Graduate Visa

ooooooooh, careful now!

This is a bit weird because the para says:

P394 A non-UK national (with exception to those that fall into the categories above) is 
eligible for funding if they have permission from the UK government to live in the UK 
(not for educational purposes), and have been ordinarily resident in the UK for at 
least the previous three years before the start of the apprenticeship

Now, this person's current permission is NOT for educational purposes BUT it's usually been agreed/understood that any years on a study visa DO NOT COUNT towards the three years, even though that's NOT what the paragraph here explicitly says...

A Graduate visa gives you permission to stay in the UK for at least 2 years after successfully completing a course in the UK.

With a Graduate visa you can:

work in most jobs

look for work

be self-employed

So an Apprenticeship would not be out of the question as the residency requirement starts from the start of the previous student visa not from the start of the Graduate visa (I think I am correct but you should check.

Asked the Service Desk and they say:

I understand from your email that you are enquiring into whether the years someone (potential apprentice) has been here on a study visa count towards being here for three years? The answer is no as the potential learner was not a UK national or an ordinary resident in UK in the three years that they were in the country, please see below the referenced funding rule E347. 

(E347 is the start of the eligibility bits in the Employer Rules, no I don't know why they're quoting those instead of the Provider Rules, but they're the same across both anyway)

So they're saying someone on a student visa *isn't* Ordinarily Resident in the UK, so those years don't count...

Thanks to both of you for your help

Hi, I raised a similar query with the service desk and got the following reply:

I understand that you have a query about the funding rules, specifically about Graduate - Leave to Remain visa. I can confirm that as you have mentioned, the potential apprentice would not have been eligible to start an apprenticeship whilst they were on their Tier 4 visa, but now they have a graduate visa, if you are satisfied this is valid and they meet the remaining rules, the time spent in the UK under the Tier 4 visa would count towards the 3 year residency requirement.

If my understanding is correct and a Tier 4 visa is a study visa, does this contradict what Steveh was told by the service desk?

Thanks

Yes, yes it does...

Have you got your CI number from the ticket and I'll chase?

HI Steve, I was afraid that was the case! As if visas weren't already confusing enough. The ticket ref was 609330. Thanks

Steve Hewitt I don't suppose you've heard back have you? I've got the exact same query and no clear guidance on whether the candidate is acceptable. I'd raise a ticket but, given the above, I'm not sure it'll add any clarity!

Darren

Not yet... It has been "escalated to the Technical Support Team to investigate further" apparently.

Hi Steve,

Was a response ever received about this? We have a learner who has been in the UK since 2014, they now have a Graduate visa for 2 years which isn't long enough to do an apprenticeship.  The learner plans to apply for indefinite leave to remain in 2024 when the graduate visa expires.

thanks!

jenny

Frustratingly, it's just been escalated to the Specialist Support Team...

Can't be many more levels of escalation left...

Mind you, Jennifer Donnellan, if the learner's been here since 2014, was that eight years on a Tier 4 Student Visa? Or were they on something else before? If they've got three years of *not* student visa out of the eight, they're fine.

Thanks, Steve.

One more question, if i can be cheeky? The funding rules seem to imply that the 3 years have to have accrued immediately prior to the start of the apprenticeship.  But based on your response you don't seem to think this? If a learner is in the country for 3 years, then is on a student visa/graduate visa (where you cant accrue time, as it were) immediately prior to wanting to start a apprenticeship, you would say there are eligible? 

thanks,

Jenny

Sorry Jenny, I'm getting as bad as the service desk with their response times!

I think I could quite happily argue that a learner in that situation is fundable but, you're right, the para does imply that it's "the last three years", also, it's definitely just the student visa we're trying to get clarification on, the graduate visa definitely counts as it's a work visa, not a study visa.

If they reply saying what they told Darren in July is right, then we've got nothing to worry about... if they EVER reply of course...

Hi Steve,

Thanks for your reply. I raised this with the service desk and they confirmed the following:

1. Applicants on Graduate Visas are ever eligible? If the graduate visa covers the length of the apprenticeship then they would be eligible (i.e. 12 month apprenticeship)
2. Can learners accrue 3 years at any point before the apprenticeship or is it only immediately prior?  P371 states that:  A non-UK national is eligible for funding if they have been ordinarily resident in the UK and Islands for at least the previous 3 years on the first day of their apprenticeship and have permission from the UK government to live in the UK (not for educational purposes) or have obtained pre-settled or settled status under EUSS. Therefore, no, the 3 years must be the immediate 3 years before their apprenticeships starts.

thanks,

Jenny

Hi Steve Hewitt I don't suppose the ESFA ever got back to you on this did they?!

