Updates, commentary, training and advice on immigration and asylum law
Immigration bail training course out now
Home Office tries to tackle eGates problem that makes short-term study illegal
Credit: Hayley Smith on Twitter

Home Office tries to tackle eGates problem that makes short-term study illegal

Since 20 May 2019, people from Australia, Canada, Japan, New Zealand, Singapore, South Korea and the USA have been able to enter the UK using ePassport gates (‘eGates’). British and EU citizens have been able to use eGates since 2008.

The Home Secretary, Sajid Javid, said at the time that this would improve “fluidity for passengers” and “the passenger experience”.

Whilst many people have benefitted from not having to spend time queuing to see a Border Force officer in the immigration arrivals hall, not everyone is having such a fluid experience.

Short-term students are supposed to see an immigration officer

Under Part 3 of the Immigration Rules, non-visa nationals — that is, citizens of any country that is not on the visa national list at Appendix 2 of the Rules here, including all those mentioned above — can come to the UK for short-term study (‘STS’) of up to six months without getting a visa in advance. Those entering under this route also do not need to be sponsored under Tier 4 of the Points Based System. 

Instead, they can get immigration permission to study a short course directly from the Border Force officer on arrival in the UK. This is in the form of a stamp placed into the passport confirming that the student has the right to study under the STS route. (Anyone from a country on the visa national list and those planning to study English language for up to 11 months must apply for prior entry clearance.)

Unfortunately the introduction of eGates has meant that some students who should have seen a Border Force officer and been entered into the UK under the STS route have instead come in through an eGate. This means that they are in the UK as a visitor, not a student.

This is important because under Appendix V of the Immigration Rules, anyone who is in the UK as a visitor can only study in the UK for up to 30 days during their visit providing study is not the main purpose for their visit (unless they are a school child on an educational visit or exchange).

Potentially serious risks for the student and the education provider

Failing to observe a condition of leave — section 24(1)(b)(ii) Immigration Act 1971 — is an immigration breach which can lead to future visa applications being refused. It is also a criminal offence (although actual prosecutions are rare).

If the university or college running the course in question is a Tier 4 sponsor licence holder, they must ensure that all students have permission to study in the UK throughout their course. This includes visitors and those with STS status. The licence can be revoked for failing to comply with this requirement.

Short-term students using eGates can be enrolled, but…

So far there has been scant information in arrival halls highlighting that students who need a stamp in order to be able to study under the short-term study route must see a Border Force officer and not use eGates.

Recognising this, and to try and help resolve the issue, the Home Office has now published a short (seven-page) guidance note for education providers.

The guidance states that if a non-visa national student “presents at your institution with a visit stamp from a Border Force officer, or no stamp as they have entered through an e-gate, you can enrol that student and allow them to begin their studies”. This is a good start. Clearly the student’s main purpose of being in the UK is to study so they would otherwise be unable to commence the course.

Unfortunately the good start doesn’t continue.

Students to down laptops after 30 days, leave and return

The guidance continues:

However, you must advise the student that they will need to leave the UK before they have completed 30 days of study and request an STS stamp from a Border Force officer on their return to the UK. You will be required to obtain a copy of the STS stamp they receive on entry on file to allow them to continue their studies.

To put it another way, all students from Australia, Canada, Japan, New Zealand, Singapore, South Korea and the USA who enter the UK via an eGate when intending to study a short-term course of up to six months must leave the UK after 30 days and return via a face-to-face session with a Border Force officer.

The numbers could be huge, and it’s also not exactly cheap to travel out of the UK, turn around and come back again. 

Education providers will have to ensure they have personnel in place to:

  1. check which students have entered via eGates when they shouldn’t have;
  2. let them know that they can only study for 30 days initially before they have to leave and re-enter; and
  3. ensure that when the student has re-entered, they’ve managed to obtain the correct stamp from a Border Force officer. 

I can’t see anything here that’s fluid or improves the experience for either affected students or education providers.

A 16-word solution 

In my view, the easiest way to deal with this issue would be for the Home Office to relax the restrictions on visitors studying completely. This could be done by removing 16 words from Appendix V as follows:

Study

25 Visitors may carry out the following study:
(a) educational exchanges or visits with a state funded school or academy or independent school; or
(b) a maximum of 30 days study on:
(i) recreational courses (not English language training);
(ii) a short-course (which includes English language training) at an accredited institution;
provided that the main purpose of the visit is not to study and the study is not at a state funded school or academy.

Having spent most of the last decade being highly suspicious of anyone wanting to come to the UK to study and any institution seeking to teach them, the government now simply adores international students (or at any rate the £35 billion per year they could represent by 2030).

We also know from the immigration white paper that the government wants to simplify the immigration system for visitors, students and others generally. 

Conclusion

Making it difficult for visitors to enjoy some study during the time they are lawfully in the UK has never made sense to me. I’ve always felt that it’s one of those hostile environment measures that exists solely to be hostile and for no other reason. 

Lots of universities, colleges etc. run a variety of evening classes and other short courses that offer a range of educational and cultural experiences. The restriction on days of study creates a huge headache for them in terms of having to keep tabs on the amount of time a person with visitor status spends at their institution.

For now, I hope the government reconsiders its approach to this particular issue — one of its own making — and implements a swift solution. This must entirely eliminate the risk that an innocent student could commit an immigration breach and also avoid placing yet more monitoring and checking burdens on education providers. 

It is also essential that, as we move towards an increasingly digitalised immigration system, issues such as this are identified and steps taken to avoid problems arising before the new system is rolled out.

Edit Post

Nichola Carter

Nichola heads the immigration team at Carter Thomas (www.carterthomas.co.uk). A lawyer with 20 years' experience, she also sits on The Law Society’s Immigration Committee and supports the renowned EU Rights Clinic in Brussels. Nichola's main work relates to advising universities, schools and businesses on sponsor compliance and individuals seeking to work or start a business in the UK. She regularly provides media comment including for the BBC and FT and is happy to be contacted for comment. Nichola tweets from @carternichola

X
Not yet a member?

Get unlimited access to articles, a thriving forum, free e-books, online training materials with downloadable training certificates, and much more.

Worried about preparing an immigration application yourself?

Try our Full Representation Service, provided by Seraphus Solicitors.

Join Now

Benefits Include

  • Clear, transparent fees
  • Fees fixed for each stage of your application or appeal
  • Personal client web access page and messaging system
  • Online payments, document upload & video calls
  • Expert representation
Shares