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

Regulation 4

SCHEDULE 3 AMENDMENT OF THE EDUCATION (FEES AND AWARDS) (SCOTLAND) REGULATIONS 1997

Amendment of regulation 2

1.  In regulation 2(1) (interpretation) –

(a) for the definition of “EEA migrant worker”, substitute–

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

(b) omit the definition of “national of a member state of the European Community”; and

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

““Directive 2004/38” means Directive 2004/38/EC of the European Parliament and of the Council(1)on the rights of citizens of the Union and their family members to move and reside freely in the territory of the Member States;”;

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

““EEA frontier self-employed person” means an EEA national who–

(a)

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

(b)

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

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

(a)

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

(b)

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

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

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

““family member” means–

(a)

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

(i)

his or her spouse or civil partner;

(ii)

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

(iii)

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

(b)

in relation to a Swiss employed person, a Swiss frontier employed person, a Swiss frontier self-employed person or a Swiss self-employed person–

(i)

his or her spouse or civil partner;

(ii)

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

(c)

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

(i)

his or her spouse or civil partner;

(ii)

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

(aa)

under the age of 21; or

(bb)

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

(d)

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

(i)

his or her spouse or civil partner;

(ii)

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

(aa)

under the age of 21;

(bb)

dependents of him or her or his or her spouse;

(iii)

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

(e)

in relation to a United Kingdom national, for the purposes of paragraph 4 of Schedule 1 and paragraph 4 of Schedule 2–

(i)

his or her spouse or civil partner;

(ii)

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

(aa)

under the age of 21;

(bb)

dependents of him or her or his or her spouse;

(iii)

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

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

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

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

(a)

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

(b)

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

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

(a)

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

(b)

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

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

Amendment of regulation 6

2.  In regulation 6(b) (relevant connection with the United Kingdom and Islands) after “full time education”, insert “unless the person is settled as referred to in paragraph (c) as a result of residence for full-time education which has led to a right of permanent residence arising under Directive 2004/38 and that person was ordinarily resident in the territory comprising t he European Economic Area and Switzerland immediately prior to the start of that period of residence”.

Amendment of regulation 9

3.  In regulation 9(b) (relevant connection with Scotland) after “full time education”, insert “unless the person is settled as referred to in paragraph (c) as a result of residence for full-time education which has led to a right of permanent residence arising under Directive 2004/38 and that person was ordinarily resident in the territory comprising the European Economic Area and Switzerland immediately prior to the start of that period of residence”.

Regulations 11 to 13

4.  Omit regulations 11 (scope of Part IV) to 13 (authorised eligibility rules).

Amendment of Schedule 1

5.  For Schedule 1 (Fees – Excepte d Students) substitute–

Regulation 7

“SCHEDULE 1 FEES—EXCEPTED STUDENTS

1.   It shall not be lawful in pursuance of regulation 7 to charge higher fees in the case of a student who is an excepted student within the meaning of this Schedule.

2.   A person shall be an excepted student if he or she–

(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) an EEA frontier worker or an EEA frontier self-employed person; or

(iv) a Swiss frontier worker or a Swiss frontier self-employed person; and

(b) has been ordinarily resident in the territory comprising the European Economic Area and Switzerland throughout the three year period referred to in regulation 6(a).

3.   A person shall be an excepted student if he or she–

(a) (i) is the family member of a person mentioned in paragraph 2(a); or

(ii) has a right not to be charged higher fees by virtue of Article 12 of Council Regulation (EEC) No. 1612/68 on the freedom of movement of workers(4), as extended by the EEA Agreement; and

(b) has been ordinarily resident in the territory comprising the European Economic Area and Switzerland throughout the three year period referred to in regulation 6(a).

4.— (1) A person shall be an excepted student if he or she–

(a) is settled in the United Kingdom within the meaning given by section 33(2A) of the Immigration Act 1971;

(b) left the United Kingdom and utilised a right of residence after having been settled in the United Kingdom;

(c) has been ordinarily resident in the territory comprising the European Economic Area and Switzerland throughout the three year period referred to in regulation 6(a); and

(d) in the case where his or her 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 European Economic Area and Switzerland immediately prior to the period of residence referred to in paragraph (c).

