Welsh Statutory Instruments
EDUCATION, WALES
Made
9 August 2011
Laid before the National Assembly for Wales
10 August 2011
Coming into force
31 August 2011
The Welsh Ministers, in exercise of the powers conferred upon the Secretary of State by sections 22 and 43(1) of the Teaching and Higher Education Act 1998(1) and sections 1 and 2 of the Education (Fees and Awards) Act 1983(2) and now exercisable by them(3) and in exercise of the powers conferred upon the National Assembly for Wales by section 28(6) of the Higher Education Act 2004(4) and now exercisable by them(5) make the following Regulations:
1.—(1) The title of these Regulations is the Education (Student Fees, Awards and Support) (Wales) Regulations 2011.
(2) These Regulations come into force on 31 August 2011 and apply in relation to Wales.
2. In these Regulations—
“the 2011 Regulations” (“Rheoliadau 2011”) means the Assembly Learning Grants and Loans (Higher Education) (Wales) Regulations 2011(6);
“the 2012 Regulations” (“Rheoliadau 2012”) means the Assembly Learning Grants and Loans (Higher Education) (Wales) (No.2) Regulations 2011(7);
“European Institutions Regulations” (“Rheoliadau'r Sefydliadau Ewropeaidd”) means the Assembly Learning Grants (European Institutions) (Wales) Regulations 2011(8);
“European University Institute Regulations” (“Rheoliadau'r Athrofa Brifysgol Ewropeaidd”) means the Assembly Learning Grants (European University Institute) (Wales) Regulations 2009(9);
“Fees Regulations” (“y Rheoliadau Ffioedd”) means the Education (Fees and Awards) (Wales) Regulations 2007(10); and
“Qualifying Courses and Persons Regulations” (“Rheoliadau'r Cyrsiau a Phersonau Cymhwysol”) means the Student Fees (Qualifying Courses and Persons) (Wales) Regulations 2011(11).
3. The 2011 Regulations are amended in accordance with regulations 4 and 5.
4. In regulation 2(1), in the definition of “person with leave to enter or remain” (“person sydd â chaniatâd i ddod i mewn neu i aros”), for sub-paragraph (a) substitute—
“(a)who has—
(i)applied for refugee status but has as a result of that application been informed in writing by a person acting under the authority of the Secretary of State for the Home Department that, although A is considered not to qualify for recognition as a refugee it is thought right to allow A to enter or remain in the United Kingdom on the grounds of humanitarian protection(12) or discretionary leave(13); or
(ii)not applied for refugee status but has been informed in writing by a person acting under the authority of the Secretary of State for the Home Department that it is thought right to allow A to enter or remain in the United Kingdom on the grounds of discretionary leave;”.
5. In Part 2 of Schedule 1—
(a)for paragraph 5(2)(b), substitute—
“(b)who was the spouse or civil partner of the person with leave to enter or remain on the date on which that person made—
(i)the application for asylum; or
(ii)the application for discretionary leave, where no application for asylum was made;”;
(b)for paragraph 5(3)(b), substitute—
“(b)who, on the date on which the person with leave to enter or remain made—
(i)the application for asylum; or
(ii)the application for discretionary leave, where no application for asylum was made,
was the child of that person or the child of a person who was the spouse or civil partner of the person with leave to enter or remain on that date;”; and
(c)for paragraph 5(3)(c), substitute—
“(c)who was under 18 on the date on which the person with leave to enter or remain made —
(i)the application for asylum; or
(ii)the application for discretionary leave, where no application for asylum was made;”.
6. The 2012 Regulations are amended in accordance with regulations 7 and 8.
7. In regulation 2(1), in the definition of “person with leave to enter or remain” (“person sydd â chaniatâd i ddod i mewn neu i aros”), for sub-paragraph (a) substitute—
“(a)who has—
(i)applied for refugee status but has as a result of that application been informed in writing by a person acting under the authority of the Secretary of State for the Home Department that, although A is considered not to qualify for recognition as a refugee it is thought right to allow A to enter or remain in the United Kingdom on the grounds of humanitarian protection or discretionary leave; or
(ii)not applied for refugee status but has been informed in writing by a person acting under the authority of the Secretary of State for the Home Department that it is thought right to allow A to enter or remain in the United Kingdom on the grounds of discretionary leave;”.
