Statutory Rules of Northern Ireland

2020 No. 295

Exiting The European Union

Education, Northern Ireland

The Education (Student Fees and Support) (Amendment etc.) (EU Exit) Regulations (Northern Ireland) 2020

Made

1st December 2020

Coming into operation in accordance with regulation 1

The Department for the Economy(1), in exercise of the powers conferred by Articles 3 and 8(4) of the Education (Student Support) (Northern Ireland) Order 1998(2) and Articles 4(8) and 14(4) of the Higher Education (Northern Ireland) Order 2005(3), makes the following Regulations.

Citation and Commencement

1.—(1) These Regulations may be cited as The Education (Student Fees and Support) (Amendment etc.) (EU Exit) Regulations (Northern Ireland) 2020.

(2) This regulation and regulation 2 come into force immediately before IP completion day.

(3) The remainder of these regulations come into force on IP completion day.

Revocation of the Education (Student Fees and Support) (Amendment) (Northern Ireland) (EU Exit) Regulations 2019

2. Regulations 2 to 13 of the Education (Student Fees and Support) (Amendment) (Northern Ireland) (EU Exit) Regulations 2019(4) are revoked.

Amendment of the Education (Student Support) (No. 2) Regulations (Northern Ireland) 2009

3. The Education (Student Support) (No. 2) Regulations (Northern Ireland) 2009(5) are amended as follows.

Amendment of regulation 2

4. In regulation 2 (1) (interpretation), omit the definition of “right of permanent residence”.

Amendment of regulation 18

5. In regulation 18(6) (events)—

(a)in paragraph (d), after “EC national”, insert “or of a person who is eligible under paragraph 9 of Part 2 of Schedule 2 by virtue of paragraph 9(4) of Part 2 of that Schedule other than as a family member”;

(b)for paragraph (e), substitute—

“(e)the student becomes a person described in paragraph 3 (a) of Schedule 2”.

Amendment of regulation 43

6. In regulation 43(1)(ge)(7) (interpretation of chapter 4)—

(a)in paragraph (ii), for “another Member State”, substitute “a Member State”;

(b)for paragraph (iii), substitute—

“(iii)where the legislation of—

(aa)the United Kingdom and one or more Member States; or

(bb)more than one Member State

applies to the period, A’s total income from all sources as determined for the purposes of the income tax legislation under which the Department considers that A’s total income in that period is greatest,”.

Amendment of regulation 74

7. In regulation 74(2)(d) (students becoming eligible during the course of an academic year), substitute—

“(d)the student becomes a person described in paragraph 3 (a) of Schedule 2;”.

Amendment of regulation 83

8. In regulation 83(2) (8) (students becoming eligible during the course of an academic year)

(a)in paragraph (c) , after the first “EC national”, insert “or of a person who is eligible under paragraph 9 of Part 2 of Schedule 2 by virtue of paragraph 9(4) of Part 2 of that Schedule other than as a family member”;

(b)for sub-paragraph (d) substitute—

“(d)the student becomes a person described in paragraph 3 (a) of Schedule 2;”.

Amendment of regulation 106

9. In regulation 106 (4)(9) (students becoming eligible during the course of the academic year)

(a)in paragraph (d) , after “EU national”, insert “or of a person who is eligible under paragraph 9 of Part 2 of Schedule 2 by virtue of paragraph 9(4) of Part 2 of that Schedule other than as a family member”;

(b)for sub-paragraph (f), substitute—

“(d)the student becomes a person described in paragraph 3 (a) of Schedule 2;”.

Amendment of regulation 123

10. In regulation 123(3)(10)(students becoming eligible during the course of the academic year),

(b)for sub-paragraph (f), substitute—

“(d)the student becomes a person described in paragraph 3 (a) of Schedule 2;”.

Amendment of regulation 151

11. In regulation 151(11)(Events)

(a)in paragraph (d) , after “EC national”, insert “or of a person who is eligible under paragraph 9 of Part 2 of Schedule 2 by virtue of paragraph 9(4) of Part 2 of that Schedule other than as a family member”

(b)for sub-paragraph (e), substitute—

“(d)the student becomes a person described in paragraph 3(a) of Schedule 2;”.

