The Student Fees (Qualifying Courses and Persons) Regulations (Northern Ireland) 2007

1.—(1) For the purposes of this Schedule—

“academic year” means the period of twelve months beginning on 1^st January, 1^st April, 1^st July or 1^st September of the calendar year in which the academic year of the course in question begins according to whether that academic year begins on or after 1^st January and before 1^st April, on or after 1^st April and before 1^st July, on or after 1^st July and before 1^st August or on or after 1^st August and on or before 31^st December, respectively;

“Directive 2004/38” means Directive 2004/38/EC of the European Parliament and of the Council of 29^th April 2004(1) on the rights of citizens of the Union and their family members to move and reside freely in the territory of the Member States;

“EC national” means a national of a Member State of the European Community;

“EEA Agreement” means the Agreement on the European Economic Area signed at Oporto on 2^nd May 1992(2) as adjusted by the Protocol signed at Brussels on 17^th March 1993(3);

“EEA frontier self-employed person” means an EEA national who—

(a)

is a self-employed person in the United Kingdom; and

(b)

resides in Switzerland or the territory of an EEA State other than the United Kingdom and returns to his residence in Switzerland or that EEA State daily or at least once a week;

“EEA frontier worker” means an EEA national who—

(a)

is a worker in the United Kingdom; and

(b)

resides in Switzerland or the territory of an EEA State other than the United Kingdom and returns to his residence in Switzerland or that EEA State daily or at least once a week;

“EEA migrant worker” means an EEA national who is a worker, other than an EEA frontier worker, in the United Kingdom;

“EEA national” means a national of an EEA State other than the United Kingdom;

“EEA self-employed person” means an EEA national who is a self-employed person, other than an EEA frontier self-employed person, in the United Kingdom;

“employed person” means an employed person with the meaning of Annex 1 to the Swiss Agreement;

“employment” means full-time or part-time employment;

“European Community” means the territory comprised by the Member States of the European Community as constituted from time to time;

“European Economic Area” means the area comprised by the EEA States;

“family member” means—

(a)

in relation to an EEA frontier worker, an EEA migrant worker, an EEA frontier self-employed person or an EEA self-employed person—

(i)

his spouse or civil partner;

(ii)

his child or the child of his spouse or civil partner; or

(iii)

dependent direct relatives in his ascending line or that of his spouse or civil partner;

(b)

in relation to a Swiss employed person, a Swiss frontier employed person, a Swiss frontier self-employed person or a Swiss self-employed person—

(i)

his spouse or civil partner; or

(ii)

his child or the child of his spouse or civil partner;

(c)

in relation to an EC national who falls within Article 7(1)(c) of Directive 2004/38—

(i)

his spouse or civil partner; or

(ii)

direct descendants of his or of his spouse or civil partner who are—

(aa)

under the age of 21; or

(bb)

dependants of his or his spouse or civil partner;

(d)

in relation to an EC national who falls within Article 7(1)(b) of Directive 2004/38—

(i)

his spouse or civil partner;

(ii)

direct descendants of his or of his spouse or civil partner who are—

(aa)

under the age of 21; or

(bb)

dependants of his or his spouse or civil partner; or

(iii)

dependent direct relatives in his ascending line or that of his spouse or civil partner;

(e)

in relation to a United Kingdom national, for the purposes of paragraph 9—

(i)

his spouse or civil partner; or

(ii)

direct descendants of his or of his spouse or civil partner who are—

(aa)

under the age of 21; or

(bb)

dependants of his or his spouse or civil partner;

“the Islands” means the Channel Islands and the Isle of Man;

“overseas territories” means Anguilla; Aruba; Bermuda; British Antarctic Territory; British Indian Ocean Territory; British Virgin Islands; Cayman Islands; Falkland Islands; Faroe Islands; French Polynesia; French Southern and Antarctic Territories; Mayotte; Greenland; Montserrat; Netherlands Antilles (Bonaire, Curaçao, Saba, Sint Eustatius and Sint Maarten); Pitcairn, Henderson, Ducie & Oeno Islands; South Georgia and the South Sandwich Islands; St Helena and Dependencies (Ascension Island and Tristan de Cunha); St Pierre et Miquelon; the Territory of New Caledonia and Dependencies; Turks and Caicos Islands and Wallis and Futuna;

“person with leave to enter or remain” means a person—

(a)

who has been informed by a person acting under the authority of the Secretary of State for the Home Department that, although he is considered not to qualify for recognition as a refugee, it is thought right to allow him to enter or remain in the United Kingdom;