8. In Part 2 of Schedule 1—
(a)for paragraph 5(2)(b), substitute—
“(b)who was the spouse or civil partner of the person with leave to enter or remain on the date on which that person made—
(i)the application for asylum; or
(ii)the application for discretionary leave, where no application for asylum was made;”;
(b)for paragraph 5(3)(b), substitute—
“(b)who, on the date on which the person with leave to enter or remain made—
(i)the application for asylum; or
(ii)the application for discretionary leave, where no application for asylum was made,
was the child of that person or the child of a person who was the spouse or civil partner of the person with leave to enter or remain on that date;”; and
(c)for paragraph 5(3)(c), substitute—
“(c)who was under 18 on the date on which the person with leave to enter or remain made—
(i)the application for asylum; or
(ii)the application for discretionary leave, where no application for asylum was made;”.
9. The European Institutions Regulations are amended in accordance with regulations 10 and 11.
10. In regulation 3(1), in the definition of “person with leave to enter or remain” (“person sydd â chaniatâd i ddod i mewn neu i aros”), for sub-paragraph (a) substitute—
“(a)who has—
(i)applied for refugee status but has as a result of that application been informed in writing by a person acting under the authority of the Secretary of State for the Home Department that, although P is considered not to qualify for recognition as a refugee, it is thought right to allow P to enter or remain in the United Kingdom on the grounds of humanitarian protection or discretionary leave; or
(ii)not applied for refugee status but has been informed in writing by a person acting under the authority of the Secretary of State for the Home Department that it is thought right to allow P to enter or remain in the United Kingdom on the grounds of discretionary leave;”.
11. In Part 2 of Schedule 1—
(a)for paragraph 5(2)(b), substitute—
“(b)was the spouse or civil partner of the person with leave to enter or remain on the date on which that person made—
(i)the application for asylum; or
(ii)the application for discretionary leave, where no application for asylum was made;”;
(b)for paragraph 5(3)(b), substitute—
“(b)on the date on which the person with leave to enter or remain made—
(i)the application for asylum; or
(ii)the application for discretionary leave, where no application for asylum was made,
was the child of that person or the child of a person who was the spouse or civil partner of the person with leave to enter or remain on that date;”; and
(c)for paragraph 5(3)(c), substitute—
“(c)was under 18 on the date on which the person with leave to enter or remain made —
(i)the application for asylum; or
(ii)the application for discretionary leave, where no application for asylum was made;”.
12. The European University Institute Regulations are amended in accordance with regulations 13 to 15.
13. In regulation 3, in the definition of “person with leave to enter or remain” (“person sydd â chaniatâd i ddod i mewn neu i aros”), for paragraph (a) substitute—
“(a)who has—
(i)applied for refugee status but has as a result of that application been informed in writing by a person acting under the authority of the Secretary of State for the Home Department that, although that person is considered not to qualify for recognition as a refugee, it is thought right to allow that person to enter or remain in the United Kingdom on the grounds of humanitarian protection or discretionary leave; or
(ii)has not applied for refugee status but has been informed in writing by a person acting under the authority of the Secretary of State for the Home Department that it is thought right to allow that person to enter or remain in the United Kingdom on the grounds of discretionary leave;”.
14. In Part 1 of Schedule 1, in paragraph 1(1), in the definition of “family member” (“aelod o deulu”) for sub-paragraph (a)(ii) substitute—
“(ii)direct descendants of the person or of the person’s spouse or civil partner who are—
(aa)under the age of 21; or
(bb)dependants of the person or the person’s spouse or civil partner; or”.
