Scotland: new fees category for EU nationals and family with ‘protected rights’
February 03, 2023
A new eligibility category for EU nationals and family with ‘protected rights’ has been included in the Education (Fees) (Scotland) Regulations 2022, with effect from 2 February 2023.
The new category being added is for “EU nationals etc. with protected rights who have not been living in the UK for three years”. The addition of this category is made as a result of the Education (Fees and Student Support) (Miscellaneous Amendment) (Scotland) Regulations 2022, which the Scottish Government laid on 8 December 2022. The Scottish Government policy note accompanying December’s amendment regulations states that it expects this first change (on 2 February) “to be in operation for the remainder of the 2022/23 academic year and beyond”.
The amendment regulations also make other changes, which take effect from 1 August 2023. We will share more information with members in due course about the 1 August changes.
Analysis
The new category is added by virtue of a new paragraph, 1A, in Schedule 1 of the Education (Fees) (Scotland) Regulations 2022 (as amended). The new paragraph, and the existing paragraph 1, together provide for a person with (Brexit) ‘protected rights’ and who is either an EU national or the family member of an EU national.
Note: If a student has pre-settled status or settled status under the EU Settlement Scheme, they are considered to be a person with ‘protected rights’. Other types of people can also be considered to have ‘protected rights’, see our info on ‘person with protected rights’.
While the existing category (which is in paragraph 1) provides for those people who have been ordinarily resident in the UK throughout the period of three years immediately prior to the relevant date, the new category (which is in paragraph 1A) will provide for students who have not been ordinarily resident in the UK throughout that period. The new category looks like this:
EU nationals etc. with protected rights who have not been living in the UK for 3 years
1A. A student is an excepted student if that student is a person with protected rights who—
(a) is either an EU national or the family member of an EU national,
(b) has not been ordinarily resident in the United Kingdom throughout the period of 3 years immediately preceding the relevant date,
(c) is undertaking a course of education at an establishment in Scotland, and
(d) is ordinarily resident in the United Kingdom on the relevant date.
Since August 2022, the Scottish Government has intended to provide for EU nationals and family with ‘protected rights’ who have been ordinarily resident in an area much bigger than just the UK – that is anywhere within the area comprising the UK, the Islands, Gibraltar, the EEA, and/or Switzerland. The Scottish Government had actively instructed institutions to assess such students as eligible for ‘home’ fees, in a letter to the sector on 16 August 2022. In addition, the Student Support (Scotland) Regulations 2022 (as amended) have also, since August 2022, provided for tuition fee support for such people in this way (at Schedule 1, Part 2, paragraph 21).
The intention of the addition of this paragraph to the fees regulations at this point in the 2022-23 academic year seems to be to achieve that same provision in law (not just in guidance). It is not considered likely to lead to a change of fee status for many, if any, students at this point in the year.
In our reading of the new category, sub-paragraph 1A(b) (above) seems to state that a student can have been ordinarily resident anywhere in the world, not just in the area comprising the UK, the Islands, Gibraltar, the EEA, and/or Switzerland. Bearing in mind that, to be eligible under the category, a student also needs to be a person with ‘protected rights’, it is probably unlikely that many students will have spent any significant period of time in the part of the world that is outside the above area (UK, the Islands, Gibraltar, the EEA, and/or Switzerland). However, the Scottish Government has assured us that:
“We would consider it unlikely that there would be any students who would be looking to have their fee status re-assessed for the 2022/23 academic year. In the event that there is, SAAS has discretion to consider late applications for student support. If there are any individual cases that are brought to our attention, then we would look to work with both the student and the institution to clarify the position under the regulations and to find a suitable solution.”
Students who believe they qualify for the category should talk to their institutions straight away, to check how they are affected for the remainder of the 2022-23 academic year and for future years of their course.
