Applicants whose courses don’t run have rights they can’t use

An international student, usually postgraduate, sometimes deferred once already, has an offer, a paid deposit, a CAS, a visa and a flight booked.

An email arrives saying the course won’t be running – curriculum review, portfolio review, insufficient numbers, restructuring, sometimes no excuse at all – and offers a choice between a different course, a different campus, or another year’s wait.

Then come the “helpful” replies. Get it in writing. Don’t fly. Document every cost. Don’t accept the alternative, because accepting it might weaken your claim.

That last one is wrong, and wrong in a way that costs people money. Accepting a substitute doesn’t waive a damages claim, while turning down a genuinely suitable one can reduce what you recover, because claimants are expected to mitigate their loss.

It gets repeated every August anyway, because there’s nobody in those threads with the standing to correct it.

The examples run together after a while. A masters applicant from South Asia deferred from one September to the next, then told eight days before the flight that the programme had been withdrawn.

A student who’d resigned a job and given notice on a flat before the intake was pulled. Somebody else offered a third deferral, which for a sponsored student means a lapsed CAS, a fresh visa application and a second health surcharge.

And one told two weeks out that their course wasn’t running and offered a different one in its place – no other detail, no mention of a refund, of costs, of any right to refuse – who simply assumed they had to accept.

They’d signed the contract, and nobody had mentioned that the university had just broken it, or that breaking it comes with consequences that run in the student’s favour.

What almost never appears in these threads is a university offering to cover the flights. And the rest.

The tuition deposit was never the exposure. The deposit sometimes comes back eventually, as long as the student or their agent badgers.

The real money is the visa fee, the immigration health surcharge, the flights, the medicals, the document translations, the courier costs and the bank charges on an international transfer, none of which the provider has said a word about.

The health surcharge is the worst of them, because the rules are explicit that there’s no refund where the visa was granted and the applicant then doesn’t travel.

A student whose course was cancelled by the provider has paid £776 a year – £1,164 on a typical masters visa, several thousand with dependants – to the Home Office for healthcare they will never use, with no clear route to get it back from anyone except the institution that cancelled on them.

Contract killings

The CMA settled the contractual position in November 2021, in a restatement issued alongside a DfE letter to vice chancellors about admissions.

When a provider makes an offer and the applicant accepts, a binding contract exists. A term giving the provider wide discretion to withdraw or cancel an accepted offer “effectively means the HE provider could simply choose not to comply with the terms of the offers it has made to prospective students”, and is likely to be unfair.

So are terms excluding liability where a provider fails to supply the place it agreed to – and the restatement notes that cancellation leaves the student facing “inconvenience at least, if not costs or other problems”.

An interesting thing happens when you line up three lists of reasons – the ones providers give in the cancellation email, the ones they wrote into their own contracts, and the ones the law will accept.

The emails say curriculum review. Or portfolio review, restructuring, a strategic refresh of the academic offer – language chosen to sound like considered academic planning rather than a financial decision, and vague enough to cover either.

The contracts say something much narrower. Having spent a good chunk of this year inside providers’ contract suites – student contracts, tuition fee policies, admissions policies, student protection plans – I can tell you the typical contract permits cancellation on three grounds.

• Insufficient enrolments to make the course viable.
• Genuine force majeure – flood, fire, Act of God, terrorism, acts of government, pandemics – with the blanket liability exclusions keyed to that list.
• And student fault: false information, unpaid fees, non-enrolment, misconduct, a revoked visa.

A power to cancel for “curriculum review” appears in none of the suites I’ve read.

And the law is pickier than either. CMA37, the unfair terms guidance, says a right to cancel where the consumer is at no fault is more likely to be fair only where it is non-discretionary, concerns circumstances making performance impossible or impractical, is clearly and specifically described, and excludes matters within the trader’s control – with vague reasons, missing notice and any failure to acknowledge repayment all flagged as markers of unfairness.