15. In Part 2 of Schedule 1—
(a)for paragraph 5(2)(b), substitute—
“(b)who was the spouse or civil partner of the person with leave to enter or remain on the date on which that person made—
(i)the application for asylum; or
(ii)the application for discretionary leave, where no application for asylum was made;”;
(b)for paragraph 5(3)(b), substitute—
“(b)who, on the date on which the person with leave to enter or remain made—
(i)the application for asylum; or
(ii)the application for discretionary leave, where no application for asylum was made,
was the child of that person or the child of a person who was the spouse or civil partner of the person with leave to enter or remain on that date;”; and
(c)for paragraph 5(3)(c), substitute—
“(c)who was under 18 on the date on which the person with leave to enter or remain made—
(i)the application for asylum; or
(ii)the application for discretionary leave, where no application for asylum was made;”.
16. The Fees Regulations are amended in accordance with regulations 17 to 19.
17. In paragraph 1 of the Schedule, in the definition of “family member” (“aelod o deulu”), for sub-paragraph (a)(ii) substitute—
“(ii)direct descendants of the person or of the person’s spouse or civil partner who are—
(aa)under the age of 21; or
(bb)dependants of the person or the person’s spouse or civil partner; or”.
18. In paragraph 1 of the Schedule, in the definition of “person with leave to enter or remain” (“person sydd â chaniatâd i ddod i mewn neu aros”), for sub-paragraph (a) substitute—
“(a)who has—
(i)applied for refugee status but has as a result of that application been informed in writing by a person acting under the authority of the Secretary of State for the Home Department that, although that person is considered not to qualify for recognition as a refugee, it is thought right to allow that person to enter or remain in the United Kingdom on the grounds of humanitarian protection or discretionary leave; or
(ii)not applied for refugee status but has been informed in writing by a person acting under the authority of the Secretary of State for the Home Department that it is thought right to allow that person to enter or remain in the United Kingdom on the grounds of discretionary leave;”.
19. In the Schedule—
(a)for paragraph 5(2)(b), substitute—
“(b)who was the spouse or civil partner of the person with leave to enter or remain on the date on which that person made—
(i)the application for asylum; or
(ii)the application for discretionary leave, where no application for asylum was made; and”;
(b)for paragraph 5(3)(b), substitute—
“(b)who, on the date on which the person with leave to enter or remain made—
(i)the application for asylum; or
(ii)the application for discretionary leave, where no application for asylum was made,
was the child of that person or the child of a person who was the spouse or civil partner of the person with leave to enter or remain on that date;”; and
(c)for paragraph 5(3)(c), substitute—
“(c)who was under 18 on the date on which the person with leave to enter or remain made—
(i)the application for asylum; or
(ii)the application for discretionary leave, where no application for asylum was made; and”.
20. The Qualifying Courses and Persons Regulations are amended in accordance with regulations 21 and 22.
21. In paragraph 1(1) of the Schedule, in the definition of “person with leave to enter or remain” (“person sydd â chaniatâd i ddod i mewn neu i aros”) for sub-paragraph (a) substitute—
(a)who has—
(i)applied for refugee status but has as a result of that application been informed in writing by a person acting under the authority of the Secretary of State for the Home Department that, although P is considered not to qualify for recognition as a refugee, it is thought right to allow P to enter or remain in the United Kingdom on the grounds of humanitarian protection or discretionary leave; or
(ii)not applied for refugee status but has been informed in writing by a person acting under the authority of the Secretary of State for the Home Department that it is thought right to allow P to enter or remain in the United Kingdom on the grounds of discretionary leave;”.
22. In the Schedule—
(a)for paragraph 5(2)(b), substitute—
“(b)was the spouse or civil partner of the person with leave to enter or remain on the date on which that person made—
(i)the application for asylum; or
(ii)the application for discretionary leave, where no application for asylum was made; and”;
(b)for paragraph 5(3)(b), substitute—
“(b)who, on the date on which the person with leave to enter or remain made—
(i)the application for asylum; or
(ii)the application for discretionary leave, where no application for asylum was made,
was the child of that person or the child of a person who was the spouse or civil partner of the person with leave to enter or remain on that date;”; and
(c)for paragraph 5(3)(c), substitute—
“(c)who was under 18 on the date on which the person with leave to enter or remain made—
(i)the application for asylum; or
(ii)the application for discretionary leave, where no application for asylum was made; and”.
