STY02 - Tier 4 - interviews and genuine student rule (GSR)
This is internal guidance for use by entry clearance staff on the handling of applications made outside the United Kingdom (UK) for students. It is a live document under constant review and is for information only.
The relevant immigration rules and the guidance for considering GSR following a Tier 4 interview are set out below.
Relevant Immigration Rules
The applicant must, if required to do so on examination or interview, be able to demonstrate without the assistance of an interpreter English language proficiency of a standard to be expected from an individual who has reached the standard specified in a confirmation of acceptance for studies (CAS) assigned in accordance with Appendix A paragraph 118(b) (for the avoidance of doubt, the applicant will not be subject to a test at the standard set out in Appendix A, paragraph 118(b)).
To qualify for entry clearance as a student the Entry Clearance Officer (ECO) must be satisfied that the applicant is a genuine student. 245ZV(k) will not be applied to a national or the rightful holder of a qualifying passport issued by one of the relevant competent authorities of those countries currently exempted from the Genuine Student Rule under Appendix H of the Immigration Rules.
Where false representations have been made or false documents or information have been submitted (whether or not material to the application, and whether or not to the applicant's knowledge), or material facts have not been disclosed, in relation to the application or in order to obtain documents from the Secretary of State or a third party required in support of the application.
Failure, without providing a reasonable explanation, to comply with a request made on behalf of the ECO to attend for interview will result in a refusal.
The ECO should also refer to the full general grounds for refusal at paragraph 320.
1. Rule 245ZV(k) is not applicable where the applicant is exempt under Appendix H of the Immigration Rules (see Annex B).
2. An application should not be refused under paragraph 245ZV(k) unless the applicant has had the chance to respond to questions at interview (a credibility or genuineness interview) unless one of the following circumstances apply:
(i) The applicant has previously been refused because an Entry Clearance Officer(ECO) has not been satisfied that he is a genuine student, and there have been no material changes in his circumstances or new evidence since that refusal. An ECO should exercise caution when considering whether there has been a material change in his circumstances and where there is any doubt should conduct an interview;
(ii) Following a significant number of recent very similar or identical applications in that post, ECOs have satisfied themselves by interviewing a sample of these applicants that the applications are not genuine.
3. ECOs are reminded that where an applicant:
Cannot speak English to the expected standard without the aid of an interpreter, - the application can be refused under paragraph 245ZV(ca); and/or
Has used false representations - the applicant is to be refused under paragraph 320 (7A).
4. In assessing whether the applicant is a genuine student, ECOs must consider the application in the round, taking into account all the following factors and any other relevant matter, including the education provider's decision to issue a CAS, and decide whether they consider, based on their expertise in assessing entry clearance applications and the evidence available to them, whether the applicant meets the requirements of paragraph 245ZV(k). ECOs should consider the following considerations and examples. They are not a checklist and must not be used as such. They are a guide to assessing whether an applicant satisfies paragraph 245ZV(k). These examples will not be appropriate to all cases and ECOs may consider other relevant matters that arise in the particular circumstances of each case.
a) The immigration history of the applicant and any dependant, in the UK and other countries, for example:
- Previous visa applications for the UK and other countries, including reasons for any visa refusals;
- The amount of time the applicant has spent in the UK or other countries on previous visas, and for what purpose; and
- Whether the applicant has complied with the terms of previous visas for the UK and other countries.
b) The applicant's education history, study and post study plans, for example:
- How much time has elapsed since the applicant last studied, and whether the applicant has sound reasons for returning to, or commencing formal study in this area, particularly after any significant gap;
- The applicant's knowledge of, and level of research undertaken into, the proposed course of study and sponsoring institution, and living arrangements in the UK;
- The applicant's personal circumstances, where these would make it difficult to complete a full time course of study;
- The relevance of the course to post-study plans; and
- How the circumstances of any dependant may affect the ability or motivation of the applicant to study.
The ECO's opinion on whether the applicant has the academic ability to study the proposed course is not a relevant consideration and should not form part of any conclusion reached. The academic ability of the applicant is a judgment for the sponsor to make with the benefit of its educational expertise. Similarly the fact that the course does not represent academic progression is not a decisive factor in this consideration.
The relevance of the course to post-study plans, or vagueness about the nature of post-study plans, should not be used as a sole reason to refuse an applicant, rather it will be one of a range of factors to be considered in the round in assessing whether the student is genuine. In this context, whether the course will add to the applicant's employability or whether the course could be undertaken more cheaply in the applicant's home country should not be considered. For those considered to be genuine students, intention to leave the UK at the end of the course is not relevant as there are many bases on which an individually could lawfully remain in the UK.
c) The financial circumstances of the applicant and any dependant, for example:
- The economic circumstances of the applicant and any dependant in their home country; and
- Whether the applicant has a credible income source to meet course fees and maintenance for him / herself and any dependants for the full period of study.
The ECO should take account of the fact that the applicant has satisfied the maintenance requirements and that applicants will be prepared to make considerable investment in gaining a qualification from the UK.
d) The course provider and agents, for example:
- If the applicant is applying to attend an institution that is under investigation or has been identified as an institution of concern in relation to immigration compliance; or where the application is being managed by an agent about which there are concerns, that may be an indication the applicant is not a genuine student.
5. An ECO must be satisfied on the balance of probabilities that an applicant is not a genuine student when refusing an application on the basis of paragraph 245ZV(k).
6. Administrative review
Where an application has been refused under paragraph 245ZV(k), the applicant can request that the decision is reviewed by an entry clearance manager. The applicant has 28 days from the date of receipt of the refusal notice to submit a request for such an adminsitrative review. The request should be made in writing and should include full details of the reasons why the applicant believes they meet paragraph 245ZV(k) and why the visa should have been issued. The entry clearance manager will review the decision to ensure that the decision has been made in accordance with the Immigration Rules.