(2) For the purposes of this paragraph, a person has utilised a right of residence if he or she–

(a) is–

(i) a United Kingdom national;

(ii) a family member of a United Kingdom national with rights under Article 7 of Directive 2004/38 (or corresponding provisions under the EEA Agreement or the Switzerland Agreement); or

(iii) a person who has a right of permanent residence arising under Directive 2004/38; and

(b) either–

(i) has exercised a right under Article 7 of Directive 2004/38 or any equivalent right under the EEA Agreement or the Switzerland Agreement in a state other than the United Kingdom; or

(ii) in the case of a person who has a right of permanent residence in the United Kingdom arising under Directive 2004/38 , has gone to the state within the territory comprising the European Economic Area and Switzerland of which he or she is a national or of which the person in relation to whom he or she is a family member is a national.

5.   A person shall be an excepted student if he or she is–

(a) a refugee who has been ordinarily resident in the United Kingdom and Islands at all times since he or she was first recognised as a refugee; or

(b) the spouse, civil partner, child of such a refugee.

6.   A person shall be an excepted student if he or she–

(a) 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 he or sh e is considered not to qualify for recognition as a refugee, it is thought right to allow him or her to enter or remain in the United Kingdom and he or she has been granted leave to enter or remain accordingly; and

(ii) been ordinarily resident in the United Kingdom and Islands at all times since he or she was first granted such leave to enter or remain; or

(b) is the spouse, civil partner or child of a person of the kind described in sub-paragraph (a).

7.   A person shall be an excepted student if he or she–

(a) is a person who has been granted temporary protection;

(b) did not attain the age of 18 years prior to the beginning of the current academic year of the student’s course; and

(c) has been ordinarily resident in the United Kingdom and Islands at all times since he or she was first granted temporary protection.

8.   A person shall be an excepted student if he or she–

(a) is a non UK EC national or the child of such a national;

(b) is ordinarily resident in Scotland on the date referred to in regulation 6(a);

(c) has been ordinarily resident in the United Kingdom and Islands throughout the three year period preceding that date; and

(d) in the case where his or her 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 European Economic Area and Switzerland immediately prior to the period of residence referred to in paragraph (c).

9.   A person shall be an excepted student if he or she–

(a) is a non UK EC national or the family member of such a national;

(b) has been ordinarily resident in the territory comprising the European Economic Area and Switzerland throughout the 3 year period referred to in regulation 6(a); and

(c) his or her residence there during any part of that 3 year period has not been wholly or mainly for the purpose of receiving full-time education.

10.   A person shall be an excepted student if he or she–

(a) is the child of a Swiss national in respec t of whom it is not lawful to charge higher fees by virtue of Article 3(6) of Annex 1 to the Switzerland Agreement;

(b) has been ordinarily resident in the territory comprising the European Economic Area and Switzerlandthroughout the 3 year period referred to in regulation 6(a); and

(c) in the case where his or her ordinary residence referred to in sub-paragraph (b) was wholly or mainly for the purpose of receiving full-time education, was ordinarily resident in the territory comprising the European Econom ic Area and Switzerland immediately prior to the period of residence referred to in sub-paragraph (b).

11.   A person shall be an excepted student if–

(a) he or she has not been ordinarily resident in the United Kingdom and Islands throughout the 3 ye ar period referred to in regulation 6(a); or

(b) being a United Kingdom national or a non UK EC national or the child of such a person, he or she has not been ordinarily resident in the European Economic Area or Switzerland throughout that 3 year period,

by reason only that that person, his or her spouse or civil partner, or either of his or her parents, or in the case of a dependant relative in the ascending line, his or her child or child’s spouse or civil partner, was temporarily employed outside the United Kingdom and Islands or, as the case may be, outside the European Economic Area or Switzerland.

12.   A person shall be an excepted student if he or she fails to satisfy the criteria specified in paragraph 2(b), 3(b), 4(1)(c), 8(c), 9(b) or 10(b) b y reason only that that person, or his or her spouse or civil partner, or either of his or her parents, or in the case of a dependant relative in the ascending line, his or her child or child’s spouse or civil partner, was temporarily employed elsewhere.

13.   A person shall be an excepted student if he or she was admitted to his or her course in pursuance of arrangements with an institution outside the United Kingdom for the exchange of students on a fully reciprocal basis.

14.   For the purpose of this Schedule fees shall be considered to be charged on the last date or dates on which they are required to be paid by the student, and not on the date or dates on which the student enters an agreement to pay them or on which he or she receives an acc ount in respect of them.”.

