Tier 4 Cap & Non Visa National

[HelloKay88]

Hello All,

I'm Canadian and came to UK to study a three year BA in 2000, back then there was no need for Canadian to obtain a visa, I was advised to show the acceptance letter from my college at border control, and they just stamped a 3 year leave to remain stamp on my passport.

My question is, does that count towards the 5 year cap?

Would very much appreciate your advice!

Kay

[sah10406]

My question is, does that count towards the 5 year cap?

Yes.

See paragraph 245ZV(ga) about the 5-year cap, which explains

If the course is at degree level or above, the grant of entry clearance the applicant is seeking must not lead to the applicant having been granted more than 5 years in the UK as a Tier 4 (General) Migrant, or as a Student, to study courses at degree level or above

The paragraph goes on to list the exceptions, but there is no exception for student leave granted on entry, nor for any specific nationalities or groups of nationalities.

https://www.gov.uk/guidance/immigration ... sed-system

[HelloKay88]

Thank you so much sah10406

So even though it wasn't a "visa", it still counts because I was admitted entry as a student?

Another question I have is, I was ill during my 3rd year and needed to return to Canada for a surgery. I was granted a year leave of absence in Jan 2003 so I returned in 2004 Jan to finish the course. On my certificate it says I finished the course in 2004 which makes it look like it's a 4 years course and that I have stayed for 4 years, when in fact I was out of UK between Jan 2003 - Jan 2004. Would home office still count my 1 year out towards the 5 years cap? I noted that there is "compassionate ground", what kind of documents shall I use to prove the 1 year leave of absence? Would a letter from my uni be good?

I got accepted for a 2 years MA, am so very anxious that I couldn't take it?

Would really appreciate your advice again!

Many thanks.

Kay

[sah10406]

So even though it wasn't a "visa", it still counts because I was admitted entry as a student?

Yes.

Another question I have is, I was ill during my 3rd year and needed to return to Canada for a surgery. I was granted a year leave of absence in Jan 2003 so I returned in 2004 Jan to finish the course. On my certificate it says I finished the course in 2004 which makes it look like it's a 4 years course and that I have stayed for 4 years, when in fact I was out of UK between Jan 2003 - Jan 2004. Would home office still count my 1 year out towards the 5 years cap? I noted that there is "compassionate ground", what kind of documents shall I use to prove the 1 year leave of absence? Would a letter from my uni be good?

These are questions for your university. It is they who need to decide whether they can sponsor you for a Tier 4 visa, or whether the 5-year cap prevents it. Normally the whole period of your student leave is counted, whether you were physically in the UK or not. I do think you need to be prepared for bad news, sorry.

[HelloKay88]

Oh dear....

I had two surgeries and can provide evidence and doctor's letter to explain why I needed to take a year out. Will this help?

Initially the stamp on my passport was for 3 years, and then in Jan 2004 I got another 6 months, so theoretically speaking, the amount of time I was in UK for studying my BA was 3 years and 6 months.

I read that there can be exception to the 5 years cap:
"If the normal duration of your undergraduate course was four or five years then when you apply for a Master’s degree, your study limit is extended to a total of six years. This means students enrolled on a four year course with a year abroad or an MEng programme with an intercalated year, for example, must not exceed a maximum of six years study in the UK at degree level when they apply for a Master’s degree. This also applies to students who studied an Undergraduate degree in Scotland where the normal duration is four years."

Third party immigration firm weblink removed by moderator

Can the home office consider my BA as a 4 year course even though it's 3 years?

Is there someone I can talk to from Home Office to confirm? Gosh....

Would really appreciate your advice again!

[sah10406]

I had two surgeries and can provide evidence and doctor's letter to explain why I needed to take a year out. Will this help?

Can the home office consider my BA as a 4 year course even though it's 3 years?

Is there someone I can talk to from Home Office to confirm?

