Wales introduces home fees and Student Support for people with long residence, or stateless leave

27 July 2018
The Education (Student Finance) (Miscellaneous Amendments) (Wales) Regulations 2018 (Statutory Instrument 2018 No.814) introduce two new important categories of people who qualify for 'home' fees and Student Support in Wales. The categories come into effect on 30 July 2018.

Long residence

The first new category has been introduced in response to the judgement of the Supreme Court in the case of R (Tigere) v Secretary of State for Business, Innovation and Skills [2015] UKSC 57. It provides for people (and their family members) who have been granted leave to remain in the UK either:

  • under the “private life” provisions of the Immigration Rules. Those provisions of the Immigration Rules cater for people who have lived continuously in the UK for half their life (if they are between 18 and 25), or 20 years (if they are over 18), or 7 years (if they are under 18), or less than 20 years (if there are very significant obstacles to them reintegrating abroad); or

  • outside the Immigration Rules on the grounds of Article 8 of the European Convention on Human Rights, following a refusal to grant them leave under the “private life” provisions of the Immigration Rules.

The leave to remain that they have been granted does not need to be indefinite leave, it can be leave for a limited period. The category is slightly different from the equivalent categories in England and Scotland because assessors do not themselves test a person’s residence for half a life, or 20 years, or 7 years. Instead they look to see whether the documents issued by the Home Office show that the person’s leave was granted under the “private life” provisions of the Immigration Rules (or outside the Immigration Rules on the grounds of Article 8, following a refusal to grant leave under the “private life” provisions).

A full outline of the requirements of the category appears at the end of this news item (there are separate ones for fees and for Student Support). If you are looking for the category in the fees or Student Support regulations, it appears as a sub-category of the ‘Persons with leave to enter or remain and their family members’ category (look for the definition of a ‘person with leave to enter or remain’, and you will see it at subparagraphs (iii) and (iv) of that definition) .

Stateless leave

The second new category provides people with stateless leave, and their family members. Few people have such leave.

A full outline of the requirements of the category appears at the end of this news item (there are separate ones for fees and for Student Support).

We believe that a mistake has been made with one of the requirements for entitlement to 'home' fees. The regulations state that a student must be ordinarily resident in Wales (rather than the UK, as is the case for all other categories where the requirement applies) on the first day of the first academic year of the course. We will contact the Welsh Government to point out the error and to ask them to correct it, but please contact us on the advice line if you have to make an assessment that turns on that point in the meantime.

Full outlines for each category appear below

 

THE LONG RESIDENCE CATEGORY FOR FEE ASSESSMENTS:

Wales: ‘Persons with leave to enter or remain’ (humanitarian protection or discretionary leave or private life), and family

In order to qualify for ‘home’ fees under this category, you must meet all of the following criteria:

(a) you must be ordinarily resident in the UK on the first day of the first academic year of the course; and

(b) on the first day of an academic year of your course, you must be:

1. a "person with leave to enter or remain", which means a person:

o who has -

 applied for refugee status but has, as a result of that application, been informed by the Home Office that, although he/she is considered not to qualify for recognition as a refugee, it is thought right to allow him/her to enter or remain in the UK on the grounds of humanitarian protection or discretionary leave, and who has been granted leave to enter or remain accordingly, or

 not applied for refugee status but has been informed by the Home Office that it is thought right to allow him/her to enter or remain in the UK on the grounds of discretionary leave, and who has been granted leave to enter or remain accordingly, or

 been granted leave to remain on the grounds of private life under the immigration rules. Leave to remain on the grounds of private life is usually only granted under the immigration rules to people who have lived continuously in the UK for half their life (if they are between 18 and 25 years old), or 20 years (if they are over 18), or 7 years (if they are under 18), or less than 20 years (if the Home Office accepts that there are very significant obstacles to them reintegrating abroad), or

 been informed by the Home Office that although he/she is not considered to qualify for leave to remain on the grounds of private life under the immigration rules, he/she has been granted leave to remain outside the immigration rules on the grounds of Article 8 of the European Convention on Human Rights; and

o whose period of leave to enter or remain has not expired, or has been renewed and the period for which it was renewed has not expired, or in respect of whose leave to enter or remain an appeal is pending; and

o who has been ordinarily resident in the UK and Islands throughout the period since he/she was granted leave to enter or remain;

or

2. the spouse or civil partner of a “person with leave to enter or remain” (look above for the definition). You must have been their spouse or civil partner at the time they made the application that resulted in them being given their leave;

or

3. the child of either:

