Good news for students who hold Humanitarian Protection or who are the spouse, civil partner or child of a person with Humanitarian Protection.
Central England Law Centre took legal action on behalf of a student with Humanitarian Protection who was denied a student loan because she had not been ordinarily resident (living lawfully) in the UK for a period of three years before her course started. This has been a requirement in England for student finance for many years and it was added to the eligibility requirements for home fee status in August 2019. As a result of this legal action, the Department for Education in England has reconsidered the ordinary residence requirement for both home fee tuition fee status and for student finance. UKCISA is delighted by this, though disappointed it required legal action; we asked the department to remove this requirement when the new tuition fee regulations were first published.
The Department for Education has asked us to publish the following information, and we expect the regulations to be amended in the future, hopefully very soon.
“The Higher Education (Fee Limit Condition) (England) Regulations 2017 (the 2017 regulations) provide that those with Humanitarian Protection leave must have been ordinarily resident for three years prior to the start of their course to benefit from limits to the tuition fees that can be charged by Higher Education Providers in the Approved (fee cap) part of the OfS register. No such requirement is imposed on those holding Refugee Status.
Due to changes in immigration and social welfare law over time, the Department for Education now considers there to be no material difference between the rights accorded to those holding Refugee Status and Humanitarian Protection leave and only minor reasons for the grant of one of those forms of leave rather than the other. Therefore, the DfE considers that there should be no difference in the period of ordinary residence required prior to the start of a course, as between those immigration statuses. The Department is considering how best to amend the 2017 regulations to remove any potentially discriminatory impact arising from the current rules.
In the meantime, the Department encourages Higher Education Providers registered in the Approved (fee cap) part of the OfS register to disapply (on the basis of the approach suggested in the recent Supreme Court judgment of RR v Secretary of State for Work and Pensions) the three-year ordinary residence requirement in the 2017 regulations when considering whether a person with Humanitarian Protection status (and relevant family members) should be subject to a statutory limit on their tuition fees. Where necessary, until the relevant regulations have been amended, the Department will be asking the Student Loans Company to take this approach when assessing eligibility for student finance from those with this type of leave under the Education (Student Support) Regulations 2011, which also impose an identical three-year requirement.
The Department will provide an update on its consideration of how to amend the relevant regulations in due course.”
The Department for Education told us that it cannot force institutions to change their fee assessments before the relevant regulations have been amended, and institutions will need to reach their own conclusion about whether the three-year requirement, as applied to the Humanitarian Protection category, is discriminatory. However, the department is making education providers aware of the conclusion it has come to regarding the three-year requirement, and they risk legal challenge from individual students if they do not follow this approach.
If you are a student, and want to know if this will benefit you, please contact your education provider in the first instance, and call us on our student advice line if you want a second opinion - see Contact us.
This change affects only students studying in England and applying for support from Student Finance England. The regulations for Scotland do not impose a three-year ordinary residence requirement on people with Humanitarian Protection and their family members for home fee status or student finance.
In Wales and Northern Ireland, the residence requirement for students in this category does not apply to home fee eligibility, but it is a requirement for student finance. We will ask the relevant departments in Wales and Northern Ireland if they intend to amend their student support regulations in line with England and Scotland, and will post a news item when we hear back.
For details of the eligibility requirements for home fee status and for student finance, see England: fee status, Scotland: fee status, Wales: fee status, Northern Ireland: fee status and Government Student Support.