Date Legislation considered: 08 June 2022
Date Legislation in Force: 01 August 2022
Potential Right(s) Affected: Residence/Discrimination/Equal Treatment
What does the legislation do?
The Policy Note accompanying these Regulations explains that “the Regulations consolidate the Education (Fees) (Scotland) Regulations 2011 (“the 2011 Regulations”)” and set out “the eligibility criteria for the assessment of fee status of students undertaking a course of higher education in Scotland”.
The Regulations (which revoke and replace the 2011 Regulations) provide that it is lawful for a Scottish Higher Education Institution to charge higher fees to students who do not have a ‘relevant connection’ with Scotland. Scottish Higher Education Institutions are however prevented from charging higher fees to certain categories of students, referred to in the legislation as ‘excepted students’.
The categories of ‘excepted students’ are detailed in Schedule 1 to the Regulations and include:-
- EU nationals and their family members who fall within scope of the Withdrawal Agreement.
- EU and EEA EFTA nationals who are workers, frontier workers and self-employed persons who fall within scope of the Withdrawal Agreement or EEA EFTA Separation Agreement (“the Agreements”), along with their family members.
- In-time and late applicants to the EU Settlement Scheme(“EUSS”) who have not yet had their application determined.
Paragraph 1 of Schedule 1 to the Regulations, exempts EU nationals (and their family members) who are within the scope of the Withdrawal Agreement from being charged higher fees only where they are able to demonstrate that they have been ordinarily resident in the UK for 3 years prior to the first day of the start of the first year of their academic course.
The 2011 Regulations which are revoked by these Regulations permitted prior residence in the “United Kingdom and Islands, Gibraltar, the European Economic Area and Switzerland” to count as part of the 3-year residency requirement. This ensured that EU nationals were treated equally to domestic students as required by Articles 12 and 23 of the Withdrawal Agreement.
As it is unclear why this change (which is effective from 1st August 2022) had been made, we raised our concerns with Scottish Government officials who advised us that:-
“The effect of the accidental omission of persons with protected rights who have lived in the UK for less than 3 years is that institutions would be entitled to charge higher fees to such students. In practice, however, our understanding is that Scottish institutions are not charging higher fees to this category of persons but are instead treating them as home students in line with the Scottish Government policy position and the provisions in the 2011 Regulations. We are aware that institutions apply SAAS guidance to assess the fee status of students. The latest version of the guidance (issued for the academic year 2021/22) makes it clear that home fee status should be awarded to EU nationals and their family members living in the UK before the end of 2020 or those who have or have applied for settled or pre-settled status, and who have lived in the UK, EEA, or Switzerland for the past 3 years and are ordinarily resident in the UK on the relevant date. We have not communicated any change in approach to the sector, so this guidance remains current.
As a result, we are confident that students commencing courses in 2022/23 who have protected rights but do not meet the 3 years’ residence requirement in the UK will not have been placed at a disadvantage compared to UK nationals domiciled in Scotland. They will continue to benefit from home tuition fee status and as such will enjoy equal treatment with UK nationals in line with Article 23(1) of the Withdrawal Agreement. The number of students in this category appears to be low. SAAS are aware of a very small number of students in this cohort for the academic year 2022/23, all of whom have been assessed as having home fee status and are receiving support towards their tuition fees (but no living cost support).
To put this beyond doubt, we intend to write to the sector to make it clear that we expect institutions to continue to assess students in this category as home fee students. They will continue to be eligible until the expiry of the 3-year period from Exit Day (30 December 2023), at which point they will qualify for full student support as persons with protected rights who meet the 3-year residence requirement in the UK. We will ask all institutions to contact us if they have not assessed any students with protected rights who have been living in the UK for less than 3 years as home fee students, so that further corrective action may be taken.”
Scottish Government officials have also agreed to bring forward amending legislation.
Following a Monitoring and Compliance period with the Scottish Government, the IMA has now concluded that the actions taken by the Scottish Government will resolve the potential systemic issues identified.
Should the IMA receive any further intelligence or complaints regarding this issue in the future, further enquires may be made with the relevant public authority, wherever necessary.
Any citizen experiencing difficulties in exercising their rights is encouraged to report a complaint through the IMA Portal.