Jane Hutt
Minister for Finance and Leader of the House, one of the Welsh Ministers
9 August 2011
(This note is not part of the Regulations)
These Regulations amend:
(a)the Assembly Learning Grants and Loans (Higher Education) (Wales) Regulations 2011 (S.I. 2011/148 (W.32)) (“the 2011 Regulations”);
(b)the Assembly Learning Grants and Loans (Higher Education) (Wales) (No. 2) Regulations 2011 (S.I. 2011/886 (W.130)) (“the 2012 Regulations”);
(c)the Assembly Learning Grants (European Institutions) (Wales) Regulations 2011 (S.I. 2011/736 (W.113)) (“the European Institutions Regulations”);
(d)the Assembly Learning Grants (European University Institute) (Wales) Regulations 2009 (S.I. 2009/3359 (W.295)) (“the European University Institute Regulations”);
(e)the Education (Fees and Awards) (Wales) Regulations 2007 (S.I. 2007/2310 (W.181)) (“the Fees Regulations”); and
(f)the Student Fees (Qualifying Courses and Persons) (Wales) Regulations 2011 (S.I. 2011/691 (W.103)) (“the Qualifying Courses and Persons Regulations”).
Regulation 4 amends the definition of “person with leave to enter or remain” in regulation 2(1) of the 2011 Regulations. This amendment extends eligibility for student support to those persons who have been granted discretionary leave (and their spouses, civil partners and children), whether or not those persons have been the subject of a failed asylum application. Regulation 5 makes amendments to the relevant category of student in Schedule 1 to the 2011 Regulations which are consequential upon the amendments made by regulation 4.
Regulations 6 to 8 make corresponding amendments to the 2012 Regulations and regulations 9 to 11 make corresponding amendments to the European Institutions Regulations.
Regulation 13 amends the definition of “person with leave to enter or remain” in regulation 3 of the European University Institute Regulations. This amendment extends eligibility for student support to persons who have been granted discretionary leave (and their spouses, civil partners and children) whether or not those persons have been the subject of a failed asylum application. Regulation 14 amends the definition of “family member” in paragraph 1(1) of Schedule 1 to the European University Institute Regulations. This amendment replaces the reference to “child” with one that refers to direct descendants of the person or of the person’s spouse or civil partner who are under the age of 21 or dependants of the person or the person’s spouse or civil partner. This amendment means that the definition of “family member” in the European University Institute Regulations now corresponds with the definition of that term in the 2011 Regulations and the 2012 Regulations. Regulation 15 makes amendments to the relevant category of student in Schedule 1 to the European University Institute Regulations which are consequential upon the amendments made by regulation 13.
Regulation 17 amends the definition of “family member” in the Schedule to the Fees Regulations. This amendment replaces the reference to “child” with one that refers to direct descendants of the person or of the person’s spouse or civil partner who are under the age of 21 or dependants of the person or the person’s spouse or civil partner. This amendment means that the definition of “family member” in the Fees Regulations now corresponds with the definition of that term in the 2011 Regulations and the 2012 Regulations. Regulation 18 amends the definition of “person with leave to enter or remain” in the Schedule to the Fees Regulations. This amended definition extends the categories of person to whom higher ('overseas') tuition fees may not be charged by including persons who have been granted discretionary leave (and their spouses, civil partners and children), whether or not those persons have been the subject of a failed asylum application. Regulation 19 makes amendments to the relevant category of student in the Schedule to the Fees Regulations which are consequential upon the amendments made by regulation 18.
Regulation 21 amends the definition of “person with leave to enter or remain” in the Schedule to the Qualifying Courses and Persons Regulations. This amended definition extends the categories of qualifying persons prescribed by those Regulations by including persons who have been granted discretionary leave (and their spouses, civil partners and children), whether or not those persons have been the subject of a failed asylum application. Regulation 22 makes amendments to the relevant category of student in the Schedule to the Qualifying Courses and Persons Regulations which are consequential upon the amendments made by regulation 21.
