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Welsh Statutory Instruments

2015 No. 1484 (W. 163)

Education, Wales

The Higher Education (Qualifying Courses, Qualifying Persons and Supplementary Provision) (Wales) Regulations 2015

Made

7 July 2015

Laid before the National Assembly for Wales

9 July 2015

Coming into force

31 July 2015

The Welsh Ministers in exercise of the powers conferred on them by sections 5(2)(b), 5(5)(b), 55(2) and 58(3) of the Higher Education (Wales) Act 2015(1) make the following Regulations.

Title, commencement and applicationE+W

1.—(1) The title of these Regulations is the Higher Education (Qualifying Courses, Qualifying Persons and Supplementary Provision) (Wales) Regulations 2015 and they come into force on 31 July 2015.

(2) These Regulations apply in relation to Wales.

Commencement Information

I1Reg. 1 in force at 31.7.2015, see reg. 1(1)

InterpretationE+W

2.—(1) In these Regulations—

[F1“the 1998 Act” (“Deddf 1998”) means the Teaching and Higher Education Act 1998;]

“the 2004 Act” (“Deddf 2004”) means the Higher Education Act 2004(2);

“the 2015 Act” (“Deddf 2015”) means the Higher Education (Wales) Act 2015;

“the 2015 Regulations” (“Rheoliadau 2015”) means the Education (Student Support) (Wales) Regulations 2015(3);

[F2“the 2017 Regulations” (“Rheoliadau 2017”) means the Education (Student Support) (Wales) Regulations 2017;]

[F2“the 2018 Regulations” (“Rheoliadau 2018”) means the Education (Student Support) (Wales) Regulations 2018;]

“course for the initial training of teachers” (“cwrs ar gyfer hyfforddiant cychwynnol athrawon”) includes such a course leading to a first degree;

“course of higher education” (“cwrs addysg uwch”) means a course falling within paragraph 1 of Schedule 6 to the Education Reform Act 1988(4);

“end-on course” (“cwrs penben”) has the meaning given in regulation 2(1) of the 2015 Regulations [F3or regulation 2(1) of the 2017 Regulations];

“equivalent or lower qualification” (“cymhwyster cyfwerth neu is”) means a qualification determined by the Welsh Ministers in accordance with paragraph (2) to be an equivalent or lower qualification;

“preceding course” (“cwrs blaenorol”) means a course mentioned in paragraph 2 or 3 of Schedule 2 to the 2015 Regulations [F4, a course mentioned in paragraph 2 or 3 of Schedule 2 to the 2017 Regulations] or a course for a foundation degree or a course for the initial training of teachers which (disregarding any intervening vacation) a person ceases to attend immediately before beginning to attend an end-on course;

[F1“publicly-funded” (“yn cael ei gyllido’n gyhoeddus”) means maintained or assisted by recurrent grants out of public funds;]

“qualified teacher” (“athro cymwysedig neu athrawes gymwysedig”) has the meaning given in section 132(1) of the Education Act 2002(5); and

[F5“single course” (“cwrs sengl”) means a course to which—

(a)

regulation 5(6) of the 2015 Regulations applies and which falls within the description of a course in that regulation;

(b)

regulation 5(6) of the 2017 Regulations applies and which falls within the description of a course in that regulation; or

(c)

regulation 6(4) of the 2018 Regulations applies and which falls within the description of a course in regulation 6(3) of the 2018 Regulations.]

(2) The Welsh Ministers may determine that a qualification is an equivalent or lower qualification if—

(a)the person holds a higher education qualification from an institution in the United Kingdom; and

(b)the qualification referred to in sub-paragraph (a) is of an academic level which is equivalent to or higher than a qualification to which the current course leads.

Textual Amendments

Commencement Information

I2Reg. 2 in force at 31.7.2015, see reg. 1(1)

[F6Prescribed description of a qualifying courseE+W

3.—(1) Subject to paragraph (2), a qualifying course in relation to a 2004 Act plan for the purposes of the transitional period is:

(a)a course of higher education;

(b)designated for the purposes of section 22 of the 1998 Act on the first day of an academic year which begins on or after 1 September 2012; and

(c)provided by an institution in Wales.

(2) A course is not a qualifying course if at the time the qualifying person received an offer of a place on that course the institution providing it was not publicly-funded.

