Date Legislation considered: 08 April 2022
Date Legislation in Force: 24 March 2022
Potential Right(s) Affected: Residence/Discrimination/Equal Treatment
What does the legislation do?
The Explanatory Memorandum states that the purpose of this rule* is to:-
“provide support for students taking designated higher education courses in respect of the academic year 2022”. It also makes a number of amendments to student finance legislation to:-
“remove any redundant provisions for academic year 22/23 where the Grace Period has ended for the EU Settlement Scheme” and “clarify the position of Citizens Rights in relation to late applicants and joining family members”.
Two sets of student support legislation are amended. The Student Fees (Qualifying Courses and Persons) Regulations (Northern Ireland) 2007 and The Education (Student Support) (No. 2) Regulations (Northern Ireland) 2009. The legislation sets out the eligibility of higher education students for financial support in terms of tuition fees and maintenance grants and loans.
During the ‘Grace Period’, i.e. the sixth month period from 1st January 2021 until 30 June 2021, the Withdrawal Agreement and EEA EFTA Separation Agreement (“the Agreements”) provided that EU citizens and EEA EFTA citizens who were lawfully resident in the UK by virtue of EU free movement rules but who did not yet have status under the EU Settlement Scheme (“EUSS”) had their rights protected*. In accordance with the Agreements, the student support legislation amended by this rule provided for students in scope of the Agreements to be treated as eligible during the ‘Grace Period’ even where they had made no application to the EUSS. Following the end of the ‘Grace Period’ references to it are now redundant and have been removed accordingly by this rule.
Late applicants and joining family members
This rule amends student support legislation to provide that EU and EEA EFTA citizens who have made an application to the EUSS after 30th June 2021, including joining family members are eligible for student support providing they meet any other eligibility requirements.
Applicants to the EUSS after 30 June 2021, including joining family members of EU and EEA EFTA citizens are entitled to the rights provided under Part 2 of the Withdrawal Agreement and Part 2 of the EEA EFTA Separation Agreement* while their application is being processed. This was recognised in an announcement made by the UK Government’s Home Office on 6 August 2021.
Whilst this rule clarifies the position moving forward, the legislation only came into force on 24th March 2022. It is therefore not clear whether late applicants/joining family members were eligible for student support following the end of the ‘Grace Period’.
Guidance* issued by the Northern Ireland Executive references the position of late applicants and joining family members. The guidance states that the:
“Department for Economy would expect institutions to apply a similar approach when assessing home fee status and separate guidance has been issued to institutions”.
The Student Finance NI website however does not appear to reflect the rights of late applicants and joining family members. It provides that:
“if you’re an EU student starting a course on or after 1 August 2021, you must have settled or pre-settled status in the UK under the EU Settlement Scheme to get student finance”.
The IMA asked officials at the Northern Ireland Executive whether the delay in making the amending legislation had any practical effect on late applicants/joining family members in the academic year 2021/22. The IMA was concerned that there could be some late applicants/ joining family members who had been denied student finance for higher education on the basis of their immigration status. Officials at the Northern Ireland Executive stated that:
“For higher education support, this cohort was being treated as eligible in advance of the amending regulations (2022/75) being laid. So applicants would have been considered as eligible prior to 24th March. It was communicated to the Education Authority who process applications on the Department’s behalf that they adopt this as a policy (based on the WA requirements) until the legislation could be updated. The NI Direct website was updated however it appears the SFNI was not and should have been.”
Any citizen experiencing difficulties in exercising their rights are encouraged to report a complaint through the IMA Portal.
Further information about the IMA and guidance on how to report complaints can also be found our website.
*Statutory Rules of Northern Ireland are the equivalent of Statutory Instruments for Northern Ireland.
*Article 18(2) Withdrawal Agreement and Article 17(2) EEA EFTA Separation Agreement
*Accessed on 08.04.22
*See Article 18(2) and (3) of the Withdrawal Agreement and Article 17(2) and (3) of the EEA EFTA Separation Agreement.