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Thomas
Thomas, Solicitor
Category: UK Immigration Law
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Experience:  BA (Hons), PgDip, Practising Solicitor
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My younger brother has been an overseas student for number

Resolved Question:

My younger brother has been an overseas student for number of years in UK and had his last student visa extended in Oct 2010 on the basis of a professional qualification course "ACCA" which is equivalent to NQF level 7 upon completion and starts at NQF level 6. His visa was valid until April 2013.

However, UKBA has withdrawn a sponsor licence of the tution provider where he was studying as a result of which his visa has been limited to 60 days. He obviously need to apply to UKBA for an extension of his visa before his current visa expires (now restricted) and therefore, need to secure a CAS with a new institution who is UKBA approved sponsor.

Please note the following

1. He hasn't made any progress with his previous course on the basis of which his visa was granted. He has made several attempts on exams but has been unsuccessful

2. He changed his course last year to another course at level NQF 5 while studying with previous tution provider (same college who issued CAS) but we have now been informed that UKBA was not informed of this change

2. He wishes to apply for an extension with a new institution but the course available is at NQF level 5 (which is below his previous course of study being at level 6)

I would like to know if he can make an application on the basis of a new course as this does not signifies progress from his previous course of study.
Submitted: 2 years ago.
Category: UK Immigration Law
Expert:  Thomas replied 2 years ago.

Hi

Thanks for your question.

There are a number of problems with this. The first is that he did not update his change in course last year with the UKBA. There is a condition of his visa (all visas in fact) that the holder must update the UKBA of any change in their circumstances. By not informing the UKBA of the change this is a breach of the conditions of his visa. The UKBA would be entitled to use this as a general ground for refusal for an otherwise legitimate extension application.

The second complication is his proposal to now switch to a course which is at NQF level 5. You will see from the following link that it is required that in order to be eligible for Tier 4 visa one must be studying a course at NQF level 6:-
http://www.ukba.homeoffice.gov.uk/visas-immigration/studying/adult-students/can-you-apply/course/

Therefore he does not meet the eligibility criteria and they would be able to refuse on this basis.

The third problem, as you have identified, is that of academic progression. I accept that if the course he was most recently on was NQF5 and he is switching to NQF5 at the proposed new college that the it could not really be said that in this instance he has regressed. However his extension was granted at NQF6 (and was in fact probably the reason it was actually granted) and he then dropped down to NQF5 so there has been a historic regression since his previous extension. This would be another general ground of refusal which they could use.

For the above three reasons I would not be at all confident that he would be able to extend his visa. Essentially he would be asking the UKBA to exercise their discretion by not availing themselves in each case of their general right to refused. This is too much of a stretch unfortunately.

He can try his luck, but I would advise him to mentally prepare himself for a refusal.

It is also important to be mindful of the fact that if a visa national overstays their leave to remain by 28 days then they are regarded for the purpose of future visa application as an overstayer which is in and of itself a further general ground for refusal in all applications, save those based upon marriage/civil partnership (and some other family applications).


If this has been useful please kindly click accept so that I may be rewarded for my time. If you do not click accept your money stays with the site and I do not receive any credit for the time I have taken to answer your question. You will not be charged any further money for clicking accept.

If you wish for me to provide you with further guidance on any question you may have in the future then please submit a further question to the board requesting me either by my profile or by marking your question. “FAO Tom”.

Kind regards,


Tom
Expert:  Thomas replied 2 years ago.
I note you have not clicked accept to my answer. Is there any further information you require?

If you do not click accept then your deposit simply stays with the website and I receive absolutely no credit for the time I have taken to answer your question. Only when you click accept does a portion of your deposit actually transfer to me and you will not be charged any further money simply by clicking accept.

Please click accept. You will appreciate that I cannot work for free

Tom
Customer: replied 2 years ago.

Hi Tom

 

Thank you for your detailed reply and I apologise for not being able to come back earlier. Unfortunately, there are number of points in your reply (in fact most of them) which does not match my understanding of Tier 4 rules and I would like to know if I am missing a point!

 

The first point you made is that he did not inform UKBA of change in course last year. My understanding is that he does not have to if the new course is with the same education sponsor. It is a responsibility of the education provider to inform UKBA. Please follow the link http://www.ukba.homeoffice.gov.uk/visas-immigration/studying/adult-students/changes/ and see the heading "If you want to do a different course of study with your education provider". I cannot see how it is a responsibility of a student to inform UKBA as you advised.

 

The second point you raised is that he need to do a course at NQF level 6 to qualify for visa application under Tier 4. The details under the link you emailed refers to a course which "leads" to a qualification at or above NQF level 6. His new course is starting at NQF level 5 but the final qualification will be at level 6. I think there is a difference between UKBA saying "Course starting at Level 6" and "course that leads to a qualification at level 6". Your reply gives an indication of the earlier option whereas I think it is later.

 

Also it further mentions, if the course is below revised NQF level 6, it must be approved at or above level 4 on the NQF or QCF, if you are studying with a sponsor that has an A (Trusted) rating which his education provider has.

 

The final point is of academic regression which I need a bit of advise on. If we say that the course he was studying started at NQF level 6 and leads to qualification at NQF level 7 whereas his new course starts at NQF level 5 and leads to a qualification at NQF level 7, would this be considered an academic regression? I think this is a point which probably needs an experienced specific immigration advice rather than general.

 

I am sorry but I have not been totally satisfied with your advise based on my points above.

 

 

Expert:  Thomas replied 2 years ago.
Hi,

I will reply in about half an hour if that's okay..

Tom
Customer: replied 2 years ago.

Hi

 

That's absolutely okay.

Expert:  Thomas replied 2 years ago.
Thanks

Tom
Expert:  Thomas replied 2 years ago.
Hi,

I note the link that you refer to. There is a difference between "getting the permission of the UKBA" (which clearly he does not have to do) and "informing the UKBA".

If you refer to the same section you will see the following:-
"If your new course will end before your permission to stay expires, you must tell us by sending an email message toXXX@XXXXXX.XXX."

This means that he does not require permission, but he is obligated to update by email. I accept that it is not very clearly drafted, but it is the case. The breach is a minor breach though particulaly as the lack of clarity could be argued in your brother's favour.


There is a difference in respect of "leading to". The course that he switch to last year you referred to as ".. at level 5", so I took this to mean that it lead to level 5. If it was at level 5 and led to level 6 then you should be okay.


As to academic regression, if it is the case that the course is NQF5 leading to NQF7 then I accept that ultimately the final qualification is the same. Coupled with the fact that he has not been able to pass his exams I would say that it is not academic progression as such, perhaps not regression (though I would expect the UKBA to view it as regression) but nevetheless the requirement is to show progression and I find it hard to see how not passing exams and switching to a course presently at a lower NQF level (albeit leading to the same NQF ultimately) would be seen as academic progression by the UKBA.

I practice immigration law for a living, there is no science behind it and the above is from my experience dealing with he UKBA.

He has a chance but I would not be confident. Worth making the application but being prepared for a fight on appeal I would suggest.

Trust this clarifies, please click accept otherwise I do not get rewarded at all for the time I have taken to answer your question. I will answer your follow up questions.

Kind regards

Tom
Thomas, Solicitor
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Experience: BA (Hons), PgDip, Practising Solicitor
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