Textual Amendments

3A.—(1) Subject to paragraph (2), a qualifying course for the purpose of a fee and access plan which is not a 2004 Act plan is a course of higher education capable of being designated by regulations made under section 22 of the 1998 Act (regardless of whether the institution providing the course is publicly-funded).

(2) Where a course is provided by a person on behalf of an institution, that course is not a qualifying course if that person is not a charity.

Textual Amendments

3B.  For the purposes of regulations 3 and 3A, a course is not a qualifying course if:

(a)the first academic year of the course began before 1 September 2012;

(b)it is an end-on course and the preceding course was not a qualifying course by reason of paragraph (a); or

(c)it is a part-time course.]

Textual Amendments

Prescribed description of a qualifying personE+W

4.—[F7(1) A qualifying person who is prescribed for the purposes of section 5(5) of the 2015 Act is a person who falls within the Schedule on the first day of an academic year, other than—

(a)a person who is not eligible for support under the 2015 Regulations by reason of regulation 4(3)(c), (d), (e) or (f) of those Regulations;

(b)a person who is not eligible for support under the 2017 Regulations by reason of regulation 4(3)(c), (d), (e) or (f) of those Regulations;

(c)a person who is not eligible for support under the 2018 Regulations because they are a person to whom Exception 3, paragraph (a), Exception 4, Exception 5 or Exception 6 listed in regulation 10(1) of those Regulations applies; or

(d)a person mentioned in paragraphs (2), (3), or (8).]

(2) Subject to the exceptions in paragraphs (4), (5) (6) and (7), a person is not a qualifying person if—

(a)the person holds a higher education qualification; and

(b)the qualifying course leads to a qualification which is an equivalent or lower qualification.

(3) A person is not a qualifying person if—

(a)the person ceases a course (“the first course”) which is not a qualifying course;

(b)disregarding any intervening vacation, the person immediately attends another course which is a qualifying course; and

(c)the first course was not a qualifying course by reason of regulation 3(2).

(4) Paragraph (2) does not apply where—

(a)the qualifying course is a course for the initial training of teachers;

(b)the duration of the course does not exceed two years (the duration of a part-time course being expressed as its full-time equivalent); and

(c)the qualifying person is not a qualified teacher.

(5) Paragraph (2) does not apply in respect of any part of a single course where—

(a)the single course leads to an honours degree being conferred on the qualifying person from an institution in the United Kingdom before the final degree or equivalent qualification; and

(b)the only honours degree held by the qualifying person was received as part of that single course.

(6) Paragraph (2) does not apply where the qualifying course is a foundation degree.

(7) Paragraph (2) does not apply where the qualifying course leads to qualification as a social worker, medical doctor, dentist, veterinary surgeon or architect.

(8) Where an event occurs in the course of an academic year and as a result a person falls within the Schedule in the course of an academic year, that person is not a qualifying person in respect of the academic year in which the relevant event occurred or any previous academic year.

Textual Amendments

Commencement Information

I3Reg. 4 in force at 31.7.2015, see reg. 1(1)

Supplementary provisionE+W

5.—(1) The words “provided in Wales” in section 5(2)(b) of the 2015 Act have effect so as to include the preparation, in Wales, of the materials necessary to deliver a particular qualifying course, regardless of whether students are required to attend the institution providing the course.

(2) The words “provided in Wales” in section 17(1) of the 2015 Act have effect so as to include the preparation, in Wales, of the materials necessary to provide education, regardless of whether students are required to attend an institution to receive that education.

Commencement Information

I4Reg. 5 in force at 31.7.2015, see reg. 1(1)

6.  For the purposes of paragraph 29(3) of the Schedule to the 2015 Act, a 2004 Act plan includes a proposed plan which HEFCW receives as relevant authority(6) under section 34 of the 2004 Act before 1 August 2015 but which is not approved by HEFCW until after that date following a review under regulations 11 to 18 of the Student Fees (Approved Plans) (Wales) Regulations 2011(7).

