Date Legislation considered: 16 July 2022
Date Legislation in Force: 01 August 2022
Potential Right(s) Affected: Residence/Discrimination/Equal Treatment
What does the legislation do?
This rule makes changes to the Further Education (Student Support) (Eligibility) Regulations (Northern Ireland) 2012 (‘the principal rule’). The Explanatory Memorandum states that one of the effects of this rule is to:-
“(a) remove any redundant provisions for academic year 2022/23 following the end of the Grace Period for the EU Settlement Scheme;
(b) clarify the position of Citizens’ Rights in relation to late applicants and joining family members;”
Under the terms of the Withdrawal Agreement and EEA EFTA Separation Agreement (“the Agreements”) the UK Government chose to implement a constitutive scheme which meant that citizens wishing to enjoy the rights laid out in the Agreements had to submit an application. The Agreements enabled the UK Government to impose a deadline for such applications. The UK Government chose the 30 June 2021 as the deadline in the UK.
During the ‘Grace Period’, i.e. the sixth month period from 1st January 2021 until 30 June 2021, the Agreements provided that EU citizens and EEA EFTA citizens (and their family members) 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 (“the EUSS”) had their rights protected*. In accordance with the Agreements, the principal 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
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 the Agreements* while their application is being determined. This was recognised in an announcement made by the UK Government’s Home Office on 6 August 2021.
This rule amends the principal rule 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.
To reflect this, the rule reflects the protection offered under the Agreements in the additional text added to the definition of “person with protected rights” and by the additions made to the category of persons who are settled in the UK.
As for joining family members, the Agreements provide for a three-month grace period where they are able to enjoy the rights contained in the Agreements. This three-month period runs from the family member’s arrival in the UK. The rule makes changes to reflect the rights of these joining family members, again by adding text to the definition of a “person with protected rights”.
The other key provisions do not impact upon the IMA remit and therefore are not considered in this report.
Whilst this rule clarifies the position moving forward, the legislation only came into force on 1st August 2022. It is therefore not clear whether late applicants/joining family members were eligible for further education support immediately following the end of the ‘Grace Period’. We asked officials at the Northern Ireland Executive to confirm the position. They responded that “ No reports have been received that the delay in making the Regulations had any practical impact on the cohort which has been identified”
Guidance* issued by the Education Authority does not appear to have been updated to reflect the position of pending applicants, late applicants or joining family members. Under the ‘Residence’ heading it states that “an EU National who has been granted residency under the EU Settlement Scheme and been ordinarily resident in the UK, Gibraltar, European Economic Area (EEA) and Switzerland three years prior to the first day of the course” will be eligible if they meet the requirements on the first day of the first academic year of their course.
Officials at the Northern Ireland Executive have confirmed that “ The Education Authority (responsible for the administration for FE Grants) has confirmed that the FE Grants booklet will be updated with immediate effect to reflect the position for pending applicants to the EUSS, late applicants or to joining family members. Some of the printed booklets are already in circulation but they will print an amendment page to be included in the remaining booklets. They will also send an amendment page to all the colleges for them to include it in any booklets they have. This will also be done as soon as possible.”
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 on the Website.
*Article 18(2) Withdrawal Agreement and Article 17(2) EEA EFTA Separation Agreement
*See Article 18(2) and (3) of the Withdrawal Agreement and Article 17(2) and (3) of the EEA EFTA Separation Agreement.
*Accessed on 16.07.22