International Education - Legal Reality - Recruitment - Immigration – Study and Work Periods
Presented By 2050 Knowledge Corporation – Speaker – John Boon, J.D
Available – See Training Products Catalog
International education continues to grow – in terms of student numbers and its importance to economic development and the viability and goals of public and private institutions. It has unique elements, but is an integral part of and not separate from all education systems.
Education service exports are one of the main service exports in many countries. International students are a main group countries draw on when they grant work permits, permanent residency or citizenship.
The increased economic development focus and institution reliance on foreign student revenue can and often does distort economic, immigration and education policy – and the mandates and practices of institutions, recruiters, immigration service providers and other stakeholders.
Module 1 - Contract Realities - Domestic and International Education - Not Distinct
- Contract management strives for strong relationships – not burdens and lawsuits.
- Contract relationships – institution and student – institution and recruiter – student and immigration consultant or other service providers – multiple homestay contracts.
- Study and work permit applicants have public law relationships with government.
- Relationships have distinct risks – require distinct contract and regulatory mitigation.
- Institution and international student service contracts are subject to study permits.
- Distinct education service contract terms for foreign students are lawful.
- Contract parties control their bargain – contracts are with each student – not groups of students.
- International education is not separate from domestic education.
- It just adds more parties, contract relationships and legal or policy issues to the mix.
Module 2 - Education Service Contract - Service Quality Law - Institution Designations (Immigration)
- Education service quality assurance regulations try to ensure an institution has service input factors in place sufficient to provide the service the student contracts for.
- Applicants or grads of quality assured institutions – not always suited to study or work permits.
- Regulators enforce laws – not contracts – contract parties make and enforce their contracts.
- Regulation of institutions protects all students – distinct regulations can exist.
- As in all service sectors, education service quality – in contract and regulatory forums – focuses on services as the object of quality – and student consumer contract expectations.
- Immigration risks – applicant numbers – potential fraud (not intent to study) – scarce permits.
- Accreditation or designation terms mean nothing outside specific statutes.
Module 3 - Contracts - Education Services – Recruitment - Immigration Service - Third Parties
- Recruiter and institution contracts – distinct from the institution and student contract – should reference each other and include complementary provisions – regulation of relationship is rare.
- Recruitment induces student entry into the institution and student service contract.
- Institutions must strictly control marketing, recruitment and admissions.
- Services or outcomes promised and not promised in institution and student service contracts – must be clear in multiple contracts.
- Institutions must be cautious about – recruiters or immigration consultants making misrepresentations to prospective students about contract or immigration permit matters – agency law – sub-agency – reselling or distribution – sub-contracts – exclusivity contracts.
- No public or private party can promise permits – decision discretion exists and is limited.
- It is often best that recruiters are not the legal agent of the institution – for liability reasons.
- Education service contract risks are distinct from immigration risks.
- Immigration consulting and recruitment – distinct functions – must not be mixed – potential conflicts of interest – not parties to institution and student service contracts.
- Immigration consultants – usually regulated – statutory license only to assist permit applicants – must adhere to a statute’s provisions and purposes.
- Institutions – and their admissions or other officers – are not equipped to assess or mitigate risks foreign students may create under immigration or security statutes – or economic development goals – not part of the admissions process – no statutory duty.
- Students may contract with immigration or other advisors that also act as recruiters for institutions – conflicts can exist.
- If students and institutions enter third party contracts, three or more distinct relationships exist – multiple contracts and complementary provisions required – generally not joint actions or legal partnerships.
Module 4 - Canada - Post Grad Work Permits - Private Exclusions - Arguments Against - Solutions
- Exclusion of private non-degree program grads from post grad work permits – by policy treated as binding law – some of these grads lawfully received and receive these permits.
- Multiple legal opinions – no statutory foundation for a sector wide prohibition and inherent risk (non-evidence – no PGWP risk based) approach focused on private non-degree grads (or any group).
- Federal immigration statute does not provide for, authorize, contemplate or create a mechanism to impose any sector wide exclusion.
- Exclusion is based on never true assumptions of inherent risk and risk free status for excluded and included institutions – this results in absurdities not contemplated by lawmakers.
- PGWP inclusions – based on study permit designations that depend on quality assurance law compliance – divergent PGWP and quality risks with distinct causes – can’t be addressed with common restrictions.
- Excluded institutions meet quality assurance and ISP criteria when they qualify to enroll international students – no clear criteria focused on PGWP risk are applied upon graduation.
- Federal government says because Ministers can create categories (PGWP) they can set criteria for categories – argument is open to challenge – in any event, Ministers must exercise discretion in accord with the statute – they arbitrarily fetter their discretion by being bound to rigid policy.
- Arguments above not yet made in Federal Court – leave denied under a statutory provision that was designed to limit judicial reviews by students – not Canadian firms arguing an action is unlawful.
- Removal of current exclusions does not create open borders for now excluded grads.
- Solutions – greater contract or regulatory control of recruiters and immigration consultants; proper exercise of existing statutory discretion tied to immigration goals and PGWP risk based criteria – informed by research – avoidance of exemptions; decoupling of study permit and PGWP programs (risks vary); applying the same factors used for other work permit programs to PGWP programs.
- Non-solutions – more private degree programs – more public-private articulation (credit transfer) contracts – more public-private institution service contracts – short term utility for a few – don’t solve the problems.