Commencement Information

I5Reg. 6 in force at 31.7.2015, see reg. 1(1)

Huw Lewis

Minister for Education and Skills, one of the Welsh Ministers

Regulation 4

SCHEDULEE+W

1.—(1) For the purposes of this Schedule—E+W

“academic year” (“blwyddyn academaidd”) means the period of twelve months beginning on 1 January, 1 April, 1 July or 1 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 January and before 1 April, on or after 1 April and before 1 July, on or after 1 July and before 1 August or on or after 1 August and on or before 31 December, respectively;

“Directive 2004/38” (“Cyfarwyddeb 2004/38”) means Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the rights of citizens of the Union and their family members to move and reside freely in the territory of the Member States(8);

“EEA frontier self-employed person” (“person hunangyflogedig ffin yr AEE”) 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 F8... and returns to the national’s residence in Switzerland or that EEA State daily or at least once a week;

“EEA frontier worker” (“gweithiwr ffin yr AEE”) 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 F8... and returns to the national’s residence in Switzerland or that EEA State daily or at least once a week;

“EEA migrant worker” (“gweithiwr mudol o’r AEE”) means an EEA national who is a worker, other than an EEA frontier worker, in the United Kingdom;

“EEA national” (“gwladolyn o’r AEE”) means a national of an EEA State F8...;

“EEA self-employed person” (“person hunangyflogedig o’r AEE”) means an EEA national who is a self-employed person, other than an EEA frontier self-employed person, in the United Kingdom;

[F9“EEA EFTA separation agreement” (“cytundeb gwahanu EFTA yr AEE”) has the meaning given by section 39(1) of the European Union (Withdrawal Agreement) Act 2020;]

“employed person” (“person cyflogedig”) means an employed person within the meaning of Annex 1 to the Swiss Agreement;

“employment” (“cyflogaeth”) means full-time or part-time employment;

“EU national” (“gwladolyn o’r UE”) means a national of a Member State of the European Union;

“European Economic Area” (“Ardal Economaidd Ewropeaidd”) means the area comprised by the EEA States;

“European Union” (“yr Undeb Ewropeaidd”) means the territory comprised by the Member States of the European Union as constituted from time to time;

“family member” (“aelod o deulu”) 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)

that person’s spouse or civil partner;

(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

(iii)

dependent direct relatives in the ascending line of the person or the person’s 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)

the person’s spouse or civil partner; or

(ii)

the person’s child or the child of the person’s spouse or civil partner;

(c)

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

(i)

the national’s spouse or civil partner; or

(ii)

direct descendants of the national or the national’s spouse or civil partner who are—

(aa)

under the age of 21; or

(bb)

dependants of the national or the national’s spouse or civil partner;

(d)

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

(i)

the national’s spouse or civil partner;

(ii)

direct descendants of the national or the national’s spouse or civil partner who are—

(aa)

under the age of 21; or

(bb)

dependants of the national or the national’s spouse or civil partner; or

(iii)

dependent direct relatives in the national’s ascending line or of the national’s spouse or civil partner;

(e)

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

(i)

the national’s spouse or civil partner; or

(ii)

direct descendants of the national or the national’s spouse or civil partner who are—

(aa)

under the age of 21; or

(bb)

dependants of the national or the national’s spouse or civil partner;

[F10“immigration rules” (“rheolau mewnfudo”) means the rules laid before Parliament by the Secretary of State under section 3(2) of the Immigration Act 1971;]

“the Islands” (“yr Ynysoedd”) means the Channel Islands and the Isle of Man;

“overseas territories” (“tiriogaethau tramor”) 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; [F11Gibraltar;] Mayotte; Greenland; Montserrat; Netherlands Antilles (Bonaire, Curacao, Saba, Sint Eustatius and Sint Maarten); Pitcairn, Henderson, Ducie and 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 Caledonia and Dependencies; Turks and Caicos Islands and Wallis and Futuna;

[F10“person granted stateless leave” (“person y rhoddwyd caniatâd iddo aros fel person diwladwriaeth”) means a person who—

(a)

has extant leave to remain as a stateless person under the immigration rules; and

(b)

has been ordinarily resident in the [F12United Kingdom and the Islands] throughout the period since the person was granted such leave;]

“person with leave to enter or remain” (“person sydd â chaniatâd i ddod i mewn neu i aros”) means a person (“P”)—

(a)

[F13who 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, and who has been granted leave to enter or remain accordingly;