Amendment of Schedule 2

6.  For Schedule 2 (Post-graduate agricultural studentships and Newbattle Abbey College maintenance awards – excepted candidates) substitute–

Regulation 10

“SCHEDULE 2 POST-GRADUATE AGRICULTURAL STUDENTSHIPS – EXCEPTED CANDIDATES

1.— (1) It shall not be lawful in pursuance of regulation 10 or 13 to adopt rules of eligibility for maintenance awards which exclude from eligibility a person who is an excepted candidate within the meaning of this Schedule.

(2) In this Schedule, “the relevant date” means the date of a candidate’s application for a maintenance award.

2.   A person shall be an excepted candidate if he or she–

(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) an EEA frontier worker or an EEA frontier self-employed person; or

(iv) a Swiss frontier worker or a Swiss frontier self-employed person; and

(b) has been ordinarily resident in the territory comprising the European Economic Area and Switzerland throughout the period of three years immediately preceding the relevant date.

3.   A person shall be an excepted candidate if he or she–

(a) is–

(i) the family member of a person mentioned in paragraph 2(a); or

(ii) entitled to support by virtue of Article 12 of Council Regulation (EEC) No. 1612/68 on the freedom of movement of workers, as extended by the EEA Agreement; and

(b) has been ordi narily resident in the territory comprising the European Economic Area and Switzerland throughout the period of three years immediately preceding the relevant date.

4.— (1) A person shall be an excepted candidate if he or she–

(a) is settled in the United Kingdom within the meaning given by section 33(2A) of the Immigration Act 1971;

(b) left the United Kingdom and utilised a right of residence after having been settled in the United Kingdom and, where the person is a national of the United Kingdom, w as ordinarily resident in Scotland immediately prior to exercising that right and any residence in Scotland in the preceding 3 years was not wholly or mainly for the purposes of receiving full-time education;

(c) is ordinarily resident in Scotland on the day on which the first term of the first academic year of the course actually begins;

(d) has been ordinarily resident in the territory comprising the European Economic Area and Switzerland throughout the period of three years immediately preceding the relevant date; and

(e) in the case where his or her ordinary residence referred to in sub-sub-paragraph (d) was wholly or mainly for the purpose of receiving full-time education, was ordinarily resident in the territory comprising the European Economic Area an d Switzerland immediately prior to the period of residence referred to in sub-sub-paragraph (d).

(2) For the purposes of this paragraph, a person has utilised a right of residence if he or she–

(a) is–

(i) a United Kingdom national;

(ii) a family member of a United Kingdom national with rights under Article 7 of Directive 2004/38 (or corresponding provisions under the EEA Agreement or the Switzerland Agreement); or

(iii) a person who has a right of permanent residence arising under Directive 2004/38; and

(b) either–

(i) has exercised a right under Article 7 of Directive 2004/38 or any equivalent right under the EEA Agreement or the Switzerland Agreement in a state other than the United Kingdom; or

(ii) in the case of a person who has a right of permanent residence in the United Kingdom arising under Directive 2004/38, has gone to the state within the territory comprising the European Economic Area and Switzerland of which he or she is a national or of which the person in relation to whom he or she is a family member is a national.

5.   Subject to paragraph 11, a refugee ordinarily resident in the United Kingdom and Islands who has not ceased to be so resident there since he or she was recognised as a refugee, and the spouse, civil partneror child of such a refugee, shall be an excepted candidate.

6.   Subject to paragraph 11, a person who–

(a) 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 Secret ary of State for the Home Department that, although he or she is considered not to qualify for recognition as a refugee, it is thought right to allow him or her to enter or remain in the United Kingdom and he or she has been granted leave to enter or rema in accordingly;and

(ii) been ordinarily resident in the United Kingdom and Islands at all times since he or she was first granted such leave to enter or remain; or

(b) is the spouse, civil partner or child of a person of the kind described in sub-paragraph (a).

7.   A person shall be an excepted candidate if he or she–

(a) is a person who has been granted temporary protection;

(b) has not attained the age of 18 years on the relevant date; and

(c) has been ordinarily resident in the United Kingdom and Islands at all times since he or she was first granted temporary protection.

8.   A person shall be an excepted candidate if he or she–

(a) is a non UK EC national or the child of such a national;

(b) is ordinarily resident in Scotland on the relevant;

(c) has been ordinarily resident in the United Kingdom and Islands throughout the three year period preceding that date; and

(d) in the case where his or her ordinary 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 the European Economic Area and Switzerland immediately prior to the period of residence referred to in sub-paragraph (c).

