The Agriculture (Student fees) Regulations (Northern Ireland) 2022

Regulations 11, 14 and 17

SCHEDULE QUALIFYING PERSONS

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

“Directive 2004/38” means Directive 2004/38/EC of the European Parliament and of the Council of 29th 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;

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

“EEA EFTA separation agreement” has the meaning given by section 39(1) of the European Union (Withdrawal Agreement) Act 2020(4);

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

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

“EU withdrawal agreement” means the withdrawal agreement within the meaning of the European Union (Withdrawal Agreement) Act 2020(5) (see section 39(1) and (6) of that Act);

“family member” means in relation to a United Kingdom national and a Republic of Ireland national—

(i)

their spouse or civil partner; or

(ii)

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

(aa)

under the age of 21; or

(bb)

dependants of their or of their spouse or civil partner;

“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; Gibraltar; Greenland; Montserrat; Mayotte; Montserrat; Netherlands Antilles (Bonaire, Curaçao, Saba, Sint Eustatius and Sint Maarten); Pitcairn, Henderson, Ducie & Oeno Islands; South Georgia and the South Sandwich Islands; St-Barthélemy; St Helena and Dependencies (Ascension Island and Tristan de Cunha); St Pierre et Miquelon; the Territory of New Calendonia 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 they are considered not to qualify for recognition as a refugee, it is thought right to allow them to enter or remain in the United Kingdom;

(b)

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

(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)(6)

(d)

who has been ordinarily resident in the United Kingdom and the Islands throughout the period since they were 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 28th July 1951(7) as extended by the Protocol thereto which entered into force on 4th October 1967(8);

“residence scheme immigration rules” has the meaning given by section 17(1) of the European Union (Withdrawal Agreement) Act 2020(9);

“right of permanent residence”, unless otherwise indicated, means, in relation to a person (“A”), a right to reside in the United Kingdom permanently without restriction which arises under residence scheme immigration rules, but only where, had the facts pertaining to the determination of A’s right to reside fallen to be considered immediately before IP completion day;

“settled” has the meaning given by section 33(2A) of the Immigration Act 1971(10)

“specified British overseas territories” means Anguilla; Bermuda; British Antarctic Territory; British Indian Ocean Territory; British Virgin Islands; Cayman Islands; Falkland Islands; Gibraltar; Montserrat; Pitcairn, Henderson, Ducie and Oeno Islands; South Georgia and the South Sandwich Islands; St Helena and Dependencies (Ascension Island and Tristan da Cunha; and Turks and Caicos Islands;

“Swiss citizens’ rights agreement” has the meaning given by section 39(1) of the European Union (Withdrawal Agreement) Act 2020(11).

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

(3) For the purposes of this Schedule, a person is not to be treated as ordinarily resident in a place unless that person lawfully resides in that place.

(4) For the purposes of this Schedule, a person who is ordinarily resident in the United Kingdom as a result of having moved from the Islands for the purpose of undertaking a higher education course is to be considered to be ordinarily resident in the Islands.

(5) For the purposes of this Schedule, a person who is ordinarily resident in Northern Ireland as a result of having moved from Great Britain and the Islands for the purpose of undertaking a higher education course is to be considered as ordinarily resident in Great Britain.

Persons settled in the United Kingdom and ordinarily resident in Northern Ireland

2.—(1) A person falls within this paragraph where—

(a) they are settled in the United Kingdom;

(b) they are ordinarily resident in Northern Ireland;

(c) they have been ordinarily resident in Northern Ireland throughout the three-year period preceding the first day of the first academic year of the higher education course; and

(d) subject to sub-paragraph (2), their residence in Northern Ireland 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 Northern Ireland in accordance with paragraph 3.

3.  A person who—

(a) meets one of the following conditions—

(i) the person is settled in the United Kingdom by reason of having acquired the right of permanent residence on the first day of an academic year of the higher education course; or

(ii) the person falls within Article 18(2) or (3) of the EU withdrawal agreement, Article 17(2) or (3) of the EEA EFTA separation agreement, or Article 16(2) or (3) of the Swiss citizens’ rights agreement, but only where that person would have acquired the right to reside permanently in the United Kingdom without restriction under Directive 2004/38 as it had effect immediately before IP completion day had the facts pertaining to that person’s right to reside fallen to be considered immediately before IP completion day;

(b) is ordinarily resident in Northern Ireland on the first day of the first academic year of the higher education course;

(c) has been ordinarily resident in Northern Ireland throughout the three-year period preceding the first day of the first academic year of the higher education course; and

(d) in a case where their residence referred to in paragraph (c) was—

(i) wholly or mainly for the purpose of receiving full-time education;

(ii) ordinarily resident in the territory comprising the European Economic Area, Switzerland and the overseas territories; and

(iii) not ordinarily resident in Great Britain, the Islands or specified British overseas territories,

immediately before the period of residence referred to in paragraph (c).

