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

Regulation 8

SCHEDULE 7 AMENDMENT OF THE EDUCATION MAINTENANCE ALLOWANCES (SCOTLAND) REGULATIONS 2004

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 the United Kingdom; 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 the United Kingdom; 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 EE A 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;

(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;

(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; and

(e)

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

(i)

his or her spouse or civil partner;

(ii)

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

(aa)

under the age of 21;

(bb)

dependents of him or her or his or her spouse;”;

““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 the United Kingdom; 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 the United Kingdom ; 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 4

2.  In regulation 4 ( amount of education maintenance allowances)(4)–

(a) in paragraph (2) after “holder’s spouse”insert “or the holder’s civil partner”;

(b) in paragraph (3)(b) after “her spouse”insert “or civil partner”; and

(c) for paragraph (4) substitute–

“(4) In paragraphs (2) and (3)–

(a) 'holder’s spouse' shall, where the Scottish Ministers consider it appropriate, include the other member of a couple who are not married to each otherbut who are living together as husband and wife; and

(b) 'holder’s civil partner'shall, where the Scottish Ministers consider it appropriate, include the other member of a couple who are not civil partners of each other but who are living together as civil partners to each other.”.

Amendment of Schedule 1

3.  For Schedule 1 (Persons Eligible for Education Maintenance Allowances) substitute–

Regulation 3(1)

“SCHEDULE 1 PERSONS ELIGIBLE FOR EDUCATION MAINTENANCE ALLOWANCES

1.   A person who–

(a) is ordinarily resident in the United Kingdom and Islands on the qualifying date in relation to the course of education in respect of which he or she seeks an education maintenance allowance;

(b) has been ordinarily resident in the United Kingdom and Islands throughout the period of 3 years preceding the qualifying date; and

(c) is settled in the United Kingdom within the meaning given by section 33(2A) of the Immigration Act 1971(5)on the qualifying date.

2.— (1) A person who is an EEA migrant worker 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) an EEA frontier worker or an EEA frontier self-employed person; or

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

(b) has been ordinarily resident in the territory comprising the European Economic Area and Switzerland throughout the period of 3 years immediately preceding the qualifying date; and

(c) subject to sub-paragraph (2), is ordinarily resident in the United Kingdom and Islands on the qualifying date.

(2) Sub-paragraph (1)(c) does not apply where the person applying for support falls within paragraph (1)(a)(iii) or (iv).

3.— (1) A person who–

(a) is

(i) the family member of a person mentioned in paragraph 2(1)(a); or

(ii) is entitled to support by virtue of Article 12 of the Free Movement Regulation;

(b) has been ordinarily resident in the territory comprising the European Economic Area and Switzerland throughout the period of 3 years immediately preceding the qualifying date; and

(c) subject to sub-paragraph (2), is ordinarily resident in the United Kingdom and Islands on the qualifying date.

(2) Sub-paragraph (1)(c) does not apply where the person applying for support falls within paragraph 2(1)(a)(iii) or (iv).

4.— (1) A person who–

(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) is ordinarily resident in the United Kingdom and Islands on the qualifying date;

(d) has been ordinarily resident in the territory comprising the European Economic Area and Switzerlandthroughout the period of 3 years immediately preceding the qualifying date; and

(e) in the case where his or her ordinary residence referred to in 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 and Switzerland immediately prior to the period of residence referred to in 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 Euro pean 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 who–

(a) at the date the Scottish Ministers received his or her application for an education maintenance allowance is–

(i) 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

(ii) the spouse, civil partner, or child, of such a refugee; and

(b) is ordinarily resident in Scotland on the qualifying date.

6.   A person who–

(a) (i) has 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 fo r the Home Department that although he or she is considered not to qualify for recognition as a refugee, it is thought right to allow that person to enter or remain in the United Kingdom and he or she has been granted leave to enter or remain accordingly;

(ii) has 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; and

(iii) is ordinarily resident in Scotland on the qualifying date; or

(b) is the spouse, civil partner or child of a person of the kind described in sub-paragraph (a) and who is ordinarily resident in Scotland on the qualifying date.

7.   A person who–

(a) at the date the Scottish Ministers received his or her application for an education maintenance allo wance has been granted temporary protection and has been ordinarily resident in the United Kingdom and Islands at all times since he or she was first granted temporary protection;

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

(c) is ordinarily resident in the United Kingdom and Islands on the qualifying date, provided that an education maintenance allowance paid to a person only by virtue of that person qualifying under this paragraph shall not continue beyond the end of any academic year in which that person attains the age of 18 years.

