The Scottish Government published The Education (Fees and Student Support) (EU Exit) (Scotland) (Amendment) Regulations 2021 on 21 January 2021.
These amendment regulations affect fees assessment and Student Support applications only in Scotland and they make changes to the existing fees and student support regulations from 1 August 2021.
This means that Scotland has now laid down in law how it plans to provide eligibility for 'home' fees and Student Support for a limited range of EU nationals and family, EEA/Swiss workers and family, children of Swiss nationals, and children of Turkish workers, who start courses on or after 1 August 2021.
The amendment regulations also clarify that those students who have already started courses in the 2020/21 academic year or before will continue to be eligible under the current provisions.
The Scottish Government has also published guidance for fee assessors in colleges and universities – we understand from the Scottish Government that the guidance was sent to institutions this week.
We are currently busy analysing the changes to the legislation, in conjunction with the new guidance, and we will alert you in a further news item when we have compiled our information and advice on eligibility.
UKCISA members will soon be able to access a UKCISA consolidated version of The Education (Fees) (Scotland) Regulations 2011 (as amended), to show how they will look from 1 August 2021. This will be in the UKCISA manual. We will also post a copy of the Scottish Government guidance there.
In the meantime, here are the headline changes affecting The Education (Fees) (Scotland) Regulations 2011, which affect eligibility under the Scottish fees assessment system for courses starting on or after 1 August 2021. Similar changes will affect entitlement to Student Support.
The changes affect the following existing categories:
- ‘Settled' people who exercise a 'right of residence' in the EEA and/or Switzerland, and family members of 'settled' UK nationals (Schedule 1, paragraph 3)
- EU nationals and family (Schedule 1, paragraph 10)
- Non-UK EU nationals and family, ordinary residence in UK & Islands (Schedule 1, paragraph 9)
- Non-UK EEA nationals and family, right of permanent residence in UK (Regulation 3)
- Non-UK EEA and Swiss migrant workers and family (Schedule, paragraphs 1 & 2)
- Children of Swiss Nationals (Schedule 1, paragraph 11)
- Children of Turkish workers (Schedule 1, paragraph 13)
This means that the following categories appear to be unaffected:
- Relevant connection with Scotland (Regulation 3)
- Long residence (also from Regulation 3)
- People with refugee status and family (Schedule 1, paragraph 4)
- Those not recognised as refugees but allowed to remain in the UK and family (Schedule 1, paragraph 5)
- Iraqi nationals granted indefinite leave to enter the UK under the Locally Engaged Staff Assistance Scheme (Direct Entry) and family (Schedule 1, paragraph 6)
- Syrian (Vulnerable Persons Relocation Scheme) nationals and family (Schedule 1, paragraph 6A)
- Afghan (Locally Employed Staff Ex-Gratia Scheme) nationals and family (Schedule 1, paragraph 6B)
- Those granted stateless leave and family (Schedule 1, paragraph 6C)
- Those granted discretionary leave as a ‘victim of modern slavery’ (Schedule 1, paragraph 6D)
- Victims of domestic abuse/violence (Schedule 1, paragraph 6E)
- Persons granted Calais Leave (Schedule 1, paragraph 6F)
- Temporary protection (Schedule 1, paragraph 7)
- Unaccompanied asylum-seeking children and children of asylum seekers (Schedule 1, paragraph 8)
- Reciprocal exchange students (Schedule 1, paragraph 12)
The category for Non-UK EU nationals and family with three years’ ordinary residence in the UK & Islands (Schedule 1, paragraph 9), often referred to as the ‘Bidar’ category, will be removed altogether.
The list of EU overseas territories, which is defined in the regulations, will be deleted. This area will also be removed from the required area of ‘ordinary residence’ laid down in each of the existing EU-related categories.
The area of ordinary residence for the affected categories will now include the United Kingdom, Islands, and Gibraltar, as well as the existing areas of the European Economic Area and Switzerland (plus Turkey, for the Child of a Turkish worker category only).
The following existing categories will now require that, in order to be eligible under them, a person must be a “person with protected rights”:
- EU nationals and family (Schedule 1, paragraph 10)
- EEA and Swiss migrant workers and family (Schedule, paragraphs 1 & 2)
The definition of a “Person with protected rights” is being added to the regulations. It will include the following people:
- a person granted settled status or pre-settled status under the EU Settlement Scheme (EUSS);
- a person who applied under the EUSS by 30 June 2021 but who has not yet received a decision;
- an Irish national (who would have been eligible to apply under the EUSS but did not);
- the family member of a “relevant person of Northern Ireland”, who holds settled or pre-settled status under the EUSS
A “relevant person of Northern Ireland” will also be a defined term, which will make reference to the requirements of the EUSS. The guidance issued by the Scottish Government confirms that:
“Those who have a family member that is an eligible person of Northern Ireland can also apply to the EUSS (regardless of whether the family member is an EU, EEA or Swiss citizen).
- To be eligible, the person of Northern Ireland must:
- be a UK, Irish or dual UK/Irish national;
- have been born in Northern Ireland;
- at the time of their birth, have at least one parent who held British, Irish or dual nationality (or was without any restriction on their period of residence);
- be living in the UK by 31 December 2020.”
A person will be liable to lose their eligibility as an eligible (‘excepted’) student if they do not apply under the EU Settlement Scheme in time, or if they do not apply to extend their permission granted under the EU settlement scheme in time.
Explicit provision for people with the right of permanent residence (RoPR) (formerly in regulation 3) will now disappear, because people with RoPR are no longer considered to be ‘settled in the United Kingdom within the meaning given by section 33(2A) of the Immigration Act 1971’. Subject to meeting other criteria, such people may instead be provided for as persons ‘with protected rights’ – see above.
Separately, a new category for Irish nationals is also being added to the regulations. This will provide for a person who is an Irish national, who is settled in the UK, and who is ordinarily resident in Scotland on the relevant date. Such a person must have been ordinarily resident in the UK, Islands, or Republic of Ireland, throughout the period of three years immediately preceding the relevant date.
The category for the Child of Swiss national is to be amended and, whilst in the regulations there is no explicit new requirement that either the student or their parent must have settled or pre-settled status under the EU Settlement Scheme, the guidance makes clear that they both must have this. We understand this requirement is brought in by virtue of provisions within the Swiss Citizens’ Rights Agreement.
The category for the Child of a Turkish worker is to be amended to require that both the Turkish worker and child must have been ordinarily resident in the UK immediately before the end of the post-Brexit implementation period (that is, before 11pm on 31 December 2020).