The Education (Student Fees and Support) (Amendment) (No.2) Regulations (Northern Ireland) 2021

Amendment of Schedule 1

16.—(1) Schedule 1(1) is amended as follows—

(2) in paragraph 1 (interpretation)—

(a) in sub-paragraph (1)—

(i) before the definition of “academic year”, insert—

““the 2020 Citizens’ Rights Regulations” means the Citizens’ Rights (Application Deadline and Temporary Protection) (EU Exit) Regulations 2020;”;

(ii) in the definition of “EC national” for “EC” substitute “EU”;

(iii) in the definition of “family member”—

(aa) in paragraph (a), for “or an EEA self-employed person” substitute “, an EEA self-employed person, or a relevant person of Northern Ireland who is treated as an EEA migrant worker or an EEA self-employed person by virtue of paragraph 6A(3)”;

(bb) in paragraph (c), for “EC” substitute “EU” and after “Directive 2004/38”, insert “or, for the purposes of paragraph 9ZA, in relation to a relevant person of Northern Ireland who would fall within article 7(1)(c) of Directive 2004/38 if that person were an EU national or solely an EU national”;

(cc) in paragraph (d), for “EC” substitute “EU” and after “Directive 2004/38”, insert “or, for the purposes of paragraph 9ZA, in relation to a relevant person of Northern Ireland who would fall within article 7(1)(b) of Directive 2004/38 if that person were an EU national or solely an EU national”;

(dd) in paragraph (e), for “paragraph 9” substitute “paragraphs 9, 9ZB, 9ZC and 9ZD”;

(iv) after the definition of “person granted stateless leave”, insert—

““person with protected rights” means—

(a)

a person within the personal scope of the citizens’ rights provisions who—

(i)

has leave to enter or remain in the United Kingdom granted by virtue of residence scheme immigration rules;

(ii)

is an Irish citizen who, pursuant to section 3ZA of the Immigration Act 1971, does not require leave to enter or remain in the United Kingdom; or

(iii)

is an applicant for the purposes of regulation 4 of the 2020 Citizens’ Rights Regulations where the relevant period has not expired; or

(b)

a family member of a relevant person of Northern Ireland for the purposes of residence scheme immigration rules, where that family member has leave to enter or remain in the United Kingdom granted by virtue of residence scheme immigration rules;”

(v) after the definition of “refugee”, insert—

“relevant period” has the meaning given by regulation 4 of the 2020 Citizens’ Rights Regulations;”

“relevant person of Northern Ireland” has the meaning given by residence scheme immigration rules;”;

(vi) omit the definition of “right of permanent residence”;

(vii) after the definition of “Turkish worker”, insert—

““United Kingdom national” has the meaning given by Article 2(d) of the EU withdrawal agreement;”;

(b) after sub-paragraph (1), insert—

“(1A) For the purposes of this Schedule, a reference to a “Member State” or “State” in Article 7 of Directive 2004/38 is to be read as including the United Kingdom.

(1B) For the purposes of this Schedule, a person is within the personal scope of the citizens’ rights provisions if that person falls within—

(a) Article 10 (personal scope) of the EU withdrawal agreement;

(b) Article 9 (personal scope) of the EEA EFTA separation agreement; or

(c) Article 10 (personal scope) of the Swiss citizens’ rights agreement.”;

(3) in paragraph 2(1) (persons who are settled in the United Kingdom), for paragraph (a) substitute—

“(a) is settled in the United Kingdom, and does not fall within paragraph 3;”;

(4) after paragraph 2, insert—

“2A.— (1) A person—

(a) who is a United Kingdom national or an Irish citizen on the first day of the first academic year of the course, and does not fall within paragraph 3 of the Schedule;

(b) who is undertaking the course in Northern Ireland;

(c) who has been ordinarily resident in the territory comprising the United Kingdom, Gibraltar, EEA and Switzerland (the relevant territory) throughout the three-year period preceding the first day of the first academic year of the course; and

(d) subject to sub-paragraph (2), whose ordinary residence in the relevant territory has not during any part of the period referred to in paragraph (c) been wholly or mainly for the purpose of receiving full-time education.

