This article was first published on Lexis®PSL Immigration and Halsbury Law Exchange on 12 May 2014. Click for a free trial of Lexis®PSL and view the article here.

Immigration analysis: Are recent changes to immigration policy to blame for the decline in the number of international students coming to Britain? Alison Stanley, partner and head of the immigration team at Bindmans, explains the reasons behind this worrying trend and urges the government to reintroduce the post-work study visa with immediate effect.

Original news
Report: International science, technology, engineering and mathematics (STEM) students, LNB News 14/04/2014 98

The government has been called upon to rethink immigration policy and remove non-EU students from net migration figures in a report published by the House of Lords Science and Technology Committee. The Committee looked specifically at the number of international students in Science, Technology, Engineering and Mathematics (STEM) subjects and whether the UK’s immigration policy has any impact on these numbers. It concludes the government is simultaneously committed to reducing net migration and attracting increasing numbers of international students, a contradiction which could be removed by excluding students from net migration figures.

How have recent changes to the immigration regime affected the number of international students studying in the UK?
In 2009 an entirely new scheme for all international students was introduced. Since then, students have to be sponsored by an educational institution that is licensed by UK Visas and Immigration to sponsor students from abroad under Tier 4 of the points based system. This was a significant change that effectively shifted the major responsibility for checking the immigration status of students from the government to the academic institutions. Part of the reasoning behind the points based system was to make the system clearer and fairer, with points being allocated to prospective students for sponsorship by a licensed academic institution, for maintenance, and for English language. The considerable cost of administering the system and ensuring compliance has been met by the institutions.

What aspects of the immigration policy are dissuading students from studying in the UK?
Unfortunately, the aim of the new regime to be clear and fair to applicants has been foiled by the complexity of the scheme. The guidance for both academic institutions and students is extensive, much is badly drafted and both guidance documents have been repeatedly updated. By October 2013 the Immigration Rules relating to Tier 4 (General) had been amended no less than 22 times. The documentary requirements are strict, and there is no appeal right against a refusal of entry clearance as a student under Tier 4. A rejected applicant often has no option but to pay for a fresh visa application.

To make matters worse, students have been targeted in the push to bring down the overall numbers of migrants coming to the UK. This has been attempted by a number of methods. Entry clearance interviews have been introduced in targeted countries to assess English language ability and credibility. The amount of part-time work hours that students below degree level can undertake has been reduced.

But perhaps most importantly, the possibility of graduating students being permitted to stay on in the UK to work for a limited period has been abolished. For some years post-degree students have been able to work in the UK in any capacity for two years under the post-study work scheme. By all reports, for many students this was one of the attractions of studying in the UK. In April 2012 this visa was abolished. Organisations representing students and academic institutions have repeatedly stressed that it is this factor that is deterring international students from coming to the UK.

PSL Practical Point: The Immigration Rules were changed for those applying from 6 April 2014, to extend credibility testing to all Tier 4 (General) applicants. Also, those applying from 1 July 2011 to study at a privately funded institution have been granted leave without any part-time work entitlements.

Is the government likely to consider removing international students from the net migration figures?
This may sound like an issue only of interest to statisticians, but it is at the core of the reported dispute between the Home Office, who are trying to reduce overseas student numbers as part of the aim to reduce net migration to the UK, and the Treasury, who want to increase the numbers as international students contribute billions to the UK exchequer each year–in 2011 the Department for Business, Innovation & Skills’ report estimated that tuition fee income alone was over £4bn. At issue is whether international students who, by definition, are on a temporary visa should be counted as permanent migrants on arrival in the UK. The vast majority of international students return home after their studies, or in the past, after their short-term work period in the UK. There is no logical reason to include them in the net migration figures, unless and until they switch category into a visa that can lead to permanent residence. Many other countries exclude international students from their net migrations statistics and the issue has been under discussion within the coalition government for some time.

What is the current position on international students hoping to remain in the UK after completing their studies?
Currently, international students who have taken a degree in the UK can switch into employment here under Tier 2 of the points based system if they can secure a post with a sponsor licensed by UK Visas and Immigration, for a job earning at least £20,500 per year. This is the same route to employment as other non-EEA nationals, except in most cases, for graduates an employer will not have to undertake the ‘resident labour test’. Some professional roles which require on-the-job training such as lawyer, dentist, architect, optometrist etc can secure permission to work as a temporary worker under Tier 5. Up to 1900 graduates who want to set up their own business in the UK can apply under the Tier 1 (Graduate Entrepreneur) scheme. PhD students can apply to work on an employed or self-employed basis for up to a year after their studies.

How does the UK’s treatment of international students compare with other jurisdictions?
The international student market is highly competitive. Australia, Canada and the US are all competing for the international student dollar. Many other countries permit degree level students to work after their studies for a limited period. Abolishing the post-study work visa was an own goal and it should be re-introduced immediately.

What should immigration lawyers do next?
The Treasury has been reported as being in discussions with the Russell Group over how to attract more international students. Immigration practitioners who act for either students or academic institutions could speak to their MP about the impact of the abolition of the post-study work visa, and the importance to the economy of international students.

Interviewed by Jenny Rayner