International students under criminal investigation – what criminal, regulatory and immigration issues do I need to consider?

Investigations undertaken by universities are not criminal proceedings, even if they are looking into conduct that may be capable of amounting to a criminal offence. A disciplinary process is an internal, civil matter which deals with a potential breach of the University’s rules/code of conduct. Conversely, a criminal process is an external procedure outside of the University’s control, and will consider whether the student complained of has committed a criminal offence.

For international students, there are various legal implications they will need to be aware of if they are arrested whilst studying in the UK. In this blog, members of our Criminal, Regulatory and Immigration teams have set out what would likely happen in these circumstances, and what a student will need to consider if they find themselves in this position.  

Case study: AB is an international student attending a UK University. The police contact AB’s University and make them aware that an allegation has been made against AB by a fellow student for a sexual offence. The police wish to interview AB under caution, and liaise with the University to arrest AB whilst they are on campus.

A police investigation

On AB’s arrest, the police are able to conduct further inquiries, including a search of AB’s room and/or property.  AB will then be taken to a police station where samples will be taken.  AB is entitled to receive advice from a solicitor.  The solicitor may be instructed directly by AB (or a third-party on AB’s behalf), or by way of the duty solicitor scheme.   Either way, AB’s solicitor is entirely independent from the police and is there to act in AB’s best interests. 

The police will look to interview AB, but before doing so they will provide AB’s solicitor with a brief summary of the allegation.  This is called ‘pre-interview disclosure’.  AB’s solicitor will take AB’s account and provide advice on the best way to proceed during the interview.

AB will then either be released on police bail, or released under investigation.  If AB is released on bail, then the police may include bail conditions (e.g. that AB cannot contact or come within close proximity of the complainant).  If the complainant is a student at the same establishment as AB, the bail conditions can be difficult to manage and must be carefully considered.

Police investigations can take a long time, for example, as of December 2021, the average length of a Metropolitan Police investigation into an allegation of rape was 353 days.

As part of the police investigation, they may look to review AB’s electronic devices.  This can cause real difficulties if the electronic devices include coursework or revision notes. 

The police investigation should follow reasonable lines of enquiry, both those that support the complainant’s allegation and those that point away from the complainant’s allegation.  This may result in the police looking to obtain evidence from the University including CCTV footage or any record of an account provided by the complainant or the accused.  The police may also need to speak with potential witnesses, including fellow students.

More detail can be found here

University investigation

If the police are already involved, universities will usually wait for the outcome of the criminal investigation before conducting an internal investigation, but this is not always the case. It is preferable and fairer that any internal process, relating to the same facts, should be paused until the criminal matter has concluded to ensure there is no contamination of evidence, particularly in relation to witnesses being interviewed.

The University may feel, however, that it is necessary to take precautionary interim action, such as imposing conditions on attendance or suspension, whilst any investigation is ongoing.  

Precautionary action

Swiftly following a complaint, universities must consider the welfare of the students (and/or staff) involved in the allegation and decide if any precautionary measures need to be taken to safeguard the parties or to enable a full investigation to be carried out. Some complaints may mandate that swift action is taken, such as an interim suspension whilst an investigation is conducted.  Universities must ensure that they treat both students (the complainant and the accused) fairly and equally.

The type of measures that could be considered in order to safeguard the parties or to enable a full investigation to be carried out might involve imposing conditions (i.e. remote access to classes or avoiding certain areas on campus) on the accused student, or temporarily suspending them from the University, pending the outcome of the investigation. Any precautionary action taken must be assessed on a case by case basis and must be reasonable and proportionate. Suspension may have serious consequences on a student’s life and studies and as such, universities should see this as a measure of last resort - the University should be satisfied that there is no alternative or less impactful measure that could be put in place before suspending a student.

Any precautionary measure should be for a specified period of time and should be regularly reviewed by the University as the investigation progresses.

 

Investigation

There is no prescribed scheme that universities must implement and there is no set of standard procedures that they must follow when it comes to investigating complaints of misconduct. Universities therefore each have their own different processes and policies in place. However, the general stages of a disciplinary investigation will largely follow the same structure. Below is an overview of these stages.

The first step a University will need to take is to appoint a member of staff who is independent, and who will not be involved in any decision-making capacity, to investigate the allegation (i.e. fact-finding). The Investigator should have had no prior involvement in the complaint and should not be connected to any of the parties involved. To ensure a fair process, the individual appointed should have been properly trained to investigate, as well as being properly resourced and supported.

When investigating a complaint, the Investigator must follow the relevant University policies and/or procedures. The Investigator must identify the allegations and inform the accused in writing of these, and set out any evidence held in support. In doing so, the Investigator should also identify how the allegations constitute a breach of the University’s policies. At this stage the allegations may not be finalised and evidence might be limited; however, this is the foundation of the investigation and the accused has a right to know the allegation(s) against them at an early stage, and be given the opportunity to respond.