I think you might have an outdated idea of the roles of the Home Office and of your university in all this. I can only urge you again to engage with your Tier 4 sponsor university, not the Home Office.

Student visas have changed beyond recognition since you previously had one in 2000. The Home Office sets the rules but it is the university sponsoring your Tier 4 visa is the key decision maker in the whole process, having been granted a Tier 4 Sponsor License so they can bring students to the UK. They are as invested in a successful application as the student is. Refusals on their sponsorship are a strike against them.

Universities now have trained immigration compliance staff who make the decisions about who can apply for a student visa under their sponsorship, They will normally only issue a CAS to support the application if they are pretty sure the application will be successful. The Home Office processes any resulting visa application, but that is pretty much a rubber-stamp exercise for most applicants, with the Tier 4 sponsor having already evaluated all the evidence and decided whether the student is visa-worthy. There are some aspects that are the Home Office's call, like the financial evidence and the credibility interview, but universities give students detailed guidance on what is required, and they often want to check finances and credibility for themselves, for their own satisfaction about the upcoming application.

With the 5-year cap, while in theory a Tier 4 sponsor can waive the cap for exceptional circumstances if they wish, they are only likely to do so if (a) they know that the visa application would be successful based on rules and guidance, or (b) they are not sure, but they are prepared to risk a refusal on their sponsorship.

The 6-year cap is only for those who have completed a 4-year course which was always meant to be 4 years long.

[HelloKay88]

Hello sah10406

I want to firstly thank you for taking the time to shepherd a fellow Tier 4 applicant. I really appreciate your help.

I'm only beginning to catch up on all the changes since 2000.

I learned on another forum that the Home Office would consider "compassionate circumstances", the below advice was written in 2014, do you think it has changed since then? I'm struggling here because the Registrar of my school is very busy to answer any of my questions so I thought I must get clarity on things before they consider issuing me a CAS...

I just copied and pasted from another forum:

"I took temporary withdrawal for a year, will this be included in my study calculation?"
It is unclear whether the Home Office will include periods of temporary withdrawal (TWD) in their study calculations. The Home Office modernised guidance for caseworkers (v.17.0 17/Jan/2014) states that they must consider the full course period when calculating the duration of study unless there are interruptions to study where‘compelling and compassionate circumstances’ (for example, serious illness or disability)’ may need to be taken into account.

When a Tier 4 student takes temporary withdrawal from their studies the University is obliged to report this to the Home Office in accordance with our sponsor licence duties. This report will usually trigger curtailment action from the Home Office to shorten the visa issued for the study period. The Home Office have not clarified whether periods of curtailed leave will be counted as part of a student’s time spend studying in the UK. Students should always seek to leave the UK during periods of TWD and are advised to keep boarding passes and to ensure that their passports are stamped on exiting the UK/re-entering their home country so that they can present evidence of having voluntarily left the UK should they need to."

[sah10406]

I want to firstly thank you for taking the time to shepherd a fellow Tier 4 applicant. I really appreciate your help.

You are welcome but I am not an applicant, I am an adviser and trainer in Higher Education.

I learned on another forum that the Home Office would consider "compassionate circumstances", the below advice was written in 2014, do you think it has changed since then?

See my specific comments below.

"I took temporary withdrawal for a year, will this be included in my study calculation?"
It is unclear whether the Home Office will include periods of temporary withdrawal (TWD) in their study calculations. The Home Office modernised guidance for caseworkers (v.17.0 17/Jan/2014) states that they must consider the full course period when calculating the duration of study unless there are interruptions to study where‘compelling and compassionate circumstances’ (for example, serious illness or disability)’ may need to be taken into account.

See page 111. of the current version of this guidance at
https://www.gov.uk/government/publicati ... sed-system

"The Home Office have not clarified whether periods of curtailed leave will be counted as part of a student’s time spend studying in the UK".

