Exceeding 5-year visa cap

[CogitoErgoSum]

I have a rather urgent concern about the 5-year cap for Tier 4 visas and was hoping someone might be able to provide me with some guidance or advice based on my situation.

Essentially, I began my studies in the UK at the undergrad level in September of 2012. I studied for one year, began my second year, and in the first few months of my second year decided to switch courses. That process was a muddled one, and I ended up having my visa curtailed for the rest of the academic year. Eventually, I started on my new course (which is a three year course), however, due to serious illness I did not sit a final exam and was required to resit before the start of the 2nd academic year. I did, but did not pass the exam. Consequently, I had to take the year out and my visa has still not been curtailed.

I understand the above details are rather convoluted, but essentially I will need to apply for a new Tier 4 visa to resume my course (I have two years remaining), however, I'm very worried that I will not be granted the visa because that will put my immigration history at 5 years and 9 months, give or take.

Is it likely that my application for a new Tier 4 visa will be denied because of the 5-year cap? My university (Russell Group) will issue me the CAS number, but ultimately it's up to the UKBA, right? If it is likely to be denied, is there anything I can do? From what I understand, they do give dispensation for exceptional circumstances, but how do you qualify for being an "exceptional circumstance", and how do you go about showing that you should be considered as such?

I'm guessing this is not a common issue on these boards, or in general actually, but I would sincerely appreciate any and all advice on this as it's entirely consuming me and I'm unable to focus on anything but this situation.

[CogitoErgoSum]

I requested a history of my leave to remain in the UK, and it is as follows:

"Tier 4 (General) visa: 15/09/12 – 10/06/16. Please note that this leave was curtailed on 7 April 2014
Tier 4 (General) visa: 06/10/14 – 09/10/17
Tier 4 (General) visa: 07/09/15– 08/10/18 – please note that this leave has not yet been curtailed."

*Note: the second visa was never used as by the time it was issued (after much delay) my course had already began and I was not allowed to enrol.

Assuming that a two year Tier 4 visa granted from Sept. 2017 would be issued for 25 months (Sept. 2017 - Sept. 2019), and considering that my previous leave to remain totals 38 months (hopefully my current visa will be curtailed by the first half of April), this would put me at 63 months (5 years and 3 months).

Does anyone know if there is any leniency to the 5 year cap? For example, in my case, exceeding the cap by a few years in order to finish my course.

[CogitoErgoSum]

Apologies for my endless commenting on my own post, but I have been searching through previous forum queries and have found this information:

Paragraph 5.53 Sponsor Guidance: If the length of the course applied for in the current application would lead to the applicant having spent more than the maximum period permitted in the category, UKVI will refuse the application unless the application is to study a new course or complete a current course within 11 months of the time limit being reached, and ...

...the student is applying to study a course being taught by an HEI which is also sponsoring the student, and the strict application of the five-year time limit would prevent them from completing a fifth academic year at degree level or above.

From my understanding, Paragraph 5.53 would apply to my situation, correct? I would still finish my course within 5 years and 11 months, I am being sponsored by an HEI, and the strict application of the 5-year cap would prevent me from completing a 5th academic year at degree level (this last part is confusing to me).

Does this also mean that it is my sponsoring university's responsibility to consider the 5-year cap, and not UKVI? In which case, if my university does issue me a CAS, I do not have to worry about my Tier 4 visa application being refused on the grounds of exceeding the 5 year cap?

[CogitoErgoSum]

After further research and reflection, I have come to the conclusion that that paragraph does not, in fact, apply to me as I would not be using this exemption to complete a '5th' academic year. This, naturally, heightens my concern over this situation even more. I'm starting to think that I will not be granted a visa to finish my degree

Please, does anyone have any insight whatsoever?

[sah10406]

My university (Russell Group) will issue me the CAS number, but ultimately it's up to the UKBA, right?

Yes, but a sponsor does not just issue CASs willy-nilly with no regard to whether the application will be successful. They are required to check before issuing the CAS that the new application will not exceed any cap. I am therefore assuming they know all your study and immigration history, they have checked the rules and guidance about the cap, and they have decided to sponsor you accordingly.

Separately, your CAS will not confirm academic progression, so your application will need to be made in your home country, not in the UK. Only those completing a PhD can apply in the UK.

I advise you speak about all the above with the International Student Adviser at your university. They are best placed to advise about your new application.

[CogitoErgoSum]

My university (Russell Group) will issue me the CAS number, but ultimately it's up to the UKBA, right?

Yes, but a sponsor does not just issue CASs willy-nilly with no regard to whether the application will be successful. They are required to check before issuing the CAS that the new application will not exceed any cap. I am therefore assuming they know all your study and immigration history, they have checked the rules and guidance about the cap, and they have decided to sponsor you accordingly.

Separately, your CAS will not confirm academic progression, so your application will need to be made in your home country, not in the UK. Only those completing a PhD can apply in the UK.

I advise you speak about all the above with the International Student Adviser at your university. They are best placed to advise about your new application.

Thank you very much for your response. I was under the impression that I would not have difficulty getting the CAS number, but now that I look back at all communications with my university, that was never expressly guaranteed nor was there specific mention of the CAS at all (just that I would resume my studies in September and the HO would be notified).

Clearly, this is not a guarantee that a CAS will be issued. Which brings me to a question of practicality, and perhaps you will dismiss this question, but if you were in my position, would you bring all the above to the university's attention now, or wait for a CAS to be issued/not be issued before bringing it up? What I'm getting at is, I do not want to create a problem for myself by bringing this to their attention if it is something they will potentially overlook. If I make a big deal now out of a matter of a few months, and my university reviews the rules, they might indeed find that they cannot sponsor me. But if I leave the issue for now and wait until the summer when CAS numbers are issued, in the event of not being given one I could at that point argue my case.

Any anecdotes of people in similar situations? Finishing my degree is incredibly important to me, and I've worked very hard to have gotten this far. I would hate to think that a few setbacks will prevent me from achieving my goals.

[CogitoErgoSum]

*double post

[sah10406]

if you were in my position, would you bring all the above to the university's attention now, or wait for a CAS to be issued/not be issued before bringing it up?

The university will be asking your immigration history before issuing the CAS. If some odd reason they don't, you can assume the Home Office will know your history.

[CogitoErgoSum]

if you were in my position, would you bring all the above to the university's attention now, or wait for a CAS to be issued/not be issued before bringing it up?

The university will be asking your immigration history before issuing the CAS. If some odd reason they don't, you can assume the Home Office will know your history.

Okay, thank you for your advice. I think I will contact my university immigration support, and hopefully someone else who has been in a similar situation can shed some light on this.