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

(iia)

[F14been granted leave to remain on the grounds of family life under the immigration rules;]

(iii)

been granted leave to remain on the grounds of private life under the immigration rules; or

(iv)

been informed in writing by a person acting under the authority of the Secretary of State for the Home Department that, although P is not considered to qualify for leave to remain on the grounds of private [F15or family] life under the immigration rules, P has been granted leave to remain outside the rules on the grounds of Article 8 of the European Convention on Human Rights;]

(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)(9); and

(d)

who has been ordinarily resident in the [F12United Kingdom and the Islands] throughout the period since P was granted leave to enter or remain;

[F16“person with section 67 leave to remain” (“person sydd â chaniatâd i aros o dan adran 67”) means a person who—

(a)

has extant leave to remain in the United Kingdom under section 67 of the Immigration Act 2016 and in accordance with the immigration rules; and

(b)

has been ordinarily resident in the United Kingdom and the Islands throughout the period since the person was granted such leave;]

“refugee” (“ffoadur”) 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 July 1951(10) as extended by the Protocol thereto which entered into force on 4 October 1967(11);

[F9“residence scheme immigration rules” (“rheolau mewnfudo’r cynllun preswylio”) has the meaning given by section 17(1) of the European Union (Withdrawal Agreement) Act 2020;]

[F17“right of permanent residence” (“hawl i breswylio’n barhaol”) 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 implementation period completion day, A would have acquired such right under Directive 2004/38 as it had effect immediately before implementation period completion day;]

“self-employed person” (“person hunangyflogedig”) 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” (“wedi setlo”) has the meaning given by section 33(2A) of the Immigration Act 1971(12);

“Swiss Agreement” (“Cytundeb y Swistir”) 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 June 1999(13) and which came into force on 1 June 2002;

[F9“Swiss citizens’ rights agreement” (“cytundeb ar hawliau dinasyddion Swisaidd”) has the meaning given by section 39(1) of the European Union (Withdrawal Agreement) Act 2020;

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

“Swiss frontier employed person” (“person cyflogedig ffin y Swistir”) 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 F8... and returns to the national’s residence in Switzerland or that EEA State daily or at least once a week;

“Swiss frontier self-employed person” (“person hunangyflogedig ffin y Swistir”) 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 F8... and returns to the national’s residence in Switzerland or that EEA State daily or at least once a week;

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

“Turkish worker” (“gweithiwr Twrcaidd”) 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; and

“worker” (“gweithiwr”) 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” (“rhiant”) includes a guardian, any other person having parental responsibility for a child and any person having care of a child and “child” (“plentyn”) is to be construed accordingly.

(3) For the purposes of this Schedule, a person (“P” in this definition) is to be treated as ordinarily resident in the United Kingdom, the [F12United Kingdom and the Islands], in [F18the territory comprising the United Kingdom, Gibraltar, the European Economic Area and Switzerland], in [F19the territory comprising the United Kingdom, the European Economic Area, Switzerland and the overseas territories], or in [F20the territory comprising the United Kingdom, the European Economic Area, Switzerland, Turkey and the overseas territories] if P would have been so resident but for the fact that—

(a)P;

(b)P’s spouse or civil partner;

(c)P’s parent; or

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

is or was temporarily employed outside the area in question.

(4) For the purposes of sub-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 [F21the United Kingdom, Gibraltar,] 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 [F22the United Kingdom, Gibraltar,] the European Economic Area, Switzerland and Turkey as members of such forces.

(5) For the purposes of this Schedule an area [F23other than the United Kingdom or Gibraltar] which—

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

(b)at any time before or after these Regulations come into force 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.

(6) For the purposes of this Schedule a person who is ordinarily resident in Wales, England, Scotland, Northern Ireland or the Islands having moved from one of those areas for the purpose of undertaking—

(a)the present course; or

(b)a course which, disregarding any intervening vacation, the person undertook immediately before undertaking the present course,

is to be considered to be ordinarily resident in the place from which the person moved.]