(2) Paragraph (d) of sub-paragraph (1) does not apply to a person who is treated as being ordinarily resident in the relevant territory in accordance with paragraph 1(4).”;

(5) in paragraph 3—

(a) number the existing text as sub-paragraph (1);

(b) for sub-paragraph (1)(a) as so renumbered substitute—

“(a) meets one of the following conditions on the first day of an academic year of the course—

(i) the person is within the personal scope of the citizens’ rights provisions and is settled in the United Kingdom by virtue of the grant of indefinite leave to enter or remain under residence scheme immigration rules;

(ii) the person—

(aa) is within the personal scope of the citizens’ rights provisions;

(bb) is an Irish citizen settled in the United Kingdom who pursuant to section 3ZA of the Immigration Act 1971, does not require leave to enter or remain in the United Kingdom; and

(cc) would meet the eligibility requirements for indefinite leave to enter or remain in the United Kingdom granted by virtue of residence scheme immigration rules if that person were to make an application for such leave;

(iii) the person—

(aa) is within the personal scope of the citizens’ rights provisions;

(bb) is an applicant for the purposes of regulation 4 of the 2020 Citizens’ Rights Regulations; and

(cc) has, or is treated as having, a right of permanent residence for the purposes of the Immigration (European Economic Area) Regulations 2016, as those Regulations continue to have effect by virtue of the 2020 Citizens’ Rights Regulations in relation to that person during the relevant period; or

(iv) the person is a family member of a relevant person of Northern Ireland for the purposes of residence scheme immigration rules, where that family member is settled in the United Kingdom by virtue of the grant of indefinite leave to enter or remain under residence scheme immigration rules;”;

(c) after sub-paragraph (1), insert—

“(2) For the purposes of sub-paragraph (1)(a)(ii)(cc), “eligibility requirements for indefinite leave to enter or remain in the United Kingdom granted by virtue of residence scheme immigration rules” means the eligibility requirements for such leave in accordance with paragraph EU11 of Appendix EU to the immigration rules (as defined in section 33(1) of the Immigration Act 1971).”;

(6) after paragraph 6 (workers, employed persons, self-employed persons and their family members), insert—

“6A.— (1) A person with protected rights or a frontier worker within the meaning of regulation 3 of the Citizens’ Rights (Frontier Workers) (EU Exit) Regulations 2020, who—

(a) is—

(i) an EEA migrant worker or an EEA self-employed person;

(ii) a Swiss employed person or a Swiss self-employed person;

(iii) a family member of a person mentioned in sub-paragraph (i) or (ii);

(iv) an EEA frontier worker or an EEA frontier self-employed person;

(v) a Swiss frontier employed person or a Swiss frontier self-employed person; or

(vi) a family member of a person mentioned in sub-paragraph (iv) or (v);

(b) subject to sub-paragraph (2), is ordinarily resident in the United Kingdom on the first day of the first academic year of the course; and

(c) has been ordinarily resident in the territory comprising the United Kingdom, the European Economic Area, Switzerland and the overseas territories throughout the three-year period preceding the first day of the first academic year of the course.

(2) Paragraph (b) of sub-paragraph (1) does not apply where the person applying for support falls within paragraph (a)(iv), (v) or (vi) of sub-paragraph (1).

(3) In this paragraph, a description of a person in sub-paragraph(1)(a)(i) is to be read as if it includes a relevant person of Northern Ireland who would, if that person were an EEA national or solely an EEA national, be an EEA migrant worker or an EEA self-employed person.

(4) For the purposes of paragraph 1(a)(iii) and (vi), an Irish citizen family member is not required to be living in the United Kingdom on IP completion day.

6B.— (1) A person who—

(a) is—

(i) an Irish citizen migrant worker or an Irish citizen self-employed person;

(ii) a family member of a person mentioned in sub-paragraph (i);

(iii) an Irish citizen frontier worker or an Irish citizen frontier self-employed person; or

(iv) a family member of a person mentioned in sub-paragraph (iii);

(b) subject to sub-paragraph (2), is ordinarily resident in Northern Ireland on the first day of the first academic year of the course; and

(c) has been ordinarily resident in the territory comprising the United Kingdom, Gibraltar, the European Economic Area and Switzerland throughout the three-year period preceding the first day of the first academic year of the course.