Where a term could bear more than one meaning, section 69 of the Consumer Rights Act requires the reading most favourable to the consumer to prevail.

So even low numbers – the one reason the contracts do contain – turns out to be conditional. “The course will not run unless fifteen students have accepted by 1 June” is objective, prominent and potentially defensible. “Not enough of you applied”, communicated after acceptance, with no threshold and no process, is a much weaker thing – recruitment is an ordinary commercial risk, partly within the provider’s control, and a provider watches its numbers for months before choosing when to pull the trigger.

A clause exercised in August, after the deposit has been held, the CAS issued and the flights booked, is a different instrument from the same clause exercised before anyone had spent anything. And a full, prompt refund is required either way, but a refund alone doesn’t make the term fair or dispose of liability for the losses the student incurred in reliance.

Which makes the letters a study in self-harm. A course culled in portfolio review is usually a course that doesn’t recruit, so the provider often holds a potentially defensible reason – and then declines to use it, because “hardly anyone applied” reads badly, and writes “curriculum review” instead.

If the numbers case exists, the provider has invited an argument about whether the stated reason was the real one, and a letter dressing a recruitment failure up as academic planning is itself the kind of misleading action the commercial practice rules prohibit – the listed matters expressly include the motives for the practice.

If the numbers case doesn’t exist – the course recruited fine, and was cut for margin, strategic fit or a campus consolidation – no clause in the standard contract covers the decision at all, at any level of candour.

Nor can that be drafted around. A clause permitting cancellation “following portfolio review” would be a clause permitting cancellation for a matter within the provider’s own control – precisely what CMA37 says a fair no-fault cancellation term must exclude. The missing clause is missing because the law requires it to be. The choice the contracts leave providers is the honest one – carry the cost of your own decisions, or stop making them after people have booked flights.

The deposit terms are the same story. One fee policy I read this week says the advance payment is “only refundable” in three situations – visa refusal, failure to meet offer conditions, or “severe mitigating circumstances” assessed at the university’s discretion, with £180 retained for administration.

The provider closing the course isn’t on the list, so an applicant whose programme has been pulled has to argue that the provider’s own decision constitutes their mitigating circumstances, and pay for the privilege.

The guidance is about as clear as guidance gets – where a contract can’t proceed, the consumer gets a swift, full refund of prepayments, including sums described as non-refundable, with no administration fee.

Practice makes imperfect

Unfair terms law only looks at what’s in the contract. The other half of consumer law – the unfair commercial practices provisions in Part 4 of the DMCC Act, which replaced the CPUTRs for conduct from April 2025 – looks at what providers do.

A commercial practice covers acts and omissions “before, during or after the promotion or supply in question”, so the handling of the cancellation and the refund is regulated conduct in its own right, and a trader includes anyone “acting in the name of, or on behalf of” the business, which puts overseas recruitment agents inside the regime and makes the provider answerable for what they said.

If a provider’s curriculum transformation programme was already running, its governing body had already signed off closures, and its own student protection plan conceded that closure through portfolio review was a live risk, then the applicant being told to pay a deposit and apply for a visa needed to know.

The guidance forecloses the obvious defence – where information is concealed, the average consumer is taken not to know it, “even if they might know it from some other source”.

The benchmark is the bit nobody in higher education seems to have noticed. Where a practice is directed at a particular group, or a group is foreseeably vulnerable – and vulnerability expressly includes credulity and “the circumstances they are in”, on an objective test – the average consumer becomes the average member of that group.

International postgraduate applicants recruited overseas through agents, unfamiliar with UK higher education, dependent on the provider for immigration sponsorship, committing five figures eighteen months ahead of arrival, are both targeted and plausibly vulnerable.

All dressed up, no redress

All of which assumes somebody makes the argument. Almost nobody will.

In England and Wales, the OIA’s rules are unambiguous – it can’t look at a complaint from someone whose application was rejected or badly handled, because they were never a registered student. An applicant whose course was cancelled two weeks before enrolment has no ombudsman. And in Scotland, the SPSO won’t even open your email for 9 months – after which it’ll likely say it doesn’t handle contractual disputes.