Amendment of Schedule 2

12. Schedule 2 (eligible students) is amended as follows.

(a)In Part 1 (interpretation), paragraph 1(12)—

(i)in sub-paragraph (1)—

(aa)omit “other than the United Kingdom” each time it occurs;

(bb)at the appropriate place, insert the following definitions—

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

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

“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, A would have acquired such right under Directive 2004/38 as it had effect immediately before IP completion day;

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

(cc)in the definition of “Swiss frontier self-employed person”, omit “, other than the United Kingdom,”;

(ii)in sub-paragraphs (4) and (5), after “the territory comprising”, insert “the United Kingdom, Gibraltar,” each time it occurs;

(iii)in sub-paragraph (6), after “an area”, insert “other than the United Kingdom or Gibraltar”.

(b)In Part 2 (categories)—

(i)in paragraph 3 (persons who are settled in the United Kingdom)—

(aa)for sub-paragraph (a), substitute—

“(a)meets one of the following conditions—

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

(bb)in sub-paragraph (d), after “the territory comprising”, insert “the United Kingdom, Gibraltar,”;

(ii)in paragraph 6(1)(c) (workers, employed persons, self-employed persons and their family members), after “the territory comprising”, insert “the United Kingdom, Gibraltar,”;

(iii)in paragraph 7 (workers, employed persons, self-employed persons and their family members)—

(aa)sub-paragraphs (a), (b) and (c) are renumbered as sub-paragraph (1)(a), (b) and (c);

(bb)in sub-paragraph (1)(b) as so renumbered, after “the territory comprising”, insert “the United Kingdom, Gibraltar,”;

(cc)after sub-paragraph (1)(c) as so renumbered, insert—

“(2) Any description of person who would have been eligible under this paragraph immediately before IP completion day is to be eligible on and after IP completion day.”;

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

(aa)in sub-paragraph (1)(b), after “right of residence”, insert “before IP completion day”;

(bb)in sub-paragraph (1)(d) and (e), after “the territory comprising”, insert “the United Kingdom, Gibraltar,”;

(cc)in sub-paragraph (2)—

(i)for “has a right”, substitute “had the right” each time it occurs;

(ii)for “goes”, substitute “has gone”;

(dd)after sub-paragraph (2), insert—

“(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.”;

(v)in paragraph 9(13) (EC nationals)—

(aa)in sub-paragraphs (1)(c) and (d) and (2), after “the territory comprising”, insert “the United Kingdom, Gibraltar,”;

(bb)after sub-paragraph (3), insert—

“(4) Any description of person who would have been eligible under this paragraph immediately before IP completion day is to be eligible on and after IP completion day.”;

(vi)in paragraph 10 (EC nationals)—

(aa)in sub-paragraphs (1)(a) and (2)(14), omit “other than a United Kingdom national”;

(bb)in sub-paragraph (1)(d), after “the territory comprising”, insert “the United Kingdom, Gibraltar,”;

(vii)in paragraph 11 (children of Swiss nationals)—

(aa)sub-paragraphs (a), (b), (c) and (d) are renumbered as sub-paragraph (1)(a), (b), (c) and (d);

(bb)in sub-paragraph (1)(c) and (d) as so renumbered, after “the territory comprising”, insert “the United Kingdom, Gibraltar,”;

(cc)after sub-paragraph (1)(d) as so renumbered, insert—

“(2) Any description of person who would have been eligible under this paragraph immediately before IP completion day is to be eligible on and after IP completion day.”;

(viii)in paragraph 12(c) (children of Turkish workers), after “the territory comprising”, insert “the United Kingdom, Gibraltar,”.

Amendment of Schedule 5

13. Schedule 5 (financial assessment) is amended as follows.

(a)In paragraph 1(1)(n)(15) (definitions)—

(i)in sub-paragraph (ii), for “another Member State”, substitute “a Member State”;

(ii)for sub-paragraph (iii), substitute—

“(iii)where the legislation of—

(aa)the United Kingdom and one or more Member States; or

(bb)more than one Member State

(b)In paragraph 2(1)(g) (independent eligible student), after “residing outside”, insert “the United Kingdom, Gibraltar and”.

(c)In the following paragraphs, for “another Member State”, substitute “a Member State”—

(i)paragraph 4(1)(b)(16) (calculation of eligible student’s residual income);

(ii)paragraph 5(17) (calculation of parent’s residual income)—

(aa)sub-paragraph (2)(a);

(bb)sub-paragraph (6) each time it occurs;

(cc)sub-paragraph (7);

(iii)paragraph 7 (calculation of parent’s partner’s residual income)—

(aa)sub-paragraph (1)(a);

(bb)sub-paragraph (7) each time it occurs;

(cc)sub-paragraph (8).