(2) Paragraph (b) of sub-paragraph (1) does not apply where the person applying for support falls within paragraph (a)(iii) or (iv) of sub-paragraph (1).”;

(7) after paragraph 7, insert—

“7A.— (1) A person with protected rights who—

(a) is ordinarily resident in the United Kingdom on the first day of the first academic year of the course;

(b) has been ordinarily resident in the territory comprising the United Kingdom, the European Economic Area, Switzerland and the overseas territories throughout the three-year period preceding the first day of the first academic year of the course; and

(c) is entitled to support by virtue of Article 10 of Regulation (EU) No. 492/2011 of the European Parliament and of the Council of 5 April 2011 on freedom of movement for workers within the Union (“the Workers Regulation”), as it had effect immediately before IP completion day, as extended by the EEA Agreement, as it had effect immediately before IP completion day.

(2) For the purposes of sub-paragraph (1)(c), in Article 10 of the Workers Regulation—

(a) the reference to a “national of a Member State” is to be read as including a relevant person of Northern Ireland; and

(b) the reference to “another Member State” is to be read as including the United Kingdom, and the references to “that State” construed accordingly.”;

(8) after paragraph 8 (persons who are settled in the United Kingdom and have exercised a right of residence elsewhere), insert—

“8A.— (1) A person who—

(a) is settled in the United Kingdom;

(b) was ordinarily resident in the United Kingdom and settled in the United Kingdom immediately before leaving the United Kingdom and who has exercised a right of residence before IP completion day;

(c) was ordinarily resident immediately before IP completion day—

(i) in the territory comprising the European Economic Area, Switzerland and the overseas territories; or

(ii) in the United Kingdom, where that ordinary residence began after 31st December 2017 immediately following a period of ordinary residence in the territory comprising the European Economic Area, Switzerland and the overseas territories,

and has remained ordinarily resident in the territory comprising the United Kingdom, the European Economic Area, Switzerland and the overseas territories (the relevant territory) throughout the period beginning on IP completion day and ending immediately before the first day of the first academic year of the course;

(d) is ordinarily resident in the United Kingdom on the day on which the first term of the first academic year actually begins;

(e) has been ordinarily resident in the relevant territory throughout the three-year period preceding the first day of the first academic year of the course; and

(f) in a case where the person’s ordinary residence referred to in paragraph (e) was wholly or mainly for the purposes of receiving full-time education, was ordinarily resident in the territory comprising the United Kingdom, Gibraltar, the European Economic Area and Switzerland immediately before the period of ordinary residence referred to in paragraph (e).

(2) For the purposes of this paragraph, a person has exercised a right of residence if that person is a United Kingdom national, a family member of a United Kingdom national for the purposes of Article 7 of Directive 2004/38 (or corresponding purposes under the EEA Agreement or Swiss Agreement) or a person who had the right of permanent residence who in each case has exercised a right under Article 7 of Directive 2004/38 or any equivalent right under the EEA Agreement or Swiss Agreement in a state other than the United Kingdom or, in the case of a person who is settled in the United Kingdom and had the right of permanent residence, if the person has gone to the state within the territory comprising the European Economic Area and Switzerland of which the person is a national or of which the person in relation to whom the person is a family member is a national.

