Date Legislation considered: 14 March 2023
Date Legislation in Force: 16 February 2023
Potential Right(s) Affected: Residence/Discrimination/Equal Treatment
What does the legislation do?
The Explanatory Memorandum states that the purpose of this legislation is to make amendments “to the legislation governing funding for further education students and funding for higher education undergraduate and postgraduate students in England.”
This report only considers those key changes that fall within the remit of the IMA.
The key provisions which relate to EU and EEA EFTA citizens are provided for under Part 4 of the Regulations. They relate to termination of eligibility for postgraduate master’s and doctoral students who lose their immigration status under the EU Settlement Scheme.
The Regulations amend two sets of student finance regulations as follows.
- Regulation 3 of The Education (Postgraduate Master’s Degree Loans) Regulations 2016 which provides for the making of loans to eligible students in connection with designated postgraduate master’s degree courses beginning on or after 1st August 2016.
- Regulation 3 of The Education (Postgraduate Doctoral Degree Loans and the Education (Student Loans) (Repayment) (Amendment) (No. 2) etc.) Regulations 2018 which provides for the making of loans to eligible students in connection with designated postgraduate doctoral degree courses beginning on or after 1st August 2018.
The Amendments to both set of regulations make it clear that if a postgraduate master’s or doctoral student who has rights under the Agreements loses their limited leave to remain under Appendix EU (pre-settled status) and is not granted further leave under Appendix EU they will lose their entitlement to support.
The Explanatory Memorandum states that this is to bring postgraduate student support into line with undergraduate support. Unlike undergraduate courses, where students must apply for funding annually, the postgraduate courses require a single application. The Explanatory Memorandum states that therefore “there is a potential risk that as student could apply for and be granted, a doctoral degree loan or a master’s degree loan and then lose an EU exit or a protection -based status while continuing to receive funding for the course duration”.
Whilst the legislation came into force on 16 February 2023, the changes will only apply to new students starting postgraduate master’s degree or doctoral degree courses in the 2023/24 academic year.
The IMA raises the following issues:-
It is unclear whether unsuccessful applicants to the EUSS or joining family members within their first three months in the UK are covered by the amendments. EU and EEA EFTA citizens who are in receipt of a Certificate of Application, have deemed rights as a result of Article 18(3) of the Withdrawal Agreement and Article 17(3) of the EEA EFTA Separation Agreement. Joining family members have rights as a result of Article 18(2) of the Withdrawal Agreement and Article 17(2) of the EEA EFTA Separation Agreement. Amendments made by regulations 134(2) and 136(2) refer to “persons with protected rights” which includes applicants to the EUSS and joining family members within their first three months in the UK. The amendments however only appear as drafted to apply to those “persons with protected rights” who have limited leave to remain (pre-settled status).
On 21st December 2022, the High Court handed down judgment in R (Independent Monitoring Authority for the Citizens’ rights Agreements) v Secretary of State for the Home Department  EWHC 3274 (Admin) following a challenge by the IMA to the arrangements made by the UK in implementing its obligations under the Agreements. In particular, the IMA challenged the automatic loss of rights where citizens with pre-settled status failed to upgrade to settled status.
Granting the IMA’s claim for judicial review, the High Court found that:-
- The Home Office had imposed an unlawful condition on the residence rights contained within the Agreements, namely the requirement for a second application. There were very limited circumstances in which an individual could lose residence rights, such as serious criminal conduct, and failure to make a further application was not one of those circumstances. The automatic loss of rights was therefore unlawful contrary to the Agreements.
The right to permanent residence arises automatically by operation of law once the citizen has reached 5 years of continuous residence. A further application for that right to arise was not necessary, and so the Home Office in requiring a second application for that right to arise was acting unlawfully contrary to the Agreements.
Whilst it is currently unclear how the Home Office intends to implement the judgment; the effect of the Regulations is that those persons whose pre-settled status expires and who do not make an application for settled status will become ineligible and their loan will be terminated. In some cases this will represent a breach of the Agreements. The IMA intends to keep the Regulations under review pending clarity being received from the Home Office on any plans for re-designing the EUSS.
In discussion with officials at DFE, they have confirmed as follows:-
“The termination provisions were set out in The Education (Student Fees, Awards and Support) (Amendment) Regulations 2021 to give effect to the policy that persons with citizens’ rights who lose status under the EU Settlement Scheme before the start of an academic year in the case of undergraduates, or before the start of their course in the case of postgraduate or FE learners would no longer be eligible for student support.
Differences in operational procedures for Master’s and Doctoral loans meant that those with rights protected by the Withdrawal Agreements would be assessed only at the start of the course rather than at the start of each academic year (which may not be the same date). This has now been rectified and these regulations have therefore been amended to align with the undergraduate termination provisions.
All persons must have a valid immigration status to be eligible for support. This includes EUSS indefinite or limited leave to enter or remain, as well as those with temporary protection status afforded to late applicants, joining family members in the first 3 months of arrival in the UK and those who have appealed or applied for an administrative review. They also must meet the relevant residence requirements in order to access support.
The Student Loans Company uses immigration status, as determined by the Home Office, when assessing eligibility for student support. We are in discussion with the Home Office on any changes to these processes that may be necessary following the R (Independent Monitoring Authority for the Citizens’ rights Agreements) v Secretary of State for the Home Department  EWHC 3274 (Admin) judgment.”