Amendment of the Student Fees (Qualifying Courses and Persons) Regulations (Northern Ireland) 2007

14. The Student Fees (Qualifying Courses and Persons) Regulations (Northern Ireland) 2007(18) are amended as follows.

(a)In the Schedule(19)—

(i)in paragraph 1 (interpretation: general) at the appropriate place, insert the following definitions—

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

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

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

(aa)omit “other than the United Kingdom” each time it occurs;

(bb)in the definition of “overseas territories”, after “French Southern and Antarctic Territories;”, insert “Gibraltar;”;

(cc)for the definition of “right of permanent residence”, substitute—

““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, A would have acquired such right under Directive 2004/38 as it had effect immediately before IP completion day;”;

(ii)in sub-paragraph (5), after “an area”, insert “other than the United Kingdom or Gibraltar”;

(iii)in sub -paragraph (3) (interpretation: ordinarily resident)—

(aa)for “the territory comprising the European Economic Area and Switzerland”, substitute “the territory comprising the United Kingdom, Gibraltar, the European Economic Area and Switzerland”;

(bb)for “the territory comprising the European Economic Area, Switzerland and the overseas territories”, substitute “the territory comprising the United Kingdom, the European Economic Area, Switzerland and the overseas territories”;

(cc)for “the territory comprising the European Economic Area, Switzerland, Turkey and the overseas territories”, substitute “the territory comprising the United Kingdom, the European Economic Area, Switzerland, Turkey and the overseas territories”;

(iv)in sub-paragraph (4), after “the territory comprising”, insert “the United Kingdom, Gibraltar,” each time it occurs.

(b)in paragraph 3(20) (persons who are settled in the United Kingdom) for sub-paragraph (a), substitute—

“(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 course; or

(i)in sub-paragraph (d), after “the territory comprising”, insert “the United Kingdom,”;

(c)in paragraph 6(1)(c)(21) (workers, employed persons, self-employed persons and their family members), after “the territory comprising”, insert “the United Kingdom,”;

(d)in paragraph 7(22) (workers, employed persons, self-employed persons and their family members)—

(i)sub-paragraphs (a), (b) and (c) are renumbered as sub-paragraph (1)(a), (b) and (c);

(ii)in sub-paragraph (1)(b) as so renumbered, after “the territory comprising”, insert “the United Kingdom,”;

(iii)after sub-paragraph (1)(c) as so renumbered, insert—

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

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

(i)in sub-paragraph (1)(23)—

(aa)in paragraph (b), after “right of residence”, insert “before IP completion day”;

(bb)in paragraph (d), after “the territory comprising”, insert “the United Kingdom,”;

(cc)in paragraph (e), after “the territory comprising”, insert “the United Kingdom, Gibraltar,”;

(ii)in sub-paragraph (2)—

(aa)for “has a right”, substitute “had a right” each time it occurs;

(bb)for “goes”, substitute “has gone”;

(iii)after sub-paragraph (2), insert—

(f)in paragraph 9(24) (EC nationals)—

(i)in sub-paragraph (1)(a)(i), omit “other than a United Kingdom national”;

(ii)in sub-paragraph (1)(c), after “the territory comprising”, insert “the United Kingdom,”;

(iii)for sub-paragraph (1A), substitute—

“(1A) 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.”;

(iv)after sub-paragraph (2), insert—

“(3) Any description of person who would have fallen within this paragraph immediately before IP completion day is to be treated as falling within this paragraph on and after IP completion day.”;

(g)in paragraph 9A(25) (EC nationals)—

(i)in sub-paragraph (1)(a), omit “other than a United Kingdom national”;

(ii)in sub-paragraph (1)(d), after “the territory comprising”, insert “the United Kingdom,”;

(h)in paragraph 10(26) (children of Swiss nationals)—

(i)sub-paragraphs (a), (b), (c) and (d) are renumbered as sub-paragraph (1)(a), (b), (c) and (d);

(ii)in sub-paragraph (1)(c) as so renumbered, after “the territory comprising”, insert “the United Kingdom,”;

(iii)in sub-paragraph (1)(d) as so renumbered, after “the territory comprising”, insert “the United Kingdom, Gibraltar,”;

(iv)after sub-paragraph (1)(d) as so renumbered, insert—

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

(i)in paragraph 11(c)(27) (children of Turkish workers), after “the territory comprising”, insert “the United Kingdom,”.