Textual Amendments

F16Words in Sch. para. 1(1) inserted (with application in accordance with reg. 1(3)(b) of the amending S.I.) by The Education (Student Finance) (Miscellaneous Amendments) (Wales) Regulations 2019 (S.I. 2019/235), regs. 1(3)(a), 13(a)

Commencement Information

I6Sch. para. 1 in force at 31.7.2015, see reg. 1(1)

Persons who are settled in the United KingdomE+W

2.—(1) A person who on the first day of the first academic year of the course—

(a)is settled in the United Kingdom other than by reason of having acquired the right of permanent residence;

(b)is ordinarily resident in the United Kingdom;

(c)has been ordinarily resident in the [F12United Kingdom and the 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 residence in the [F12United Kingdom 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 the [F12United Kingdom and the Islands] in accordance with paragraph 1(3).

Textual Amendments

Commencement Information

I7Sch. para. 2 in force at 31.7.2015, see reg. 1(1)

3.  A person who—

[F24(a)on the first day of an academic year of the course either—

(i)is settled in the United Kingdom by virtue of having acquired the right of permanent residence; or

(ii)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 implementation period completion day had the facts pertaining to that person’s right to reside fallen to be considered immediately before implementation period completion day;]

(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 [F12United Kingdom and the Islands] throughout the three-year period preceding the first day of the first academic year of the course; and

(d)in a case where the residence referred to in sub-paragraph (c) was wholly or mainly for the purpose of receiving full-time education, was ordinarily resident in the territory comprising [F25the United Kingdom,] the European Economic Area, Switzerland and the overseas territories immediately before the period of residence referred to in sub-paragraph (c).

Textual Amendments

Commencement Information

I8Sch. para. 3 in force at 31.7.2015, see reg. 1(1)

Refugees and their family membersE+W

4.—(1) A person who—

(a)is a refugee;

(b)is ordinarily resident in the [F12United Kingdom and the Islands] and has not ceased to be so resident since the person was recognised as a refugee; and

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

(2) A person who—

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

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

(c)is ordinarily resident in the [F12United Kingdom and the Islands] and has not ceased to be so resident since the refugee was given leave to remain in the United Kingdom; and

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

(3) A person who—

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

(b)on the date on which the refugee applied 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)was under 18 on the date on which the refugee applied for asylum;

(d)is ordinarily resident in the [F12United Kingdom and the Islands] and has not ceased to be so resident since the refugee was given leave to remain in the United Kingdom; and

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

Textual Amendments

Commencement Information

I9Sch. para. 4 in force at 31.7.2015, see reg. 1(1)

[F26Persons granted stateless leave and their family membersE+W

4A.—[F27(1) A person granted stateless leave who is ordinarily resident in the United Kingdom on the first day of the first academic year of the course.]

(2) A person—

(a)who—

(i)is the spouse or civil partner of a person granted stateless leave; and

(ii)on the leave application date, was the spouse or civil partner of a person granted stateless leave; [F28and]

(b)who is ordinarily resident in [F29the United Kingdom] on the first day of the first academic year of the course[F30.]

F31(c). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(3) A person—

(a)who—

(i)is the child of a person granted stateless leave or the child of the spouse or civil partner of a person granted stateless leave; and

(ii)on the leave application date, was the child of a person granted stateless leave or the child of a person who, on the leave application date, was the spouse or civil partner of a person granted stateless leave;

(b)who was under 18 on the leave application date; [F32and]

(c)who is ordinarily resident in [F29the United Kingdom] on the first day of the first academic year of the course[F33.]

F34(d). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(4) In this paragraph, “leave application date” means the date on which the person granted stateless leave made an application to remain in the United Kingdom as a stateless person under the immigration rules.]

Textual Amendments

Persons with leave to enter or remain and their family membersE+W

5.—(1) A person—

(a)with leave to enter or remain; and

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

(2) A person who—

(a)is the spouse or civil partner of a person with leave to enter or remain;

[F35(b)was the spouse or civil partner of the person with leave to enter or remain on the leave application date; and]

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

(3) A person—

(a)who is the child of a person with leave to enter or remain or the child of the spouse or civil partner of a person with leave to enter or remain;

[F36(b)who, on the leave application date, was the child of the person with leave to enter or remain 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;]

[F37(c)who was under 18 on the leave application date; and]

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

[F38(4) In this paragraph “leave application date” means the date on which the person with leave to enter or remain made the application that led to that person being granted leave to enter or remain in the United Kingdom.]