Persons settled in the United Kingdom and ordinarily resident in Great Britain

4.—(1) A person falls within this paragraph where—

(a) they are settled in the United Kingdom;

(b) they are ordinarily resident in Great Britain and the Islands;

(c) they have been ordinarily resident in Great Britain and the Islands throughout the three-year period preceding the first day of the first academic year of the higher education course; and

(d) subject to sub-paragraph (2), their residence in Great Britain and the 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 Great Britain and the Islands in accordance with paragraph 5.

5.  A person who—

(a) is settled in the United Kingdom by reason of having acquired the right of permanent residence on the first day of an academic year of the higher education course;

(b) is ordinarily resident in Great Britain and the Islands on the first day of the first academic year of the higher education course;

(c) has been ordinarily resident in Great Britain and the Islands throughout the three-year period preceding the first day of the first academic year of the higher education course; and

(d) in a case where their residence referred to in paragraph (c) was—

(i) wholly or mainly for the purposes of receiving full-time education;

(ii) ordinarily resident in the territory comprising the European Economic Area, Switzerland and the overseas territories; and

(iii) not ordinarily resident in Great Britain, the Islands or specified British overseas territories,

immediately before the period of residence referred to in paragraph (c).

Persons from Republic of Ireland

6.  A person falls within this paragraph where—

(a) they are a citizen of the Republic of Ireland;

(b) they are ordinarily resident in the Republic of Ireland;

(c) they have been ordinarily resident in the Republic of Ireland throughout the three-year period preceding the first day of the first academic year of the higher education course; and

(d) their residence in the Republic of Ireland 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.

Refugees and their family members

7.—(1) A person falls within the paragraph where they are a person mentioned in paragraph (2), (3) or (4).

(2) A person—

(a) who is a refugee;

(b) who is ordinarily resident in the United Kingdom and the Islands and has not ceased to be so resident since they were recognised as a refugee; and

(c) who is ordinarily resident in the United Kingdom and the Islands on the first day of the first academic year of the higher education course.

(3) A person—

(a) who is a spouse or civil partner of a refugee;

(b) who was the spouse or civil partner of the refugee on the date on which the refugee made their application for asylum;

(c) who is ordinarily resident in the United Kingdom and the Islands and has not ceased to be so resident since they were given leave to enter or remain in the United Kingdom; and

(d) who is ordinarily resident in the United Kingdom and the Islands on the first day of the first academic year of the higher education course.

(4) A person—

(a) who is the child of a refugee or the child of the spouse or civil partner of a refugee;

(b) who, on the date on which the refugee made their application for asylum, was the child of the refugee or the child of a person who was the spouse or civil partner of the refugee on that date;

(c) who was under 18 on the date on which the refugee made their application for asylum;

(d) who is ordinarily resident in the United Kingdom and the Islands and has not ceased to be so resident since they were given leave to remain in the United Kingdom; and

(e) who is ordinarily resident in the United Kingdom and the Islands on the first day of the first academic year of the higher education course.

Persons who are settled in the United Kingdom and have exercised a right of residence elsewhere

8.—(1) A person falls within this paragraph where they—

(a) are settled in the United Kingdom;

(b) have left the United Kingdom and exercised a right of residence elsewhere before IP completion day after having been settled in the United Kingdom;

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

(d) have been ordinarily resident in 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 higher education course; and

(e) in a case where their ordinary residence referred to in paragraph (d) was—

(i) wholly or mainly for the purposes of receiving full-time education; and

(ii) 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 (d).

(2) For the purposes of this paragraph, a person has exercised a right of residence if—

(a) they are a United Kingdom national;

(b) they are a family 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);

(c) they are a person who had a 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

(d) in the case of a person who is settled in the United Kingdom and had a right of permanent residence, if they have gone to the state within the territory comprising the European Economic Area and Switzerland of which they are a national or of which the person in relation to whom they are a family member is a national.

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

Ordinarily resident

9.—(1) A person is to be treated as ordinarily resident in Northern Ireland, the Republic of Ireland or Great Britain and the Islands if they would have been so resident but for the fact—

(a) they;

(b) their spouse or civil partner;

(c) their parent; or

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

is or was temporarily employed outside the area in question.

(2) For the purpose of sub-paragraph (1), temporary employment includes—

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

(b) in the case of members of the regular naval, military or air forces of the Republic of Ireland, any period which they serve outside the Republic of Ireland, as members of such forces.

(3) For the purposes of this Schedule, a person is to be treated as ordinarily resident in Northern Ireland, the Republic of Ireland or Great Britain and the Islands if they would have been so resident but for the fact that—

(a) they;

(b) their spouse or civil partner;

(c) their parent; or

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

is or was temporarily receiving full-time education outside the area in question.

(1)

OJ L158, 30.4.2004, p77-123

(2)

Cmnd. 2073

(3)

Cmnd. 2183

(4)

2020 c.1.

(5)

2020 c.1.

(6)

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

(7)

Cmnd. 9171

(8)

Cmnd. 3906

(9)

2020 c.1.

(10)

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

(11)

2020 c.1.