Who is writing this rubbish? When someone's Tier 4 leave is curtailed, it is cancelled from a specific date. After that date there is no leave to count. The clock stops because the leave has ended. However, your pre-Tier 4 student leave was apparently not curtailed because you were able to use it to return to the UK after your interruption. I don't believe pre-Tier 4 student was ever curtailed, but that is definitely a question for the immigration compliance person at the university.

[HelloKay88]

Hello sah10406

Thank you soooooooo much for all your advice again. You are far much more helpful than the advisor at my university. I think the registrar is inundated at this time...i called and emailed but heard no reply.

I might have a chance then if they can take into account "compelling and compassionate circumstances", back in 2003, the point based system wasn't in place and my university wasn't obliged to informed home office when my study was interrupted. I could provide proof that my leave was official, I submitted my doctor's letter to the dean and my permission to withdraw due to health problems was official in the form of a letter. I left my course around 15 - 20th Dec 2002 and return 02/12/2003 (they gave me 6 months leave at the airport) to resume my study. In order to convince my university/ Home office, would you say the most important document was to prove that I was out of UK for a year? I lost my air ticket for my trip back home in Dec 2002, but I have a landing card and a stamp on my passport that says I came back on 02/12/2003. I can also provide doctor's letter to prove that I had two surgeries, and my dean's letter to say my leave was allowed by the school. I'm just worried that they think I withdrew from my study to go to Hawaii and have a holiday!!

Do you think the documents I have are good enough, is there any other documents that you think I might need to support my case? Would really appreciate your input here...

Worse scenario, they do not take into account my break due to illness between 12/2002 - 02/12/2003, my full study leave for my BA was 30/09/2000 - 03/06/2004 - that's around 47 months, which would leave me 24 months for another two years MA? If we can extended the 5 years cap to 5 years and 11 months? Under what circumstances would they consider extending the cap to 5 years 11 months? Is that up to my University?

Would really appreciate your advice again.

Many thanks...

[sah10406]

Do you think the documents I have are good enough, is there any other documents that you think I might need to support my case? Would really appreciate your input here...

Impossible for me to know what your university is looking for. They may have existing policies about how to evaluate a potential compelling or compassionate scenario. You need to liaise with the immigration compliance person, or sometimes the international student adviser, about whether you have a chance for a CAS. I don't think it would be the Registrar, but it's possible they may make the decision at that university.

Under what circumstances would they consider extending the cap to 5 years 11 months? Is that up to my University?

No. The cap can be extended to 5 years and 11 months for any student in one of the situations laid out in paragraph 119 of the Tier 4 Policy Guidance:

https://www.gov.uk/government/publicati ... -4-student

[HelloKay88]

Hello sah10406

Thanks again for all your guidance.

According to Section 119, it says "unless the application is to study a new course, or complete a current course, within either 6 months of the time limit being reach, and 1) below applies or 11 months of the time limit being reached..."

I'm quite confused by the wording..

What does it mean by within EITHER 6 months of the time limit being reach or 11 months?

My full study period is 44 months for my BA was 44 months, and I'm studying for a new course, am I qualified for the extension to 5 years and 11 months?

Would appreciate your advice again.

[sah10406]

According to Section 119, it says "unless the application is to study a new course, or complete a current course, within either 6 months of the time limit being reach, and 1) below applies or 11 months of the time limit being reached..."

I'm quite confused by the wording..

What does it mean by within EITHER 6 months of the time limit being reach or 11 months?

It is confusing because for some reason you stopped reading in the middle of a sentence! It says

..or 11 months of the time limit being reached, and 2), 3) or 4) below applies.

My full study period is 44 months for my BA was 44 months, and I'm studying for a new course, am I qualified for the extension to 5 years and 11 months?

You need to add together your previous student leave that will be counted, plus your future Tier 4 leave for the new course. If it comes to less than 5 years 11 months, and comes to a maximum of 5 academic years, and the university comes up with the same calculation, they can sponsor you.

[HelloKay88]

Hi sah10406,

Thanks soooo much for your advice again.