They also have no students’ union – never enrolled, never a member, and in most cases they’ve never heard of the organisation. The single most effective source of free, independent, competent advice on exactly this question is sitting a few hundred metres from the admissions office, and the person who needs it will never find out.

In England, there’s the OfS notifications inbox, which will read the email, tell them nothing about what happens next, and pay them nothing. So what’s left is the provider’s own complaints procedure, followed by a county court claim in England from an applicant sitting in Chennai or Lagos or Accra who is not going to bring it.

The entire consumer protection framework above is, for this group, theoretical. Rights are rationed to the people with the stomach and the standing to fight for them, and this group has neither.

A C6 sense of protection

In England, OfS’ proposed condition C6, which replaces both C1 and C3 with decisions due this autumn, does fix some of this. Prospective students are brought expressly within scope. Course closure counts as a relevant change requiring a published protection policy.

Providers must identify risks to delivery, plan for them and act early – which goes directly to when a provider knew, and what it told applicants after it knew.

But the compensation duty is a duty to publish a policy stating when refunds and compensation are payable and how they’re calculated. There’s no mandatory head of loss – nothing says the policy has to cover visa fees, the health surcharge, flights, medicals or an unrecoverable accommodation deposit – so a provider can satisfy the documentary requirement with a clear and restrictive policy.

Nor is there any entitlement to a particular replacement: same subject, same level, same intake, sponsorship continuity, or a start date that doesn’t cost the applicant another year. And the redress signposting runs to the provider’s complaints process and then the OIA, which brings us back to a scheme that can’t accept these people at all. A condition that extends regulatory protection to prospective students while pointing them at an ombudsman closed to prospective students is a strange piece of architecture.

The trade-off in dropping student protection plans is genuine, mind. Prior approval sounds like a safeguard, and the plans that regime produced include one I read this week that rates course closure “highly unlikely”, says in the following sentence that it’s “highly likely for courses to become non-viable”, then concludes that the provider assesses no risks as likely or highly likely. Applicants get a single sentence – if you haven’t started your course yet, we’ll let you know in time to find another suitable option.

Eight days before a booked flight, with a visa issued, is not in time.

None of this is an argument against closing courses. A provider that pulls a course before it makes offers is running its business, and one that sets an objective threshold with a decision date and tells applicants before they spend is close to the model CMA37 describes.

But a provider that invokes low numbers in August, or cancels for a reason its contract never contained, is choosing between paying for its decision and breaking a contract – and the law doesn’t offer a third option in which the applicant pays instead.

At the moment the applicant carries all of it: the recruitment risk, the curriculum risk and the financial consequences of a decision taken in a committee they’ve never heard of, in a country they haven’t reached, having spent money they can’t recover, with no ombudsman, no union and no realistic route to a court.

None of this needs to wait for a regulator. A provider closing a course on people who’ve accepted could tell them, in the cancellation letter itself, what their rights actually are – that a binding contract exists, that a full refund of everything paid follows without conditions or an admin fee, and that the provider will meet the costs incurred in reliance on the offer: visa fees, the health surcharge, flights, medicals, unavoidable accommodation liabilities.

It could set out the evidence for the reason it’s giving. It could offer a genuinely comparable alternative, fund any fee difference, and confirm in writing that discussing alternatives waives nothing. And it could publish a decision date for each course – after which the course runs or the provider pays – so that nobody’s exposure mounts while a committee makes up its mind.

A provider doing all of that would be complying with law that already binds it, not going above and beyond.

The regulatory version is just as available, at least in England. C6 could specify those heads of loss and require the decision date, and the OIA’s scheme rules could be amended to admit applicants whose accepted offer was withdrawn by the provider. Neither requires primary legislation.

Whether any of that happens will be decided this autumn. The people it matters most to won’t be responding to the consultation, because by then they’ll be somewhere else.