Schoolchildren (Dependent Territories) (Hansard, 7 April 1982)

§ Dr. Boyson

The text of the relevant annex is as follows:

ANNEX THE ADMISSION TO MAINTAINED SCHOOLS OF CHILDREN FROM OVERSEAS AND THE ADMISSION OF TEACHERS FROM OVERSEAS

1. This guidance replaces that given in Administrative Memorandum 4/73.

Admission of Children from Overseas to Maintained Schools Statutory Duties

2. Section 8 of the Education Act 1944 places a duty on every local education authority to secure the availability for their area of sufficient schools for providing primary and secondary education for all pupils. Section 6 of the Education Act 1980 places local education authorities and school governors under a duty to admit children to the school of their parents' choice except in specified circumstances (see paragraph 8 of the Circular). Section 36 of the 1944 Act places parents under a duty to cause their child to be educated by regular attendance at school or otherwise and section 37 of that Act places local education authorities under a duty to ensure that parents carry out their section 36 duty, by serving a school attendance order "if in the opinion of the authority it is expedient that (the child) should attend school". None of these duties is qualified so as to limit application to persons who are exempt from immigration control or who have been resident in the country for a particular length of time, or who have a particular status under the Immigration Rules.

3. Other statutory provisions which local education authorities (and governors where they are responsible for admissions) should bear in mind when considering applications for the admission of children from overseas are:

i. Article 12 of EEC Regulation 1612/68 (OJ Number L257/2, 19.10.68, p.475), which has direct effect in domestic law, and which provides that "the children of a national of a Member State who is or has been employed in the territory of another Member State shall be admitted to that State's general educational, apprenticeship and vocational training courses under the same conditions as the nationals of that State, if such children are residing in its territory."
ii. Sections 17–19 of the Race Relations Act 1976, which provide in particular that direct or indirect discrimination on racial grounds against a person either in the terms on which he is offered admission to an educational establishment or by refusing or deliberately omitting to accept an application for his admission to an educational establishment as a pupil is unlawful.

Admission of Children as Students^*

4. Under the Immigration Rules a passenger may be admitted to this country as a student if he produces evidence to satisfy each of the following conditions:

i. that he has been accepted for a course of study at "a university, a college of education or further education" (whether or not maintained by local education authorities) "an independent school or any bona fide private educational institution"; and
ii. that the course will occupy the whole or a substantial part of his time; and
iii. that he has the means of meeting the cost of the course and of his own maintenance and that of any dependants during the course, and that he will leave when his course is completed.

5. As will be seen, local authority maintained schools are not among those listed in the Immigration Rules as qualifying a passenger for admission to this country as a student and it follows that a child who does not meet the requirements for entry in any other capacity will not be admitted as a student for studies at a maintained school. It will clearly be desirable to avoid a situation in which a passenger arrives in the United Kingdom expecting to enter on this basis and offers of places should not be made to children overseas. Where a child was given leave to enter as a student to attend an independent or private educational institution, the Home Office will not normally grant an extension of stay on transfer to a maintained school.

Admission of Children Accompanied by their Parents

a. Visitors

6. The circumstances in which children are admitted to this country with their parents as visitors (and as such are here for a limited stay) will obviously vary, as the parents may be here for a few days holiday or several months stay. Each application for admission will need to be considered on its merits in the light of the practicability of providing a place and the expediency of doing so (in terms of the educational welfare of the child). The likely length of stay of the child in this country will clearly need to be taken into account: under the Immigration Rules the maximum length of stay allowed to a visitor is one year.

7. The decision whether or not to admit a child to a maintained school is a matter for authorities (and governors where they are responsible for admissions) in the light of their statutory duties and subject to any decision by an appeal committee constituted under section 7 of the 1980 Act. However, should a complaint be made by parents to the Secretary of State that a child has been refused admission to a maintained school merely on the grounds that he was likely to be in the area for a short time (however that period may be defined), the Secretary of State would be bound to investigate the case on its merits and, if he was satisfied that the authority's or governors' action amounted to a failure to discharge a duty laid upon them, could direct that the child be admitted to a maintained school.

b. European Community (EC) Nationals

8. EC nationals are usually admitted to this country, without qualifications, for six months by means of a written notice (form IS120). They may then apply for a residence permit to remain in this country. When considering applications for the admission to a maintained school of a child accompanying EC nationals, therefore, LEAs will need to bear in mind that the length of stay in this country may be greater than the period shown on their own or their parents' notice. Where parents are employed in this country, the provisions of Article 12 of EEC Regulation 1612/68 will apply (see paragraph 3 above).

9. An EC child who seeks to come to this country in his own right to receive education has the same status as the children of other nationals (see paragraph 4 above), but is free to remain for employment if he wishes.

c. Others

10. Parents admitted to this country otherwise than as visitors (eg as students or to take up employment) can normally be expected to stay for longer than those admitted as visitors. Their duration of stay is therefore more likely to be such as to make the provision of education practicable and they may expect their 353W child to be offered a place if they wish him to attend a maintained school. A parent has no entitlement to remain in the United Kingdom simply because his child is studying here and must qualify to remain in his own right under the Immigration Rules.

Approved Exchange Schemes

11. While, in general, overseas students are not admitted to this country to attend maintained schools, no objection is normally raised to students being admitted as visitors, within the meaning of the Immigration Rules, to attend a maintained school where this is under the auspices of a student exchange scheme. Such schemes should be agreed in advance by the local education authority. A student participating in an exchange scheme would normally be expected not to stay in this country for more than one year.

TEACHERS

12. Teachers from overseas, other than those who are nationals of EC countries, who wish to work in the United Kingdom need to hold a work permit issued by the Department of Employment relating to a specific post with a specific employer, before they can enter the country. However, members of religious orders engaged in teaching at establishments maintained by their order do not require work permits (although they must arrive in the United Kingdom in possession of an entry clearance issued for the purpose, and if they are to be otherwise engaged in teaching a work permit will be required). Additionally, work permits are not required for teachers and language assistants coming to schools in the United Kingdom under exchange schemes approved by the Central Bureau for Educational Visits and Exchanges or the League for the Exchange of Commonwealth Teachers, or for young Commonwealth citizens aged 17 to 27 who are seeking temporary posts which are incidental to a holiday in this country and who do not intend to stay more than two years. Generally 354W speaking, persons admitted for temporary purposes (for example, visitors and students) will not be permitted to remain in employment.

^* See paragraphs 8 and 9 for admission of European Community (EC) nationals.