9.   A person shall be an excepted candidate if he or she–

(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 Switzerland Agreement;

(b) has been ordinarily resident in the territory comprising the European Economic Area and Switzerlandthroughout the three year period preceding that the relevant date;

(c) is ordinarily resident in Scotland on the relevant date; and

(d) in the case where his or her ordinary residence referred to in sub-paragraph (b) was wholly or mainly for the purpose of receiving full-time education, was ordinarily resident in the territory comprising the European Economic Area and Switzerland immediately prior to the period of residence referred to in sub-paragraph (b).

10.— (1) Subject to paragraph 11, a person shall be an excepted candidate for the purposes of Part III if he or she does not have the relevant connection with Scotland mentioned in regulation 9, by reason only that–

(a) that person, his or her spouse or civil partner, or either of his or h er parents, or, in the case of a dependant relative in the ascending line, his or her child or child’s spouse or civil partner, was temporarily employed outside Scotland; or

(b) that person, or his or her spouse or civil partner or either of his or her parents, or, in the case of a dependant relative in the ascending line, his or her child or child’s spouse or civil partner, was temporarily receiving full-time education outside Scotland.

(2) Subject to paragraph 11, a person shall be an excepted candidate if he or she fails to satisfy the criteria specified in paragraph 2(b), 3(b), 4(b) or 8(b) by reason only that–

(a) that person, or his or her spouse or civil partner, or either of his or her parents, or, in the case of a dependant relative in the ascending line, his or her child or child’s spouse or civil partner, was temporarily employed outside the European Economic Area or Switzerland; or

(b) that person, or his or her spouse or civil partner, or either of his or her parents, or, in the case of a dependant relative in the ascending line, his or her child or child’s spouse or civil partner, was temporarily receiving full-time education outside the European Economic Area or Switzerland.

11.   Such persons as are mentioned in paragraphs 5, 6, or 10 sh all be excepted candidates only where the maker of the awards has so determined.”.

Amendment of Schedule 3

7.  In Schedule 3 (fees awards – excepted candidates) substitute–

Regulation 10

“SCHEDULE 3 FEES AWARDS – EXCEPTED CANDIDATES

1.   In this Schedule “the relevant date” means the date of a candidate’s application for a fees award.

2.   It shall not be lawful in pursuance of regulation 10 or 13 to adopt rules of eligibility for fees awardswhich exclude from eligibility a person who is an excepted candidate within the meaning of this Schedule.

3.— (1) A person who is an excepted candidate within the meaning of Schedule 2 shall be an excepted candidate within the meaning of this Schedule.

(2) Subject to paragraph 4, a person who–

(a) is a non UK EC national; or

(b) a family member of such a national,shall be an excepted candidate if he or she satisfies the conditions mentioned in sub-paragraph (3).

(3) The conditions referred to in sub-paragraph (2) are that–

(a) he or she has been ordinarily resident in the territory comprising the European Economic Area and Switzerland throughout the 3 year period immediately preceding 1st September, 1st January or 1st April closest to the beg inning of the first term of his or her intended course; and

(b) his or her residence there during any part of that 3 year period has not been wholly or mainly for the purpose of receiving full-time education.

4.   A candidate who would, but for this paragraph, be an excepted candidate by virtue of paragraph 3(2) and (3) shall not be an excepted candidate in a case where rules of eligibility confine awards to candidates having a relevant connection with part only of the United Kingdom and Islands and he or she is, on the relevant date, ordinarily resident in some other part of the United Kingdom and Islands.

5.   A person shall be an excepted candidate if he or she fails to satisfy the criterion specified in paragraph 3(3)(a) by reason only that–

(a) that person, or his or her spouse or civil partner, or either of his or her parents or, in the case of a dependant relative in the ascending line, his or her child or child’s spouse or civil partner, was temporarily employed outside the European Economic Area or Switzerland, or

(b) that person, or his or her spouse or civil partner, or either of his or her parents, or, in the case of a dependant relative in the ascending line, his or her child or child’s spouse or civil partner, was temporarily receiving full-time education outside the European Economic Area or Switzerland.”.

(1)

O.J. No. 158, 30.04.04, p.77.

(2)

Cm. 2073.

(3)

Cm. 2183.

(4)

O.J. No. L 257, 19.10.68, p.2 (O.J./S.E. 1968(II) p.475), amended by Council Regulation (EEC) No 2434/92 (O.J. No. L 245, 26.8.92, p.1).