The internationalisation of HE has resulted in an ever-expanding number of partnership opportunities. However, greater opportunities can mean greater risks. It is essential that staff carry out due diligence of partners to maximise the educational and business benefits of international collaboration and, also, to avoid the common pitfalls associated with such activities.
Due diligence may seem unnecessarily time consuming and expensive at the start of a promising partnership, but it will help the University to avoid entering into binding legal commitments which can generate substantial ongoing costs if they are not properly conceived, structured and documented. Potential partners would expect to due diligence enquiries to be carried out as this is best and effective practice in the HE sector. Due diligence is therefore in the best interest of both/all parties to the agreement, and – especially – the students who are recruited to the programmes we offer through our partnerships. Due diligence is usually a mutual exercise: be prepared for a prospective partner to ask for similar information from us as part of their own due diligence process. If overseas partners are unfamiliar with due diligence and query the need for providing such information, we can reassure them that:
- It is a requirement of the UK HE sector’s quality assurance body, the QAA;
- It will allow the partners to fully understand each other, avoid misunderstandings and to manage the collaboration in the best possible way, for the benefit of students;
- It will ensure the University’s compliance with current legislation and guidelines;
- In return, the University will fully participate in the potential partner’s own due diligence enquiries.
There is an expectation that a site visit would be made to any potential partner before the University would send students on outward mobility programmes to maintain the University’s Duty of Care to its students and a risk-based approach will be taken. However, it is paramount that parity of student experience is assured. A site visit report is part of the due diligence process. The site visit might be made by an academic member of staff or representative from the Academic Partnerships Directorate or International Development Office, as appropriate.
Will a Risk Assessment be Required for a Collaborative Programme?
A risk assessment is carried out by Colleges/Schools/Academic Quality Services (depending on the nature of the collaboration) on all proposals to assess the level of risk associated with the proposed partner organisation and partnership arrangements. Higher risk ventures and larger projects would involve further liaison with the University’s Resilience and Business Continuity Department and the Planning and Strategic Projects Unit.
What is Academic Due Diligence?
Academic due diligence considers the academic quality and reputation of the proposed partner and is used to determine whether they have the necessary degree awarding powers, teaching and research resources and the ability to deliver parity of student experience to be involved in the collaboration. Academic due diligence should be carried out by the relevant College/School (or site visit team, which may include APD/AQS) and be tailored to the nature of the proposed collaboration. The following areas for scrutiny are identified in International Partnerships: A Legal Guide for UK Universities (published by the UK Higher Education International Unit in association with Eversheds LLP March 2013):
- Accreditation requirements in the territory relevant to the potential partnership;
- Number, qualifications, expertise and capacity of key academic, administrative and support staff for operating the partnership and arrangements for recruiting additional staff where required;
- Number, qualifications, expertise and capacity of academic staff for carrying out marketing/ student recruitment/teaching/research according to the envisaged partnership arrangements;
- Availability and quality of facilities and materials (research, laboratories, teaching venues, library access, accommodation, IT facilities for students and employees, student welfare);
- Recruitment process and selection criteria of participating students (if any);
- Academic standards and assessment and examination criteria and procedures;
- Language qualifications of key members of faculty, employees and students;
- Quality assurance arrangements;
- Previous experience of the proposed partner of partnerships with other UK universities and availability of independent academic references.
What is Legal Due Diligence?
Legal due diligence is essential for all collaborations. However, the nature and extent will depend on the risk of the project. Legal due diligence involves establishing other organisation’s power and authority to undertake the collaboration and identifying any legal matters which might impinge on the project, or Swansea University’s readiness to work with the other organisation. The extent of legal due diligence necessary would depend on the nature of the proposed collaboration. Higher risk ventures and larger projects would involve further liaison with the University’s Legal Services Team.
As part of the legal due diligence enquiries, Tier 4 (and Tier 2, if appropriate) status of the partner/proposal will be established.
Any issues concerning UKVI Tier 4 (and Tier 2) visa compliance will also be investigated.
What is UKVI Tier 4 Compliance?
Tier 4 of the Points Based System is the primary immigration route for non-EEA students who wish to study full-time in the UK. These students must be sponsored by an education provider that holds a Tier 4 licence. The education provider is known as a sponsor. The Tier 4 sponsorship regime is based on two basic principles:
- sponsorship is a privilege and not a right so those who benefit most directly from student migration (education providers) must help to prevent the system from being abused; and
- those applying to come to the UK to study must be eligible to do so, and must have a reputable education provider who genuinely wishes to teach them.
How do we Demonstrate that New Collaborative Programmes are UKVI Compliant?
Legal due diligence enquiries would establish compliance. For example:
- What is the Tier 4 status of the partner/proposal?
- Are there any issues regarding UKVI Tier 4 visa compliance to be aware of?
- Are the monitoring processes valid and equal?
Where can Further Information about UKVI and Relevant Visas eg Tier 4 be Found?
Further information can be found at Gov.UK.
What is Financial Due Diligence?
The purpose of financial due diligence is to decide:
- Is there anything that should stop Swansea University entering into this arrangement?
- Are there issues that Swansea University needs to protect itself against in the contract?
- Is there a risk of financial failure or concerns around solvency?
- Are the concerns surrounding financial sustainability?
Some form of financial due diligence is always necessary. However, what is needed will depend on the arrangement itself. The purpose of financial due diligence is to check on the financial strength of an organisation. At the limited end it could be a check of publicly available financial information. At the extensive end it should involve the financial and tax history of your partner, and the organisational, management and statutory position. Information concerning the type and associated risk of the partner would be required e,g, is the proposed partner a public/state-owned organisation, or, is it privately owned? Non-public organisations would need financial approval by the Head of Finance (or their representative). The time and costs of undertaking this will therefore need to be factored into the College’s/School’s business plan for the collaboration. Higher risk ventures and larger projects would involve further liaison with the University’s Finance Department.
What is Ethical Due Diligence?
Ethical due diligence is carried out to establish whether the proposed partner aligns with Swansea University policy and values. This is important as non-alignment could adversely affect the parity of student experience and carry a significant reputational risk to the University.
These are the areas which would usually be considered:
- Equality, Diversity and Inclusivity;
- Human Rights;
- Intellectual Property;
- Does the proposed partner have any affiliations or relationships that may be of concern? For example, arms, tobacco, oil companies, operations in countries not aligned to the University’s values.
- Are there any current concerns regarding travel to/health and safety in the partner location? For example, is there any current Foreign & Commonwealth Office advice?
Higher risk ventures and larger projects would involve further liaison with several of the University’s departments for advice, e.g. Governance, International Development Office, Resilience and Business Continuity Department.