• a “person with leave to enter or remain” (look above for the definition). You must have been their child at the time they made the application that resulted in them being given their leave, and under 18 on that date; or

• the spouse or civil partner of a “person with leave to enter or remain” (look above for the definition). At the time when the “person with leave to enter or remain” made the application that resulted in them being given their leave:
o they must have been the spouse or civil partner; and
o you must have been the child of the spouse or civil partner; and
o you must have been under 18.

Becoming eligible

• You, your parent (or your parent's spouse / civil partner), or your own spouse / civil partner might be granted humanitarian protection, discretionary leave, private life or Article 8 leave after the start of the course. If that happens, seek advice about whether you have become eligible for ‘home’ fees.

Notes

• The leave to enter or leave to remain might have an expiry date. If the person makes an application to extend or change their leave before it expires, and that application is not decided before the expiry date, then immigration law dictates that they carry on being treated as a “person with leave to enter or remain” while they wait for a decision to be made (and if their application is refused, then also while they wait for an appeal or administrative review of the decision). They count as a “person with leave to enter or remain” for fee assessment purposes during all of that time.


THE LONG RESIDENCE CATEGORY FOR STUDENT SUPPORT APPLICATIONS:

Wales: ‘Persons with leave to enter or remain’ (humanitarian protection or discretionary leave or private life), and family

If you satisfy all the conditions under this category, you will be eligible for full Student Support. To be eligible:

(a) you must be ordinarily resident in Wales on the first day of the first academic year of the course; and

(b) you must be:

1. a "person with leave to enter or remain", which means a person:

o who has -

 applied for refugee status but has, as a result of that application, been informed by the Home Office that, although he/she is considered not to qualify for recognition as a refugee, it is thought right to allow him/her to enter or remain in the UK on the grounds of humanitarian protection or discretionary leave, and who has been granted leave to enter or remain accordingly, or

 not applied for refugee status but has been informed by the Home Office that it is thought right to allow him/her to enter or remain in the UK on the grounds of discretionary leave, and who has been granted leave to enter or remain accordingly, or

 been granted leave to remain on the grounds of private life under the immigration rules. Leave to remain on the grounds of private life is usually only granted under the immigration rules to people who have lived continuously in the UK for half their life (if they are between 18 and 25 years old), or 20 years (if they are over 18), or 7 years (if they are under 18), or less than 20 years (if the Home Office accepts that there are very significant obstacles to them reintegrating abroad), or

 been informed by the Home Office that although he/she is not considered to qualify for leave to remain on the grounds of private life under the immigration rules, he/she has been granted leave to remain outside the immigration rules on the grounds of Article 8 of the European Convention on Human Rights; and

o whose period of leave to enter or remain has not expired, or has been renewed and the period for which it was renewed has not expired, or in respect of whose leave to enter or remain an appeal is pending; and

o who has been ordinarily resident in the UK and Islands throughout the period since he/she was granted leave to enter or remain;

or

2. the spouse or civil partner of a “person with leave to enter or remain” (look above for the definition). You must have been their spouse or civil partner at the time they made the application that resulted in them being given their leave;

or

3. the child of either:

• a “person with leave to enter or remain” (look above for the definition). You must have been their child at the time they made the application that resulted in them being given their leave, and under 18 on that date; or
• the spouse or civil partner of a “person with leave to enter or remain” (look above for the definition). At the time when the “person with leave to enter or remain” made the application that resulted in them being given their leave:
o they must have been the spouse or civil partner; and
o you must have been the child of the spouse or civil partner; and
o you must have been under 18;

and

(c) you must have been ordinarily resident in the UK and Islands for three years before the first day of the first academic year of your course.