Sealed with the Official Seal of the Department for the Economy on 1 December 2020.

Ms Heather Cousins

A senior officer of the Department for the Economy

EXPLANATORY NOTE

(This note is not part of the Regulations)

These Regulations amend the Education (Student Support) (No.2) Regulations (Northern Ireland) 2009 (S.R. 2009/373) (“the Student Support Regulations”) and the Student Fees (Qualifying Courses and Persons) Regulations (Northern Ireland) 2007 (S.R. 2007/328).

The principal amendments which these Regulations make to the Student Support Regulations ensure that references continue to operate effectively following the withdrawal of the United Kingdom from the European Union.

Regulation 2 revokes regulations 2-13 of the Education (Student Fees and Support) (Amendment) (Northern Ireland) (EU Exit) Regulations 2019 S.I. 2019/387 which were prepared for a “no-deal” EU Exit and do not reflect amendments required to implement the EU withdrawal agreement, EEA EFTA separation agreement and the Swiss citizens’ rights agreement.

Regulation 4 omits the definition of “right of permanent residence”, from regulation 2 of the Student Support Regulations. The term will be defined in Schedule 2 (see Regulation 12(a)(i)(bb)).

Regulations 6 and 13 amend references to “Member State” in provisions relating to the calculation of students’ income, to ensure that these references continue to operate effectively following the withdrawal of the United Kingdom from the European Union.

Regulation 12 amends definitions and references relating to the European Economic Area and the European Union which are used in Schedule 2 to the Student Support Regulations, to ensure that these definitions and references continue to operate effectively following the withdrawal of the United Kingdom from the European Union.

Regulation 12(a)(i)(bb) inserts a new definition of “right of permanent residence” to reflect the fact that on and after IP completion day Directive 2004/38/EC (the “Directive”) will no longer have force in the UK and is replaced by rights under the EU withdrawal agreement, EEA EFTA separation agreement or Swiss citizens’ rights agreement, as implemented by the residence scheme immigration rules (as defined in section 17(1) of the European Union (Withdrawal Agreement) Act 2020).

Regulation 12(b)(i) amends paragraph 3 of Schedule 2. Students who have acquired the right of permanent residence under Article 15 of the EU withdrawal agreement or Article 14 of the EEA EFTA separation agreement or the Swiss citizens’ rights agreement but have not obtained settled status under the residence scheme immigration rules, must be treated as if they have acquired the right of permanent residence if they meet the requirements in 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. This amendment ensures that those students are eligible for student support on the same basis as if they had right of permanent residence.

Regulation 12(b)(iii) amends paragraph 7 of Part 2 of Schedule 2, which confers eligibility on the children of EEA workers. This regulation adds a new sub-paragraph (2) to paragraph 7, which provides that any description of person who would have been eligible under that paragraph immediately before IP completion day is to be eligible on and after IP completion day. Regulation 12(b)(v)(bb) also makes similar provision in relation to EU nationals and their family members, who, after IP completion day, may no longer fall within paragraph 9 of Part 2 of Schedule 2, and regulation 12(b)(vii)(cc) makes similar provision in relation to children of Swiss nationals who, after IP completion day, may no longer fall within paragraph 11 of that Schedule.

Regulation 12(b)(iv) amends paragraph 8 of Part 2 of Schedule 2. This paragraph covers students who have previously exercised free movement rights under the Directive, which ceases to have effect on IP completion day.

Regulations 5,8, 9, 10, and 11 are consequential on regulation 12 and amend regulations 18, 83, 106, 123, and 151 of the Student Support Regulations. Regulations 18, 83, 106, 123 and 151 stipulate that a student who becomes a family member of an EU national during the course of an academic year may qualify for support in respect of that academic year. The amendments made by regulations 5, 8, 9, 10 and 11 extend this position to a student who becomes a family member of a person who is eligible by virtue of the new provision in paragraph 9(4) of Part 2 of Schedule 2. This does not apply if the person in respect of whom the student is a family member is themselves only eligible as a family member. Regulations 5, 7, 8, 9, 10 and 11 amend regulations 18, 74, 83, 106, 123 and 151 of the Student Support Regulations, where they currently refer to a person acquiring the right of permanent residence so that they will instead refer to a student becoming a person described in paragraph 3(a) of Schedule 2 to reflect the amendment made in regulation 12(b)(i).