Every ten days I get an email telling me it will be another ten days... Even tried asking ESFA friends to chase with no further luck...

OK, this back from them just now, not good news...:

We apologise for the delay in providing our response to this query. The delay has been due to your query being investigated by our Funding Rules team and policy professionals to ensure we are providing accurate advice. 
 
The teams have been in touch today to advise that if a learner is in the UK wholly or mainly for the purpose of receiving full-time education then that time in the UK does not count towards the ordinary residence period. This may include time spent on a student visa. However, there may also be other reasons for a person's residence in the UK which affects their primary purpose. It is for the provider to establish, following consideration of all the circumstances, whether the learner would still have been resident in the UK, even if they had not been in full-time education.

However, over on this thread:

https://esfahelp.education.gov.uk/hc/en-gb/community/posts/6790780047122-Visa-Eligibility?page=1#community_comment_9628039978002

We've been looking in detail at the definition of Ordinarily Resident and I think ESFA are wrong (I Am Not A Lawyer)...

I think they got a bit annoyed with me quoting Lord Scarman at them and here appears to be the final word on the subject...

You query the lawfulness of the condition in our eligibility criteria which excludes residency for educational purposes from the qualifying period of three years ordinary residence. You cite the case of Shah v Barnet LBC [1983] 2 A.C. 309 to support your argument.
 
Shah is not a relevant authority. The context of that case is different from the facts and circumstances of the present matter. The dispute in Shah centred on the meaning of the words, "ordinary residence" for the purposes of the Education Acts. What the House of Lords determined was that the words should bear their natural and ordinary meaning in that particular legal context of those statutory provisions.
 
The Apprenticeship funding rules are not within the scope of the Education Acts, however. The legal basis of the funding rules instead are the statutory powers of the Secretary of State to provide funding for apprenticeships and further to make that funding subject to conditions ( see sections 100 and 101 of the Apprenticeships, Skills, Children and Learning Act 2009). The eligibility criteria are such conditions and being such they are a legitimate exercise of those powers. The decision in Shah, confined to the particular facts of that case, has no bearing on the lawfulness of a decision to exercise those statutory powers in the way that has been done in the funding rules.

So there we are, time on a Tier 4 Visa doesn't count as Ordinarily Resident for the purposes of the Apprenticeship funding rules.

Thanks Steve - at least we have a definite decision from them on this after such a lengthy wait.

I'm sure we could get into the finer details of this position but that's perhaps a conversation for another day...!

Well I'm not taking it to the House of Lords/Supreme Court ;)

Cracks me up how you get different responses depending who picks up the email. We have had this through from the SD, happy to forward to anyone who requires it. 

Thank you for your query regarding an individual's eligibility for an apprenticeship. 
 
If the individual has been granted permission to live in the UK under a Graduate visa and has lived / been ordinarily resident in the UK under that visa for 3 years prior to the start of their apprenticeship; and at the start of their apprenticeship has permission from the UK Government to live in the UK (including on a Graduate visa) and this is for the duration of the apprenticeship, then this would be acceptable.
 
The funding rules require that an apprentice has a valid visa that allows them to complete an apprenticeship for them to be funded

Ah, actually, this *isn't* quite the opposite of what I've ben told.

It's feasible (although unlikely) for someone on a Grad Visa *not* to have been on a Tier 4 study visa previously and thus have 3 years of ordinary residence not related to a Tier 4. It's only where someone's *only* been on a Tier 4 that those years don't count. What they're assuming in the answer they've given you is that you magically know that Tier 4 years aren't "ordinarily resident" FOR THE PURPOSES OF DETERMINING WHETHER THE LEARNER IS ELIGBLE FOR APPRENTICESHIP FUNDING (because they probably do count for some other things).

Although, having said that, it's *not* feasible for someone to have been here on a Grad visa alone for three years and then start an App because Grad visas are explicitly for three years max (and most of them are two years) and not extendable.

Graduate visa: Overview - GOV.UK (www.gov.uk)