(3) For the purposes of sub-paragraph (2) a person had the right of permanent residence if they had a right which arose under Directive 2004/38 to reside permanently in the United Kingdom without restriction.”;

(9) in the heading to paragraph 9 substitute “(EC nationals)” with “EU nationals etc.”;

(10) in paragraph 9(1)(a)(i) substitute “EC” with “EU”;

(11) after paragraph 9 (EC nationals etc.), insert—

“9ZA.— (1) A person with protected rights—

(a) who is —

(i) an EU national on the first day of the first academic year of the course;

(ii) a family member of a person mentioned in sub-paragraph (i); or

(iii) a family member of a relevant person of Northern Ireland;

(b) who is undertaking the course in Northern Ireland;

(c) who, subject to sub-paragraph (2), has been ordinarily resident in the territory comprising the United Kingdom, the European Economic Area, Switzerland and the overseas territories (relevant territory) throughout the three-year period preceding the first day of the first academic year of the course; and

(d) subject to sub-paragraph (3), whose ordinary residence in the relevant territory has not during any part of the period referred to in paragraph (c) been wholly or mainly for the purpose of receiving full-time education.

(2) Paragraph (c) of sub-paragraph (1) does not apply to a family member of a person who—

(a) is an EU national or a relevant person of Northern Ireland; and

(b) has been ordinarily resident in the relevant territory throughout the three-year period preceding the first day of the first academic year of the course.

(3) Paragraph (d) of sub-paragraph (1) does not apply to a person who is treated as being ordinarily resident in the relevant territory in accordance with paragraph 1(3).

United Kingdom nationals

9ZB.— (1) A person—

(a) who is—

(i) a United Kingdom national on the first day of an academic year of the course; or

(ii) a family member of a person mentioned in sub-paragraph (i);

(b) who was ordinarily resident immediately before IP completion day—

(i) in the territory comprising the European Economic Area, Switzerland and the EU overseas territories; or

(ii) in the United Kingdom, where that ordinary residence began after 31st December 2017 immediately following a period of ordinary residence in the territory comprising the European Economic Area, Switzerland and the EU overseas territories,

and has remained ordinarily resident in the territory comprising the United Kingdom, the European Economic Area, Switzerland and the EU overseas territories (the relevant territory) throughout the period beginning on IP completion day and ending immediately before the first day of the first academic year of the course;

(c) who is undertaking the course in Northern Ireland;

(d) who, subject to sub-paragraph (2), has been ordinarily resident in the relevant territory throughout the three-year period preceding the first day of the first academic year of the course; and

(e) subject to sub-paragraph (3), whose ordinary residence in the relevant territory has not during any part of the period referred to in paragraph (d) been wholly or mainly for the purpose of receiving full-time education.

(2) Paragraph (d) of sub-paragraph (1) does not apply to the family member of a United Kingdom national, where that United Kingdom national—

(a) had, before IP completion day, exercised a right to reside in the territory of a Member State under Article 7(1) of Directive 2004/38; and

(b) has been ordinarily resident in the relevant territory throughout the three-year period preceding the first day of the first academic year of the course.

(3) Paragraph (e) of sub-paragraph (1) does not apply to a person who is treated as being ordinarily resident in the relevant territory in accordance with paragraph 1(3).

(4) Where a person (“P”) falls within sub-paragraph (1)(a)(ii), the person in relation to whom P is a family member must also meet the requirements of sub-paragraphs (1)(b) and (d).

(5) In this paragraph, “EU overseas territories” means Aruba; Faroe Islands; French Polynesia; French Southern and Antarctic Territories; Mayotte; Greenland; Netherlands Antilles (Bonaire, Curaçao, Saba, Sint Eustatius, Sint Maarten); St Barthélemy; St Pierre et Miquelon; the Territory of New Caledonia and Dependencies and Wallis and Futuna.

9ZC.— (1) A person—

(a) who is a family member of a person who is a United Kingdom national on the first day of the first academic year of the course;

(b) who is undertaking the course in Northern Ireland;

(c) who has been ordinarily resident in the territory comprising the United Kingdom and Islands throughout the three-year period preceding the first day of the first academic year of the course; and

(d) subject to sub-paragraph (2), whose ordinary residence in the United Kingdom and Islands has not during any part of the period referred to in paragraph (c) been wholly or mainly for the purpose of receiving full-time education.

(2) Paragraph (d) of sub-paragraph (1) does not apply to a person who is treated as being ordinarily resident in the territory comprising the United Kingdom and Islands in accordance with paragraph 1(3).