(b)

who has been granted leave to enter or to remain accordingly; and

(c)

whose period of leave to enter or remain has not expired or has been renewed and the period for which it was renewed has not expired or in respect of whose leave to enter or remain an appeal is pending (within the meaning of section 104 of the Nationality, Immigration and Asylum Act 2002)(4); and

(d)

who has been ordinarily resident in the United Kingdom and Islands throughout the period since he was granted leave to enter or remain;

“refugee” means a person who is recognised by Her Majesty’s government as a refugee within the meaning of the United Nations Convention relating to the Status of Refugees done at Geneva on 28^th July 1951(5) as extended by the Protocol thereto which entered into force on 4^th October 1967(6);

“right of permanent residence” means a right arising under Directive 2004/38 to reside in the United Kingdom permanently without restriction;

“self-employed person” means—

(a)

in relation to an EEA national, a person who is self-employed within the meaning of Article 7 of Directive 2004/38 or the EEA Agreement, as the case may be; or

(b)

in relation to a Swiss national, a person who is a self-employed person within the meaning of Annex 1 to the Swiss Agreement;

“settled” has the meaning given by section 33(2A) of the Immigration Act 1971(7);

“Swiss Agreement” means the Agreement between the European Community and its Member States, of the one part, and the Swiss Confederation, of the other, on the Free Movement of Persons signed at Luxembourg on 21^st June 1999(8) and which came into force on 1^st June 2002;

“Swiss employed person” means a Swiss national who is an employed person, other than a Swiss frontier employed person, in the United Kingdom;

“Swiss frontier employed person” means a Swiss national who—

(a)

is an employed person in the United Kingdom; and

(b)

resides in Switzerland or in the territory of an EEA State other than the United Kingdom and returns to his residence in Switzerland or that EEA State daily or at least once a week;

“Swiss frontier self-employed person” means a Swiss national who—

(a)

is a self-employed person in the United Kingdom; and

(b)

resides in Switzerland or in the territory of an EEA State other than the United Kingdom and returns to his residence in Switzerland or that EEA State daily or at least once a week;

“Swiss self-employed person” means a Swiss national who is a self-employed person, other than a Swiss frontier self-employed person, in the United Kingdom;

“Turkish worker” means a Turkish national who—

(a)

is ordinarily resident in the United Kingdom; and

(b)

is, or has been lawfully employed in the United Kingdom;

“worker” means a worker within the meaning of Article 7 of Directive 2004/38 or the EEA Agreement as the case may be.

(2) For the purposes of this Schedule, “parent” includes a guardian, any other person having parental responsibility for a child and any person having care of a child and “child” is to be construed accordingly.

(3) For the purposes of this Schedule, a person is to be treated as ordinarily resident in the United Kingdom, the United Kingdom and Islands, in the territory comprising the European Economic Area and Switzerland, in the territory comprising the European Economic Area, Switzerland and the overseas territories, or in the territory comprising the European Economic Area, Switzerland and Turkey if he would have been so resident but for the fact that—

(a) he;

(b) his spouse or civil partner;

(c) his parent; or

(d) in the case of a dependent direct relative in the ascending line, his child or child’s spouse or civil partner,

is or was temporarily employed outside the area in question.

(4) For the purposes of paragraph (3), temporary employment includes—

(a) in the case of members of the regular naval, military or air forces of the Crown, any period which they serve outside the United Kingdom as members of such forces;

(b) in the case of members of the regular armed forces of an EEA State or Switzerland, any period which they serve outside the territory comprising the European Economic Area and Switzerland as members of such forces; and

(c) in the case of members of the regular armed forces of Turkey, any period which they serve outside the territory comprising the European Economic Area, Switzerland and Turkey as members of such forces.

(5) For the purposes of this Schedule an area which—

(a) was previously not part of the European Community or the European Economic Area; but

(b) at any time before or after these Regulations come into operation has become part of one or the other or both of these areas,

is to be considered to have always been a part of the European Economic Area.

(1)

OJ L158, 30.4.2004, p77-123

(2)

Cmnd 2073

(3)

Cmnd 2183

(4)

2002 c.41. Section 104 was amended by the Asylum and Immigration (Treatment of Claimants etc) Act 2004 (c.19), section 26 and Schedules 2 and 4, and the Immigration, Asylum and Nationality Act 2006 (c.13), section 9.

(5)

Cmnd. 9171.

(6)

Cmnd. 3906 (out of print; photocopies are available, free of charge, from the Student Support Division, Department for Education and Skills, Mowden Hall, Staindrop Road, Darlington DL3 9BG).

(7)

1971 c.77; section 33(2A) was inserted by paragraph 7 of Schedule 4 to the British Nationality Act 1981 (c.61).

(8)

Cm. 4904.