Regulation 14 makes similar provisions in relation to the Student Fees (Qualifying Courses and Persons) Regulations (Northern Ireland) 2007 to regulation 12.

(1)

Formerly the Department for Employment and Learning; see Article 6(1)(c) of the Departments (Transfer of Functions) Order (Northern Ireland) 2016 (S.R. 2016 No. 76).

(2)

S.I. 1998/1760 (N.I. 14). Article 3 was amended by the Learning and Skills Act 2000 (c.21), section 147(3)(a) and (b), the Student Loans (Amendment) Act (Northern Ireland) 2001, (c.2 (N.I.)), s.1(1), the Income Tax (Earnings and Pensions) Act 2003 (c.1), Schedule 6, the Finance Act 2003, (c.14), s. 147(4), the Higher Education (Northern Ireland) Order 2005, (S.I. 2005/1116 (N.I. 5)), Articles 11 and 12 and the Schedule, and by the Financial Services and Markets Act 2000 (Regulated Activities) (Amendment) (No.2) Order 2013, (S.I. 2013/1881), Schedule 1.

(3)

S.I. 2005/1116 see Article (2) for definitions of “the Department”, “prescribed” and “regulations”.

(4)

S.I. 2019/387.

(5)

S.R. 2009/373, amended by S.R. 2010/383, S.R. 2012/ 62 and 398, S.R. 2013/28 and 223, S.R. 2014/97 and 309, S.R. 2016/21, S.R. 2017/ 7 and 43, S.R. 2018/ 35, S.R. 2019/35 and 102 and S.R. 2020/79.

(6)

Regulation 18 was amended by Order 2011/1043 and S.R. 2019/35

(7)

Regulation 43(1)(ge) was amended by S.R. 2012/398 and S.R. 2014/309. 2007 c.3 section 23 was amended by the Finance Act 2009 (c.10), Schedule 1, para 6(o)(i) and the Finance Act 2013 (c29), Schedule 3, para 2(2). 2003 c.1; section 401 was amended by S.I. 2005/3229, S.I. 2011/1037 and S.I. 2014/211.

(8)

Regulation 83(2) was amended by Order 2011/1043 and S.R. 2019/35

(9)

Regulation 106(4) was amended by Order 2011/1043 and S.R. 2019/35

(10)

Regulation 123(3) was amended by Order 2011/1043 and S.R. 2019/35

(11)

Regulation 151 was amended by S.R.s 2017/7 and 2019/35

(12)

Paragraph 1 was amended by S.R.2010/383. Section 33(2A) was inserted by para. 7 of Schedule 4 to the Brutish Nationality Act 1981 (c.61). Cm.4904. S.Rs. 2012 Nos. 62 and 398 and Order 2011/1043

(13)

Paragraph 9 was amended by Order 2011/1043 and S.R. 2017/7

(14)

Paragraph 10 was amended by Order 2011/1043

(15)

Paragraph 1(1)(n) was substituted by S.R. 2014/209 and further amended by S.R 2020/79. 2007 c.3; section 23 was amended by the Finance Act 2009 (c.10), Schedule 1, para. 6(o)(i) and the Finance Act 2013 (c.29), Schedule 3, para. 2(2). 2003 c.1; section 401 was amended by S.I.s 2005/3229, 2011/1037 and 2014/211.

(16)

Paragraph (4)(1)(b) was amended by S.R. 2014/309. Section 188 was amended by the Finance Act 2007 (c.11), sections 68, 69 and 114 and Schedules 18, 19 and 27.

(17)

Paragraph (5) was amended by S.R. 2013/223, 2014/309, 2016/21, 2017/43, 2020/79.

(18)

S.R. 2007/328 as amended by S.R. 2007/375, S.R. 2011/70 and 376 and S.R. 2013/ 37.

(19)

The Schedule was amended by S.R. 2007/. 375, S.R. 2011 Nos.70 and 376 and S.R. 2013 No.37.

(20)

Paragraph 3 was amended by S.R. 2007/375.

(21)

Paragraph 6 was amended by S.R. 2007/375

(22)

Paragraph 7 was amended by S.R. 2007/375

(23)

Sub paragraph d was amended by S.R. 2007/375

(24)

Paragraph 9 was amended by S.R. 2007/375, 2011/376 and 2013/37

(25)

Paragraph 9A was amended by Order 2011/1043 and S.R. 2007/375

(26)

Paragraph 10 was amended by S.R. 2007/375

(27)

Paragraph 11 was amended by S.R. 2007/375