8.   A person who–

(a) subject to sub-paragraph (2), is a non UK EC national or the child of such a person;

(b) is ordinarily resident in the United Kingdom and Islandson the qualifying date;

(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 ful l-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 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 Switzerland Agreement;

(b) has been ordinarily resident in the territory comprising the European Economic Area and Switzerlandthroughout the period of 3 years immediately preceding the qualifying date;

(c) is ordinarily resident in United Kingdom and Islands on the qualifying date; and

(d) in the case where his or her ordinary residence referred to in paragraph (b) was wholly or mainly for the purpose of receiving full-ti me 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 (b).

10.— (1) Subject to sub-paragraph (2), a person to whom, or in res pect of whom, an education maintenance allowance has been paid in accordance with these Regulations within the year immediately preceding the first day of the academic year of the course for which that person is currently seeking an education maintenance a llowance, provided that the current application will not result in such a person being awarded an education maintenance allowance for more than 3 years.

(2) Sub-paragraph (1) shall not preclude the payment of the monetary value of 3 years education mainten ance allowance over a period of 4 years.

(3) Sub-paragraph (1) shall not apply where it would result in the payment of an education maintenance allowance to a person after the end of any academic year in which that person attained the age of 18 years where that person qualified only by virtue of paragraph 7.”.

Amendment of Schedule 2

4.  For Schedule 2 (Ordinary Residence) substitute–

Regulation 3(2)

“SCHEDULE 2 ORDINARY RESIDENCE

1.— (1) For the purposes of paragraph 1(a) and paragraph 8(b) of Schedule 1 a person shall be treated as being ordinarily resident in the United Kingdom and Islands on the qualifying date if the Scottish Ministers are satisfied that he or she was not so resident only because that person, or his or her spouse or civil partner, or either of his or her parents was for the time being–

(a) employed outside the United Kingdom and Islands; or

(b) attending a course of study or undertaking postgraduate research outside the United Kingdom and Islands.

(2) For the purposes of paragraph 1(a) of Schedule 1 and subject to sub-paragraph (3), a person shall not be treated as being ordinarily resident in the United Kingdom and Islands on the qualifying date if the Scottish Ministe rs are satisfied that his or her residence there on that day is in any sense attributable to, or connected with, any period of residence in the United Kingdom and Islands within 3 years immediately preceding the qualifying date as respects any part of which its purpose was wholly or mainly that of receiving full-time education.

(3) Sub-paragraph (2) shall not apply to a person who has acquired settled status in the United Kingdom under the Immigration Act 1971 as a result of residence for full-time educatio n which has led to a right of permanent residence arising under Directive 2004/38.

2.— (1) Sub-paragraphs (2) to (5) shall apply in determining, for the purposes of paragraphs 1(b), 2(1)(b), 3(1)(b), 4(1)(d), 8(c) and 9(b) of Schedule 1 whether a person is to be treated as having been or not having been ordinarily resident for the period specified in those paragraphs (in this paragraph, “the specified period ”) in the United Kingdom and Islands, the European Economic Area or Switzerland (in this paragraph, “the relevant area”).

(2) A person shall not be treated as having been ordinarily resident in the relevant area for the specified period in paragraph 1(b) of Schedule 1, if the Scottish Ministers are satisfied that he or she was resident therein for a ny part of that period wholly or mainly for the purpose of receiving full-time education, unless–

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

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

(3) A person shall not be treated as having been ordinarily resident in the relevant area for the specified period in paragraph 9(b) of Schedule 1 if the Scottish Ministers are satisfied that he or she was resident therein for any part of that period wholly or mainly for the purpose of receiving full-time education, unless that person is treated as ordinarily resident by virtue of sub-paragraph (5).

(4) A person shall be treated as having been ordinarily resident in the relevant area for the specified period if the Scottish Ministers are satisfied that the person was born in and spent the greater part of his or her life in the relevant area and that –

(a) his or her p arents or either of them have been ordinarily resident in the relevant area throughout the specified period and he or she is not an independent person; or

(b) he or she has been ordinarily resident in the relevant area for at least one year of the specified period and, in the case of those qualifying by virtue of paragraph 1 or 9 of Schedule 1, no part of that period of residence was wholly or mainly for the purpose of receiving full-time education.

(5) A person shall be treated as having been ordinarily re sident in the relevant area for the specified period if the Scottish Ministers are satisfied that the person was not actually ordinarily resident in the relevant area for the specified period only because that person, his or her spouse or civil partner, o r either of his or her parents was for the time being–

(a) employed outside the relevant area; or

(b) attending a course of study or undertaking postgraduate research outside the relevant area.

3.   In paragraph 2(4)(a), an “independent person” means a person who prior to the qualifying date–

(a) has been married or in a civil partnership; or

(b) has no parent living.”.

(1)

O.J. No. L 158, 30.04004, p.73.

(2)

Cm. 2073.

(3)

Cm. 2183.

(4)

Regulation 4 was amended by .S.S.I 2005/572, Article 48.

(5)

1971 c. 77; section 33(2A) was inserted by paragraph 7 of Schedule 4 to the British Nationality Act 1981 (c. 61).