The international advisor from my uni seems to be quite uncertain, she said she has contacted their Premium account manager at HO to see what record they have on me as a student. I don't understand how come she needs HO to confirm that when back in 2000, things were solely reliant on the stamps in your passport. Canadians don't need clearance, nor any visa. HO would have two landing cards.

She also said she didn't know how the time I were on sick leave would be calculated. So I'm stuck...I can't believe it's that uncommon for students to have serious illness or emergency situations?

On my passport there are two stamps, one was stamped when I arrived the first time in London on 30/09/2000 and grant me leave until 30/09/2003. I returned home and left UK in 02/2003, returned to UK on 03/12/2003 to resume my study, I got granted a 6 months leave, which expired 03/06/2004.

Let's say HO do not take into account of my sick leave, and calculate the full study period. Do they simply count from 30/09/2000 to 03/06/2004? That would be 44 months. But my first stamp only gave me leave until 30/09/2003. Does that mean I can minus 2 months? (Oct, and Nov, 2003) I return to UK on 03/12/2003.

Do you know how they calculate future Tier 4 leave? My uni has term dates as below:

2 year MA
Autumn
24 September – 14 December 2018 (12 weeks)
Spring
7 January – 5 April 2019 (13 weeks)
Summer
29 April – 28 June 2019 (9 weeks)
Total: 34 weeks

Do I just multiply 34 weeks by 2 >> 68 weeks = 17 months

As it's now already September they don't need to give me a month before term starts, is it compulsory that they add 4 months after your course finishes?

So it's 42 months + 17 months = 59 months. (do I need to add 2 or 4 months towards the end of my study?)

A million thanks to you again sah10406...

[sah10406]

I can't believe it's that uncommon for students to have serious illness or emergency situations?

It isn't, but it is not at all common for someone who had pre-Tier 4 leave to be making a new Tier 4 application. Hence the university's immigration compliance person needs to seek advice from their Premium Account Manager at the Home Office on how to count your leave, and specifically how to quantify your time away from the course but with valid student leave. You now need to wait for their decision.

Do you know how they calculate future Tier 4 leave?
...
As it's now already September they don't need to give me a month before term starts, is it compulsory that they add 4 months after your course finishes?

The length of the course, plus whatever extra periods will be added before and after. The +4 or +2 months is standard, depending on the length of the course.

[HelloKay88]

Thanks sah10406 so much for taking the time to advise...

I think I know where all these confusions come from now, the international advisor assumed that my sick leave was reported back in 2000, so she has been waiting for HO confirmation. But they weren't reported as institutions were not required to report sick leave/disruptions to HO.

Do you know if HO will consider Tier 4 application if the student will join the course late because of CAS/visa complication? I still haven't received my CAS, I'm worried that they might not even consider my application as it's so late in the cycle now....

I checked that there are two express services, the Super Premium (1 day) or Premium services (5 days). Will they give you the visa and biometric on the same day or you would still need to wait for a week?

sah10406, thanks so much for your time and advice again.

[sah10406]

Do you know if HO will consider Tier 4 application if the student will join the course late because of CAS/visa complication?

Yes, if the CAS allows it. Again, a question for the sponsor.

Will they give you the visa and biometric on the same day or you would still need to wait for a week?

Sorry I don't know specifics of applying in specific countries.

[HelloKay88]

Thanks sah10406 for your advice.

I finally got my CAS, the admission officer didn't seem to be worried about my sick leave pre Tier 4, I thought it's down to the sponsor to decide how to count my previous study period? Now that they have issued a CAS, does that mean that my one year sick leave has been taken into consideration on compassionate ground, or Home Office will check it again and they can take a different view?

I have chosen the premium 5 days service and it says that I have to attend an interview, I read on some website that now an interview is compulsory as opposed to being selected, so I gather premium service is not just to submit your document in person it also includes an interview now?

My interview is today, very nervous!