From the outset, the Investigator should be thinking about the available evidence and taking steps to promptly gather all relevant evidence. Gathering evidence is as crucial to investigating misconduct as it is to a police investigation into a criminal offence. It might be that urgent steps are required to preserve evidence, for example documents, emails, text messages and CCTV – although if the Police are involved, this may have already been seized.

The Investigator will then interview those involved, which would usually start with taking a first-hand account from the complainant, and then any corroborative or eye-witness evidence should be taken, as well as other witnesses who might have information about the alleged misconduct. Next, the Investigator will speak to the accused student. Interviews with the witnesses should take place as soon as possible after the criminal investigation has concluded as a recent, contemporaneous account is crucial. Equally, the University may seek disclosure from the Police of any relevant material. The information gathered from the witnesses should be captured in written and signed statements. 

Universities must treat reporting students and the accused student fairly, and students (both the complainant and the accused) should be made aware of the support services available both internally and externally. When the allegation is one of sexual misconduct, information and guidance should be given to assist students accessing specialist external services.

A more detailed analysis of the process which will be followed when a University receives a complaint of student misconduct is set out in our previous Student and Universities blog series.

 

Disclosure

The investigation report should contain all the information the Investigator has obtained, including views from the complainant, accused student and witnesses. There might also be evidence however, which the Investigator has collected during an investigation which they decide does not form part of their investigation report. If that occurs, the Investigator must consider whether any of that material falls into the category of ‘unused’. Unused material is that which either harms the case against the accused, or helps the accused to show their position in respect of the allegations.

If the material is ‘unused’, it must be shared with the accused student, so that they can decide whether or not to use that information in their defence of the misconduct allegations they are facing.

 

Immigration status

As the holder of a UK visa, students must be aware that any suspension or withdrawal from their course could have serious implications on their immigration status.  We have set out below some important issues to consider.

Suspension of studies

As mentioned above, it may be open to the University to suspend or exclude a student from their course, pending the outcome of a criminal investigation.  In the event this occurs, the University will have a duty to report the student’s suspension to the Home Office, on the basis that their studies have been “deferred” and that the student is “no longer actively studying”.  In such circumstances, it remains open to the University to continue sponsoring a student during the period of suspension, provided that the suspension is for a maximum of 60 days (or longer, in exceptional circumstances), and that the suspension will not impact the student’s ability to complete their course during the validity of their visa.  Otherwise, if the University has reason to believe that a student will not resume studies within 60 days, and if this will impact the ability of the student to complete their studies before their visa expires, the University will be required to withdraw sponsorship.

In our experience, universities can take an over-zealous approach to their compliance and reporting obligations, and we have successfully assisted clients with challenging universities’ decisions to withdraw sponsorship, in circumstances where this is not necessarily warranted.

 

Withdrawal of sponsorship

Once the criminal proceedings are complete, and in the event that the student is found guilty, it may be open to the University to remove a student from their course and withdraw their sponsorship of the student’s visa.  

In such circumstances, the University would be obliged to notify the Home Office that they have withdrawn their sponsorship. If the individual is the holder of a UK biometric residence permit, the student themselves will also usually have an obligation to notify the Home Office that their sponsorship has been withdrawn and should take advice on this.   

Once the Home Office has been notified of a change in circumstances (either via the University or via the student), it is open to them to curtail the student’s visa.  In the event that they do so, an applicant would typically be given 60 days in which to either leave the UK, or to apply for a new visa.   While this is the position in theory, in practice, the Home Office rarely take proactive steps to curtail a person’s leave, and provided a student does not receive a curtailment notice from the Home Office, their student visa will remain valid. 

In the event the Home Office does take curtailment action, they will contact the student using the contact details they have on file.  Students should therefore ensure that their contact details (email address, phone number and home address) remain up to date with the Home Office.

Importantly, if the student travels after the Home Office has been notified of the University’s sponsorship withdrawal, they may be denied re-entry to the UK as a student so it is very important to take advice at the earliest opportunity and before any planned travel.

 

Further information

If you have any questions or concerns about the content covered in this blog, please contact Shannett Thompson, Katie Newbury, Matthew Hardcastle or Josephine Burnett.

 

ABOUT THE AUTHORS

Shannett Thompson is a Partner in the Regulatory Team having trained in the NHS and commenced her career exclusively defending doctors. She provides regulatory advice predominantly in the health and social care and education sectors. Shannett has vast experience advising regulated individuals, businesses such as clinics and care homes and students in respect of disciplinary investigations.

Katie Newbury is a Partner in the immigration team and has over 10 years' experience across a wide spectrum of UK immigration matters, with particular expertise in applications made under Tier 1 of the Points Based System and complex personal immigration matters.

Matthew Hardcastle's specialty is in pre-charge investigations and litigation.  Matthew has represented regulated individuals, politicians, senior police officers, financiers, government officials, members of the film and TV industry, entertainers and sports stars. Matthew is also a member of the Prosecution Oversight Panel of the RSPCA.

Josephine Burnett is an associate in the private client immigration team, where she advises high net worth individuals on a range of UK immigration matters. She joined the team in November 2019, after completing her training contract at Kingsley Napley.