pupils who remained in the UK with their guardian over the Christmas holiday and have not returned to school since, that deadline will have already passed.

A close relative for these purposes is defined as a grandparent, sibling, step-parent, uncle or aunt.

Where a private fostering arrangement arises then the school, the guardian and the parents are obliged to report the arrangement to the relevant local authority. Where the pupil holds a Child Student (or Tier 4 Child) visa sponsored by the school, failure to report the private fostering arrangement is a breach of the school's sponsor duties which could lead to the school's licence being revoked. Evidence of the report made by the school to the local authority must be retained to demonstrate that this duty has been complied with.

Schools are also advised to report changes in living arrangements (eg from boarding to day pupil) to the Home Office through the school's Sponsorship Management System. Such a change is likely to be considered 'a significant change' in their circumstances and therefore should be reported. That report would be in addition to the report to the local authority where a private fostering arrangement has arisen.

AEGIS have published a useful blogpost on this topic which can be found here.

Should We Be Checking That EEA National Staff Have Applied Under the EU Settlement Scheme?

Since the end of the Brexit transition period on 31 December 2020, the EU's free movement rules no longer apply in the UK and so European Economic Area ('EEA') nationals must be granted immigration permission to live, work and study here. In respect of EEA nationals already employed by schools, where their residence in the UK commenced before the end of the transition period they are entitled to submit a free application for permission to remain in the UK under the Government's EU Settlement Scheme ('EUSS'). The deadline for applying is 30 June 2021. The permission granted under the EUSS replicates the rights enjoyed under EU free movement rules.

Schools are not required to take any specific steps in relation to the EUSS - in particular, employers are not required to check that employees have applied and been granted status - but at the very least schools should consider contacting affected employees to ensure that they are aware of the EUSS and the deadline for applying.

The documents schools can accept in order to comply with the UK's preventing illegal working legislation will not change until 30 June 2021, but anyone who have an entitlement to apply under the EUSS must be granted some other form of immigration permission to live and work here.

What About Checks on EEA National Students?

Schools which hold a sponsor licence will also need to think a little differently about their EEA national pupils: Student sponsors are required to ensure that all international students have the necessary immigration permission to study in the UK. Sponsors should therefore be communicating with EEA national families to ensure they are aware of the EUSS and advising them that pupils who will remain at the school after 30 June 2021 (when the EUSS closes) need to be able to demonstrate that they have applied under the Scheme.

What Do We Do If We Want to Hire EEA Nationals?

To allow for the fact that UK employers are no longer able to rely the pool of labour from the EEA any more, the Government has made some changes to the immigration system. Perhaps the most significant of these has been to replace the Tier 2 (General) category - for sponsorship of skilled foreign-national workers - with a new 'Skilled Worker' category.

Independent schools which already held a Tier 2 (General) sponsor licence will find that it has been automatically converted to a 'Skilled Worker' licence. Schools which do not already hold a Skilled Worker Sponsor Licence may want to consider applying for one - particularly if they may need to look overseas to fill vacancies in the future.

The process for employing workers under the Skilled Worker category will be broadly the same as it was for Tier 2 (General): the prospective employer must sponsor the employee (by issuing them with a 'Certificate of Sponsorship') following which the worker applies for immigration permission either overseas or (where permitted to do so) from within the UK. However, there are some crucial differences:

  • The minimum skill level for the job the sponsored worker will be filling has reduced from RQF level 6 to RQF level 3, meaning that many more jobs are now eligible for sponsorship.
  • The Resident Labour Market test, which required employers to comply with a prescriptive recruitment exercise before sponsorship could take place, has been scrapped. However, employers are still required to keep evidence of their recruitment practices and provide other evidence to demonstrate that the job on offer is genuine.
  • The minimum salary threshold for most roles has been reduced from £30,000 to £25,600 (or the going rate for the relevant occupation code, whichever is higher). Salaries for teaching jobs are based on the relevant national pay scales.

Skilled Workers must satisfy an English language requirement. Additionally, schools will need to be aware of the requirement that certain sponsored roles require the applicant to undergo overseas criminal records checks before submitting their visa application.

The Government have no plans to introduce a general immigration category for workers coming to the UK to fill jobs skilled below RQF level 3. There are plans for an unsponsored category for highly skilled workers, although no further details have been released so it would seem that such a scheme is still some way off.

How Does the New Child Student Visa Route Differ from Tier 4?

On 5 October 2020, Tier 4 of the immigration system was replaced by the 'Student' and 'Child Student' categories. As far as independent schools are concerned though little has actually changed to the operation of these routes apart from the nomenclature.

Of some significance though is the fact that Student and Child Student visa applications can be submitted up to six months before the course starts, as opposed to three months under the Tier 4 categories. This will help with planning.

Another interesting change is that Students and Child Students applying to extend their permission to stay from within the UK will no longer be required to satisfy the financial requirement if they have been in the UK for more than 12 months.

For further information about immigration issues affecting your school, please contact Tom Brett Young in our Immigration Law on 07393 148352 or complete the form below.

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