Persons resident in Gibraltar

9ZD.— (1) A person—

(a) who is—

(i) a United Kingdom national who has resident status in Gibraltar granted by the Government of Gibraltar;

(ii) a family member of a United Kingdom national, where that family member has resident status in Gibraltar granted by the Government of Gibraltar;

(iii) an EU national who has a right of residence in Gibraltar arising under the EU withdrawal agreement; or

(iv) a family member of an EU national, where that family member has a right of residence in Gibraltar arising under the EU withdrawal agreement;

(b) who is undertaking the course in Northern Ireland;

(c) who, subject to sub-paragraph (2), has been ordinarily resident in the territory comprising the United Kingdom, the European Economic Area, Switzerland and the overseas territories (the relevant territory) throughout the three-year period preceding the first day of the first academic year of the course; and

(d) subject to sub-paragraph (3), whose ordinary residence in the relevant territory has not during any part of the period referred to in paragraph (c) been wholly or mainly for the purpose of receiving full-time education.

(2) Paragraph (c) of sub-paragraph (1) does not apply to a family member of a person who—

(a) is an EU national or a relevant person of Northern Ireland; and

(b) has been ordinarily resident in the relevant territory throughout the three-year period preceding the first day of the first academic year of the course.

(3) Paragraph (d) of sub-paragraph (1) does not apply to a person who is treated as being ordinarily resident in the relevant territory in accordance with paragraph 1(3).”;

(12) before paragraph 9A, insert the heading “EU nationals ordinarily resident in the United Kingdom and Islands”;

(13) in paragraph 9A(1)(a) substitute “EC” with “EU” and omit sub-paragraph (2);

(14) after paragraph 9A, insert—

“9B.— (1) A person with protected rights who—

(a) is an EU national on the first day of the first academic year of the course;

(b) is ordinarily resident in the United Kingdom on the first day of the first academic year of the course;

(c) has been ordinarily resident in the United Kingdom and Islands throughout the three-year period immediately preceding the first day of the first academic year of the course; and

(d) in a case where the person’s ordinary residence referred to in paragraph (c) was wholly or mainly for the purpose of receiving full-time education, was ordinarily resident in the territory comprising the United Kingdom, the European Economic Area, Switzerland and the EU overseas territories immediately prior to the period of ordinary residence referred to in paragraph (c);

(2) For the purposes of this paragraph, an Irish citizen is not required to be living in the United Kingdom on IP completion day.”;

(15) after paragraph 10 (children of Swiss nationals), insert—

“10A.   A person with protected rights who—

(a) is the child of a Swiss national who is entitled to support in the United Kingdom by virtue of Article 18(2) of the Swiss citizens’ rights agreement;

(b) is ordinarily resident in the United Kingdom on the first day of the first academic year of the course;

(c) has been ordinarily resident in the territory comprising the United Kingdom, the European Economic Area, Switzerland and the overseas territories throughout the three-year period preceding the first day of the first academic year of the course; and

(d) in a case where the person’s ordinary residence referred to in paragraph (c) was wholly or mainly for the purpose of receiving full-time education, was ordinarily resident in the territory comprising the United Kingdom, Gibraltar, the European Economic Area and Switzerland immediately prior to the period of ordinary residence referred to in paragraph (c).”;

(16) after paragraph 11 (children of Turkish workers), insert—

“12.   A person who—

(a) is the child of a Turkish worker (“T”), where T was ordinarily resident in the United Kingdom immediately before IP completion day;

(b) immediately before IP completion day—

(i) was the child of T; and

(ii) was ordinarily resident in the United Kingdom;

(c) is ordinarily resident in the United Kingdom on the first day of the first academic year of the course; and

(d) has been ordinarily resident in the territory comprising the United Kingdom, the European Economic Area, Switzerland, Turkey and the overseas territories throughout the three-year period preceding the first day of the first academic year of the course.”.

(17) renumber the original paragraph “12” (long residence) as “13”.

(1)

Schedule 1 was amended by Order 2011/1043, S.Rs 2007 No. 375, 2011 No. 70, 2013 No. 37 and 2019 No. 35