Textual Amendments

Commencement Information

I10Sch. para. 5 in force at 31.7.2015, see reg. 1(1)

[F39Persons with section 67 leave to remainE+W

5A.—(1) A person who—

(a)is a person with section 67 leave to remain; [F40and]

(b)is ordinarily resident in the United Kingdom on the first day of the first academic year of the course[F41.]

F42(c). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(2) A person who—

(a)is the child of a person with section 67 leave to remain;

(b)on the leave application date was under 18 years old and was the child of the person with section 67 leave to remain; [F43and]

(c)is ordinarily resident in the United Kingdom on the first day of the first academic year of the course[F44.]

F45(d). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(3) In this paragraph—

“leave application date” means the date on which the person with section 67 leave to remain made the application that led to that person being granted leave to remain in the United Kingdom.]

Textual Amendments

F39Sch. para. 5A inserted (with application in accordance with reg. 1(3)(b) of the amending S.I.) by The Education (Student Finance) (Miscellaneous Amendments) (Wales) Regulations 2019 (S.I. 2019/235), regs. 1(3)(a), 13(c)

Workers, employed persons, self-employed persons and their family membersE+W

6.—(1) A person 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 [F46the 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 falls within paragraph (a)(iv), (v) or (vi) of that sub-paragraph.

Textual Amendments

Commencement Information

I11Sch. para. 6 in force at 31.7.2015, see reg. 1(1)

7.—[F47(1)]  A person 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 [F48the 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 the freedom of movement for workers within the Union(14), as extended by the EEA Agreement.

[F49(2) Any description of person who would have fallen within this paragraph immediately before implementation period completion day is to be treated as falling within this paragraph on and after implementation period completion day.]

Textual Amendments

Commencement Information

I12Sch. para. 7 in force at 31.7.2015, see reg. 1(1)

Persons who are settled in the United Kingdom and have exercised a right of residence elsewhereE+W

8.—(1) A person who—

(a)is settled in the United Kingdom;

(b)left the United Kingdom and exercised a right of residence [F50before implementation period completion day] after having been settled in the United Kingdom;

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

(d)has been ordinarily resident in the territory comprising [F51the 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

(e)in a case where the ordinary residence referred to in paragraph (d) was wholly or mainly for the purposes of receiving full-time education, was ordinarily resident in the territory comprising [F52the 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 (“A” in this sub-paragraph) has exercised a right of residence—

(a)where A 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 [F53had the right] of permanent residence, A 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

(b)where A is settled in the United Kingdom and [F54had the right] of permanent residence, A [F55has gone] to the state within the territory comprising the European Economic Area and Switzerland of which A is a national or of which the person in relation to whom A is a family member is a national.

[F56(3) For the purposes of this paragraph, 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.]

Textual Amendments

Commencement Information

I13Sch. para. 8 in force at 31.7.2015, see reg. 1(1)

EU nationalsE+W

9.—(1) A person who—

(a)is either—

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

(ii)a family member of a such a person;

(b)is undertaking the course in the United Kingdom;

(c)subject to sub-paragraph (2), has been ordinarily resident in the territory comprising [F57the 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)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.

[F58(2) Paragraph (c) of sub-paragraph (1) does not apply to a family member of a person who—

(a)is—

(i)a United Kingdom national who has exercised a right to reside in the territory of a Member State under Article 7(1) of Directive 2004/38; or

(ii)an EU national; and

(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.]

(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).

[F59(4) Any description of person who would have fallen within this paragraph immediately before implementation period completion day is to be treated as falling within this paragraph on and after implementation period completion day.]

Textual Amendments

Commencement Information

I14Sch. para. 9 in force at 31.7.2015, see reg. 1(1)

10.—(1) A person who—

(a)is an EU national F60... 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 [F12United Kingdom and the 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 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 [F61the United Kingdom,] the European Economic Area, Switzerland and the overseas territories immediately prior to the period of ordinary residence referred to in paragraph (c).

(2) Where a state accedes to the European Union after the first day of the first academic year of the course and a person is a national of that state, the requirement in paragraph (a) of sub-paragraph (1) to be an EU national F62... on the first day of the first academic year of the course is treated as being satisfied.

