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IS 'ABUSE' THE QUESTION OR THE ANSWER?

Posted by: Gherson Immigration

My abiding perception after listening to the Home Office on Thursday is that it is all about 'abuse'. Stamp out abuse and the migration figures will start to resemble the government's projected targets.

When Tier 4 was introduced, I thought I knew what 'abuse' was: bogus colleges that fronted as educational establishments with the sole aim of sponsoring illegal workers without any intention on either side to undertake a course of study. These abusers were giving genuine colleges and students a bad name and causing undue scrutiny, making obtaining a visa harder for everyone.

Which was why the advent of the PBS and Tier 4 was so welcome. Genuine colleges in the business to provide a UK education to overseas students were very happy to jump through the sometimes quite onerous hoops to prove their worth and capture their share of the market.

Glyn Williams, the Head of Migration Policy at the Home Office, as part of his presentation, pointed to a 'bubble' on a graph in relation to an increase in overseas students to the UK in the period following the introduction of Tier 4 and told us that the increase was due to all of the people abusing the system, who exploited an easier regime to come to the UK for their own purposes.

Why is the government so adamant that this increase could only have been the result of 'abuse'? Has no account been taken of the fact that the colleges themselves, having vested a large amount of time, effort and money to gain the right to recruit students from overseas, upped their marketing presence to attract more foreign students? Or that the potential students themselves, less jaded by the notion that 'visas for the UK were too difficult' were persuaded to invest their parents' savings for a prestigious overseas education in the UK?

Despite the increased burden of responsibility placed upon colleges under Tier 4, they bought into the idea that, once designated as 'highly trusted', they would have greater autonomy and, therefore, an ability to better manage their business of providing an education to their students. At first their goal was 'A'-rated status, and then later, when teething problems with the PBS required them to repeat a more detailed assessment to become highly trusted, they did this too.

But there is a huge disparity between the public and private sectors. What possible reason can there be for the public colleges and universities to be exempt from certain criteria and scrutiny - surely if the requirements are necessary, then they should apply across the board? Instead, private colleges are having to act as assessor and gate-keeper for the immigration authorities - it was a serious point when a gentleman at the front of the room, stood up and 'joked' that although his usual work attire was a suit, he should more accurately be wearing a UKBA uniform.

We are hearing of clients who are private colleges, but highly trusted, with a track record of liaising closely with the UKBA to ensure continued and excellent compliance, suddenly finding that there has been a considerable sea-change in the once cooperative approach of the immigration authorities. I am wary of applying the word 'witch-hunt', but one such institution has had multiple unannounced inspections this year alone, and the latest one was done in a worryingly aggressive manner. As a result, they have been left with a sense that there is a determination on the part of the UKBA to find them wanting.

'Abuse' now takes a very different shape to that previously ascribed. Colleges can be penalised for issuing Certificates of Acceptance of Study (CAS) that are ultimately refused, even if the refusal is for a bureaucratic technicality. Many potential students who are otherwise very eligible, but omit to include the correct documents, find themselves rejected, then have to obtain a new CAS before reapplying to study the same course at the same college. If they make the mistake of thinking that the same CAS will serve a repeat application, they (as has occurred) may be accused of attempting to fraudulently obtain a visa, with draconian consequences. Often the bureaucracy can lead to delays that mean that a student misses the original course start date, and another reason for refusal looms - while all the time the college is racking up negative points by issuing another potentially fruitless CAS.

Whilst the colleges and students are not the only ones in the equation capable of making a mistake, they are the only ones apparently accountable - even when the mistake emanates from the UKBA itself. We recently heard of a group of students who found their leave to remain mysteriously curtailed with immediate effect partway through their studies and, in some cases, just before important exams. It transpired that someone at the UKBA had noticed that these students had had their original CAS withdrawn (after a refusal of entry clearance) but didn't then note that the grant of entry clearance arose from a subsequent, valid CAS, and so curtailed the grant of leave to remain (relating to the later CAS). This was promptly explained to the UKBA, but several months later, both the college and some of the students remain in limbo awaiting a confirmation from the UKBA that normal service may be resumed.

Another example of the 'guilty until proven innocent' approach is typified in relation to students that have restricted permission to work during term time, but unlimited permission during holiday periods. We have had students that have been studying in the UK for several years, progressing well on their degree course, who travel out of the UK for a weekend and are then refused readmission for 'overworking' and are just 'locked out'. Similarly, other students have been arrested and imprisoned for the same transgression. But again, the UKBA were found to have made a mistake because the time spent 'overworking' had been in holiday periods. But during the weeks that these injustices took to resolve, the students were physically unable to attend their courses, so had their failure to attend reported against them and, therefore, ironically fell foul of the regulations anyway.

My experience is likely to be only the tip of the iceberg. All those unable to afford legal advice, or so disheartened at the prospect of being able to challenge the omnipotence of the Home Office, give up and become another successful statistic of an 'abuse' - that never happened. And again the colleges are penalised for the rate of 'drop outs'.

I'm not saying that there is no abuse or that abuse has never occurred, nor indeed that the Home Office shouldn't have measures in place to deal with abuse that does occur. But that there is a 'presumption of abuse' is manifestly unfair.

Recently the Home Office's mandate to reduce migration from "hundreds of thousands to tens of thousands" has caused fairness to fall by the wayside. The message is clear: the government has a target to meet, and any injustice is just collateral damage in pursuit of the overall aim.

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