The Education (Graduate Endowment, Student Fees and Support) (Scotland) Amendment Regulations 2006

Amendment of regulation 2

1.  In regulation 2 (interpretation) –

(a) in sub-paragraph (1) for the definition of “EEA migrant worker”, substitute–

““EEA migrant worker” means an EEA national in the United Kingdom who is a worker within the meaning of article 7 of Directive 2004/38 but who is not an EEA frontier worker;”;

(b) insert the following definitions in alphabetical order in the appropriate places–

““Directive 2004/38” means Directive 2004/38/EC of the European Parliament and of the Council(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 frontier self-employed person” means an EEA national who–

(a)

is a self-employed person (within the meaning of article 7 of Directive 2004/38) in Scotland; and

(b)

resides in Switzerland or the territory of an EEA State other than the United Kingdom and returns to his or her residence in Switzerland or that EEA State, as the case may be, daily or at least once a week;”;

““EEA frontier worker” means an EEA national who–

(a)

is a worker (within the meaning of article 7 of Directive 2004/38) in Scotland; and

(b)

resides in Switzerland or the territory of an EEA State other than the United Kingdom and returns to his or her residence in Switzerland or that EEA State, as the case may be, daily or at least once a week;”;

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

““EEA self-employed person” means an EEA national in the United Kingdom who is a self-employed person within the meaning of article 7 of Directive 2004/38 but who is not an EEA frontier self-employed person;”;

““family member” means–

(a)

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

(i)

his or her spouse or civil partner;

(ii)

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

(iii)

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

(ii)

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

(c)

in relation to a non UK EC national who is not self-sufficient within the meaning of Article 7(1)(b) of Directive 2004/38–

(i)

his or her spouse or civil partner;

(ii)

direct descendants of him or her or of his or her spouse or civil partner who are–

(aa)

under the age of 21;

(bb)

dependants of him or her or his or her spouse or civil partner;

(d)

in relation to a non UK EC national who is self-sufficient within the meaning of Article 7(1)(b) of Directive 2004/38–

(i)

his or her spouse or civil partner;

(ii)

direct descendants of him or her or of his or her spouse or civil partner who are–

(aa)

under the age of 21;

(bb)

dependents of him or her or his or her spouse;

(iii)

dependent direct relatives in his or her as cending line or that of his or her spouse or civil partner; and

(e)

in relation to a United Kingdom national, for the purposes of paragraph 4 of Schedule 1–

(i)

his or her spouse or civil partner;

(ii)

direct descendants of him or her or of his or her spouse or civil partner who are–

(aa)

under the age of 21;

(bb)

dependents of him or her or his or her spouse;

(iii)

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

““non UK EC national” means a person who is a national for the purposes of the Community Treaties of any member state of the European Community other than the United Kingdom;”;

““Swiss employed person” means a Swiss national in the United Kingdom who is an employed person within the meaning of Annex 1 to the Switzerland Agreement , but who is not a Swiss frontier employed person;”;

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

(a)

is an employed person (within the meaning of Annex 1 to the Switzerland Agreement) in Scotland; and

(b)

resides in Switzerland or in the territory of an EEA State other than the United Kingdom and returns to his or her residence in Switzerland or that EEA State, as the case may be, daily or at least once a week;”;

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

(a)

is a self-employed person (within the meaning of Annex 1 to the Switzerland Agreement) in Scotland; and

(b)

resides in Switzerland or in the territory of an EEA State, other than the United Kingdom, and returns to his or her residence in Switzerland or that EEA State, as the case may be, daily or at least once a week;”; and

““Swiss self-employed person” means a Swiss national in the United Kingdom who is a self-employed person within the meaning of Annex 1 to the Switzerland Agreement), but who is not a Swiss frontier self-employed person;”; and

(c) For regulations 2(3) to 2(5)substitute–

“(3) For the purposes of paragraph 1(a) and 8(b) of Schedule 1 , a person shall be treated as ordinarily resident in Scotland on the first day of the first academic year of the course if the Scottish Ministers are satisfied that he or she was not actually resident only because that person, or his or her spouse or civ il partner, or either of his or her parents, his or her guardian or any other person having parental responsibility for him or her, or any person having care of him or her when he or she is a child, or in the case of a dependant relative in the ascending line, his or her child or child’s spouse or civil partner, was temporarily employed outside Scotland.

(4) For the purposes of paragraphs 1(b), 2(1)(b), 3(1)(b), 4(1)(d), 8(c) and 9(b) of Schedule 1, a person shall be treated as having been ordinarily residen t in the area specified and for the period specified in those paragraphs if the Scottish Ministers are satisfied that the person was not actually ordinarily resident in the relevant area for the specified period only because that person, or his or her spo u se or civil partner, or either of his or her parents, his or her guardian or any other person having parental responsibility for him or her, or any person having care of him or her when he or she is a child, or, in the case of a dependant relative in the ascending line, his or her child or child’s spouse or civil partner, was for the time being temporarily employed outside the relevant area.

(5) For the purposes of paragraph 1(a) of Schedule 1 and subject to paragraph (6), a person shall not be treated as b eing ordinarily resident in Scotland on the first day of the first academic year of the course if the Scottish Ministers are satisfied that his or her residence there on that day is in any sense attributable to, or connected with, any period of residence in Scotland within 3 years immediately preceding the first day of the first academic year of the course as respects any part of which its purpose was wholly or mainly that of receiving full-time education.

(6) Paragraph (5) shall not apply to a person who has acquired settled status in the United Kingdom under the Immigration Act 1971 as a result of residence for full-time education which has led to a right of permanent residence arising under Directive 2004/38.

(7) For the purposes of paragraph 1(b) of Schedule 1, a person shall not be treated as having been ordinarily resident in the United Kingdom and Islands for the three year period, if the Scottish Ministers are satisfied that he or she was resident there for any part of that period wholly or mainly for the purpose of receiving full-time education, unless–

(a) the person is treated as ordinarily resident in accordance with paragraph (5); or

(b) the person has acquired settled status in the United Kingdom under the Immigration Act 1971 as a result of residence for full-time education which has led to a right of permanent residence arising under Directive 2004/38, in which case the person must have been ordinarily resident in the territory comprising the European Economic Area and Switzerland immediately prior to the start of that period of residence.

(8) For the purposes of these Regulations 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 force has become part of one or other or both of those areas, shall be considered to have always been part of the European Community or the European Economic Area, as appropriate.”.

(1)

O.J. No. L 158, 30.04004, p.77.