Notes:

• The leave to enter or leave to remain might have an expiry date. If the person makes an application to extend or change their leave before it expires, and that application is not decided before the expiry date, then immigration law dictates that they carry on being treated as a “person with leave to enter or remain” while they wait for a decision to be made (and if their application is refused, then also while they wait for an appeal or administrative review of the decision). They count as a “person with leave to enter or remain” for Student Support purposes during all of that time.

• You, your parent (or your parent's spouse / civil partner), or your own spouse / civil partner might be granted humanitarian protection, discretionary leave, private life or Article 8 leave after the start of the course. If that happens, seek advice about whether you have become eligible for Student Support.


THE STATELESS CATEGORY FOR FEE ASSESSMENTS:

Wales: Persons with stateless leave, and family

In order to qualify for ‘home’ fees under this category, you must meet all of the following criteria:

(a) you must be ordinarily resident in Wales on the first day of the first academic year of the course; and

(b) on the first day of an academic year of your course, you must be:

1. a “person granted stateless leave”, which means a person:

• who has extant leave to remain as a stateless person under the immigration rules; and
• who has been ordinarily resident in the UK and Islands throughout the period since being given leave to remain as a stateless person;

or

2. the spouse or civil partner of a “person granted stateless leave” (look above for the definition). You must have been their spouse or civil partner at the time they made an application for stateless leave;

or

3. the child of either:

• a “person granted stateless leave” (look above for the definition). You must have been their child at the time they made an application for stateless leave, and under 18 on that date; or

• the spouse or civil partner of a “person granted stateless leave” (look above for the definition). At the time when the “person granted stateless leave” made an application for stateless leave:
o they must have been the spouse or civil partner; and
o you must have been the child of the spouse or civil partner; and
o you must have been under 18;

and

(c) you must have been ordinarily resident in the UK and Islands for the three year period before the first day of the first academic year of the course.

Becoming eligible

• You, your parent (or your parent's spouse / civil partner), or your own spouse / civil partner might be granted stateless leave after the start of the course. If that happens, you will be entitled to ‘home’ fees from the start of the next academic year if you meet the requirements above.

Notes:

• The stateless leave might have an expiry date. If the person makes an application to extend or change their stateless leave before it expires, and that application is not decided before the expiry date, then immigration law dictates that they carry on being treated as a “person granted stateless leave” while they wait for a decision to be made (and if their application is refused, then also while they wait for an administrative review of the decision). They count as a “person granted stateless leave” for fee assessment purposes during all of that time.

• If you fail to meet requirement (a) because you were ordinarily resident in England, Scotland or Northern Ireland (instead of in Wales) on the first day of the first academic year of the course, ask your university or college to check with UKCISA whether it matters or not. This is because there might be an error in the drafting of the regulations.

 

THE STATELESS CATEGORY FOR STUDENT SUPPORT APPLICATIONS:

Wales: Persons with stateless leave, and family

If you satisfy all the conditions under this category, you will be eligible for full Student Support. To be eligible:

(a) you must be ordinarily resident in Wales on the first day of the first academic year of the course; and

(b) you must be:

1. a “person granted stateless leave”, which means a person:

• who has extant leave to remain as a stateless person under the immigration rules; and
• who has been ordinarily resident in the UK and Islands throughout the period since being given leave to remain as a stateless person;

or

2. the spouse or civil partner of a “person granted stateless leave” (look above for the definition). You must have been their spouse or civil partner at the time they made an application for stateless leave;

or

3. the child of either:

• a “person granted stateless leave” (look above for the definition). You must have been their child at the time they made an application for stateless leave, and under 18 on that date; or

• the spouse or civil partner of a “person granted stateless leave” (look above for the definition). At the time when the “person granted stateless leave” made an application for stateless leave:
o they must have been the spouse or civil partner; and
o you must have been the child of the spouse or civil partner; and
o you must have been under 18;

and

(c) you must have been ordinarily resident in the UK and Islands for the three year period before the first day of the first academic year of the course.

Notes:

• The stateless leave might have an expiry date. If the person makes an application to extend or change their stateless leave before it expires, and that application is not decided before the expiry date, then immigration law dictates that they carry on being treated as a “person granted stateless leave” while they wait for a decision to be made (and if their application is refused, then also while they wait for an administrative review of the decision). They count as a “person granted stateless leave” for Student Support purposes during all of that time.



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