1998 c. 30; section 22 was amended by the Learning and Skills Act 2000 (c. 21), section 146 and Schedule 11, the Income Tax (Earnings and Pensions) Act 2003 (c. 1), Schedule 6, the Finance Act 2003 (c. 14), section 147, the Higher Education Act 2004 (c. 8), sections 42 and 43 and Schedule 7 and the Apprenticeships, Skills, Children and Learning Act 2009 (c. 22), section 257.
1983 c. 40; section 1 was amended by the Education Reform Act 1988 (c. 40), section 237 and Schedule 12; the Further and Higher Education Act 1992 (c. 13), section 93 and Schedule 8; the Education Act 1994 (c. 30), section 24 and Schedule 2; the Education Act 1996 (c. 56), section 582(1) and Schedule 37; the Learning and Skills Act 2000 (c. 21) section 149 and Schedule 9; the Education Act 2002 (c. 32), section 215 and Schedule 21; the Education Act 2005 (c. 18) section 98 and Schedule 14; the National Council for Education and Training for Wales (Transfer of Functions to the National Assembly for Wales and Abolition) Order 2005 (S.I. 2005/3238), article 9 and Schedule 1; the Apprenticeships, Skills, Children and Learning Act 2009 (Consequential Amendments) (England and Wales) Order 2010 (S.I. 2010/1080), article 2 and Schedule 1 and the Local Education Authorities and Children’s Services Authorities (Integration of Functions) Order 2010 (S.I. 2010/1158), article 5 and Schedule 2. Section 2 was amended by the Teaching and Higher Education Act 1998 (c. 30), section 44 and Schedule 4.
The functions of the Secretary of State under section 22 of the Teaching and Higher Education Act 1998 (except so far as they relate to the making of any provision authorised by subsection (2)(a), (c), (j) or (k), (3)(e) or (f) or (5) of section 22) were transferred to the National Assembly for Wales by section 44 of the Higher Education Act 2004 and the Higher Education Act 2004 (Commencement No. 2 and Transitional Provision) (Wales) Order 2005 (S.I. 2005/1833 (W.149) (C.79)) as amended by the Higher Education Act 2004 (Commencement No. 2 and Transitional Provision) (Wales) (Amendment) Order 2006 (S.I. 2006/1660 (W.159) (C.56)). The functions of the National Assembly for Wales were transferred to the Welsh Ministers by virtue of paragraphs 30(1) and 30(2)(c) of Schedule 11 to the Government of Wales Act 2006 (c. 32). The functions of the Secretary of State under section 1 of the Education (Fees and Awards) Act 1983, so far as exercisable in relation to Wales, were transferred to the National Assembly for Wales by the National Assembly for Wales (Transfer of Functions) Order 2006 (S.I. 2006/1458) with effect from 8 June 2006. The functions of the Secretary of State under section 2 of the Education (Fees and Awards) Act 1983, so far as exercisable in relation to Wales, were transferred to the National Assembly for Wales by the National Assembly for Wales (Transfer of Functions) Order 1999 (S.I. 1999/672). The functions of the National Assembly for Wales in relation to sections 1 and 2 of the Education (Fees and Awards) Act 1983 were transferred to the Welsh Ministers by virtue of paragraphs 30(1) and 30(2)(d) of Schedule 11 to the Government of Wales Act 2006 (c. 32).
2004 c. 8; section 28 was amended by the Education Act 2005 (c. 18), section 98 and Schedule 14.
The functions of the National Assembly for Wales were transferred to the Welsh Ministers by virtue of paragraphs 30(1) and 30(2)(c) of Schedule 11 to the Government of Wales Act 2006 (c. 32).
S.I. 2011/148 (W.32).
S.I. 2011/886 (W.130).
S.I. 2011/736 (W.113).
S.I. 2009/3359 (W.295).
S.I. 2007/2310 (W.181), as amended by S.I. 2008/1259 and S.I. 2010/1142.
S.I. 2011/691 (W.103).
Humanitarian protection may be granted by the Secretary of State pursuant to Part 11 of the Immigration Rules made under section 3(2) of the Immigration Act 1971 (c. 77).
Discretionary leave may be granted by the Secretary of State under section 3(1)(b) of the Immigration Act 1971.