Textual Amendments

Commencement Information

I15Sch. para. 10 in force at 31.7.2015, see reg. 1(1)

[F63Children of Swiss nationalsE+W

11.—(1) A person who—

(a)is the child of a Swiss national who is entitled to support in the United Kingdom by virtue of Article 3(6) of Annex 1 to the Swiss 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 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 before the period of ordinary resident referred to in paragraph (c).

(2) Any description of person who would have fallen within this paragraph immediately before implementation period completion day is to be treated as falling within this paragraph on and after implementation period completion day.]

Textual Amendments

Children of Turkish workersE+W

12.  A person who—

(a)is the child of a Turkish worker;

(b)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 [F64the 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.

Textual Amendments

Commencement Information

I16Sch. para. 12 in force at 31.7.2015, see reg. 1(1)

EXPLANATORY NOTE

(This note is not part of the Regulations)

These Regulations prescribe the qualifying courses and qualifying persons for the purposes of section 5 of the Higher Education (Wales) Act 2015 (“the 2015 Act”) which sets out that fee and access plans must specify (or provide for the determination of) fee limits in relation to qualifying courses each academic year.

Fee limits are the maximum amount which a qualifying person will have to pay an institution for undertaking a qualifying course.

Section 5(2)(b) of the 2015 Act enables the Welsh Ministers to prescribe a description of qualifying courses, and section 5(5)(b) enables them to prescribe classes of persons as qualifying persons.

The qualifying courses prescribed by regulation 3 are those courses which are capable of being designated by regulations made under section 22 of the Teaching and Higher Education Act 1998 where the first academic year of the course begins on or after 1 September 2012. Designation under those regulations means that students can apply for student support in respect of undertaking a course. There is an exception for “end-on courses” where the original course began before 1 September 2012.

The qualifying persons prescribed by regulation 4 are those persons who, on the first day of the relevant academic year, fall within the Schedule, save for those persons who are not eligible for support under the Education (Student Support) (Wales) Regulations 2015 by reason of certain paragraphs of regulation 4 of those Regulations, or who already have an honours degree from a UK institution.

There is an exception for those students who transfer to a qualifying course from a course which began before 1 September 2012. There are exceptions in respect of a previous honours degrees for persons undertaking courses of initial teacher training, who have obtained the honours degree only as part of a single course they are currently undertaking or where the course leads to a qualification as a social worker, medical doctor, dentist, veterinary surgeon or architect.

Regulations 5 and 6 make supplementary provision.

Regulation 5 makes clear that the words ‘provided in Wales’ in respect of sections 5 and 17 of the 2015 Act include the preparation in Wales of the materials necessary to deliver a particular course or to provide education, even if students are not required to attend the institution delivering the course or providing the education, for example a distance learning course. Regulation 6 provides that the term “2004 Act plan” in paragraph 29(3) of the Schedule to the 2015 Act includes a proposed plan which HEFCW receives under section 34 of the Higher Education Act 2004 before the 1 August 2015 (the date on which that paragraph comes into force) but which is approved by HEFCW after that date following a review under the regulations 11 to 18 of the Student Fees (Approved Plans) (Wales) Regulations 2011.

The Welsh Ministers’ Code of Practice on the carrying out of Regulatory Impact Assessments was considered in relation to these Regulations. As a result, a regulatory impact assessment has been prepared as to the likely costs and benefits of complying with these Regulations. A copy can be obtained from the Higher Education Division, Cathays Park, Cardiff, CF10 3NQ.

(6)

The Higher Education Act 2004 (Relevant Authority) (Designation) (Wales) Regulations 2011 (S.I. 2011/658 (W. 96)) refer.

(8)

OJ L158, 30.04.2004, pp. 77-123.

(9)

Section 104 was amended by the Asylum and Immigration (Treatment of Claimants etc.) Act 2004 (c. 19), Schedules 2 and 4; by the Immigration, Asylum and Nationality Act 2006 (c. 13), and by the Transfer of Functions of the Asylum and Immigration Tribunal Order 2010 (S.I. 2010/21), Schedule 1.

(10)

Cmnd. 9171.

(11)

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

(12)

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

(13)

Cm. 4904 and OJ No. L114, 30.04.02, p. 6.

(14)

OJ No L141, 27.05.2011, p. 1.