The Education (Fees and Awards) (Scotland) Regulations 2007

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 that student–

(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 3 year period referred to in regulation 5(a).

3.  A person shall be an excepted student if that student–

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

(b) 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(1), as extended by the EEA agreement; and

(c) has been ordinarily resident in the territory comprising the European Economic Area and Switzerland throughout the 3 year period referred to in regulation 5(a).

4.—(1) A person shall be an excepted student if that student–

(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 3 year period referred to in regulation 5(a); and

(d) in the case where their ordinary residence referred to in sub-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-sub-paragraph (c).

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

(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(2) (or corresponding provisions under the EEA agreement or the Switzerland Agreement(3);

(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 that person is a national or of which the person in relation to whom that person is a family member is a national.

5.  A person shall be an excepted student if that person is–

(a) a refugee who has been ordinarily resident in the United Kingdom and Islands at all times since that person 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 that person–

(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 that person is considered not to qualify for recognition as a refugee, it is thought right to allow that person to enter or remain in the United Kingdom and that person has been granted leave to enter or remain accordingly; and

(ii) been ordinarily resident in the United Kingdom and Islands at all times since that person 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 that person–

(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 that person was first granted temporary protection.

8.  A person shall be an excepted student if that person–

(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 5(a);

(c) has been ordinarily resident in the United Kingdom and Islands throughout the 3 year period preceding that date; and

(d) in the case where their 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 that person–

(a) is a non UK EC national or an EU overseas territories national or the family member of either;

(b) has been ordinarily resident in the territory comprising the European Economic Area, Switzerland or the EU overseas territories throughout the 3 year period referred to in regulation 5(a); and

(c) their 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 that person–

(a) is the child of a Swiss national in respect 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 Switzerland throughout the 3 year period referred to in regulation 5(a); and

(c) in the case where their 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).

11.  A person shall be an excepted student if–

(a) that person has not been ordinarily resident in the United Kingdom and Islands throughout the 3 year period referred to in regulation 5(a); or

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

(c) by reason only that that person, their spouse or civil partner, or either of their parents, or in the case of a dependant direct relative in the ascending line, the child upon whom that person was dependent or that child’s spouse or civil partner, was temporarily either employed or studying 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 that person fails to satisfy the criteria specified in paragraph 2(b), 3(c), 4(1)(c), 8(c), 9(b) or 10(b) by reason only that that person, or their spouse or civil partner, or either of their parents, or in the case of a dependant relative in the ascending line, their child or child’s spouse or civil partner, was temporarily either employed or studying elsewhere.

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

14.  A person shall be an excepted student if that person is a British Overseas Territories national or the family member of such a national and has been ordinarily resident in either the United Kingdom or any of the British Overseas Territories throughout the 3 year period referred to in regulation 5(a).

15.  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 that person receives an account in respect of them.

Regulation 10

SCHEDULE 2 POST-GRADUATE AGRICULTURAL STUDENTSHIPS – EXCEPTED CANDIDATES

1.—(1) It shall not be lawful in pursuance of regulation 10 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 that person–

(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 3 years immediately preceding the relevant date.

3.  A person shall be an excepted candidate if that person–

(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 ordinarily resident in the territory comprising the European Economic Area and Switzerland throughout the period of 3 years immediately preceding the relevant date.

4.—(1) A person shall be an excepted candidate if that person–

(a) is settled in the United Kingdom within the meaning given by section 33(2A) of the Immigration Act 1971(4);

(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, was 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 3 years immediately preceding the relevant date; and

(e) in the case where their 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 and 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 that person–

(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(5) (or corresponding provisions under the EEA agreement or the Switzerland Agreement(6)); 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 that person is a national or of which the person in relation to whom that person 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 that person was recognised as a refugee, and the spouse, civil partner or 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 Secretary of State for the Home Department that, although that person is considered not to qualify for recognition as a refugee, it is thought right to allow that person to enter or remain in the United Kingdom and that person has been granted leave to enter or remain accordingly; and

(ii) been ordinarily resident in the United Kingdom and Islands at all times since that person 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 that person–

(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 that person was first granted temporary protection.

8.  A person shall be an excepted candidate if that person–

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

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

(c) has been ordinarily resident in the United Kingdom and Islands throughout the 3 year period preceding that date; and

(d) in the case where their 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 that person–

(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 Switzerland throughout the 3 year period preceding the relevant date;

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

(d) in the case where their 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 that person does not have the relevant connection with Scotland mentioned in regulation 9, by reason only that that person, their spouse or civil partner, or either of their parents, or, in the case of a dependant relative in the ascending line, their child or child’s spouse or civil partner, was temporarily either employed or studying outside Scotland.

(2) Subject to paragraph 11, a person shall be an excepted candidate if that person fails to satisfy the criteria specified in paragraph 2(b), 3(c), 4(d) or 8(c) by reason only that that person, or their spouse or civil partner, or either of their parents, or, in the case of a dependant relative in the ascending line, their child or child’s spouse or civil partner, was temporarily either employed or studying outside the European Economic Area or Switzerland.

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

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 to adopt rules of eligibility for fees awards which 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 they satisfy the conditions mentioned in sub-paragraph (3).

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

(a) that person has been ordinarily resident in the territory comprising the European Economic Area and Switzerland throughout the 3 year period immediately preceding, 1st August, 1st January, 1st April or 1st July closest to the beginning of the first term of their intended course; and

(b) their 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 that person 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 that person fails to satisfy the criterion specified in paragraph 3(3)(a) by reason only that–

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

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

6.  A person shall be an excepted candidate if the Scottish Ministers are satisfied that the person was born and has spent the greater part of their life in the relevant area and that–

(a) their parents or either of them have been ordinarily resident in the relevant area throughout the specified period and he or she is not an independent student; or

(b) that person has been ordinarily resident in the relevant area for at least 1 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 residence was wholly or mainly for the purposes of receiving full time education.

7.—(1) In paragraph 6(a), “an independent student” means a person who prior to the relevant date–

(a) has attained the age of 25 years;

(b) is married or in a civil partnership;

(c) has no parent living; or

(d) has been self-supporting out of their earnings for periods aggregating not less than 3 years.

(2) A person shall be regarded as having been self-supporting out of their earnings for any period during which that person–

(a) was participating in arrangements for training for the unemployed under any scheme operated, sponsored or funded by any state authority or agency, national, regional or local; or

(b) was in receipt of benefit payable by any state authority or agency, national, regional or local, in respect of a person who is available for employment but who is unemployed; or

(c) was available for employment and had complied with any requirement of registration imposed by a body referred to in paragraphs (a) or (b) as a condition of entitlement for participation in arrangements for training or receipt of benefit; or

(d) received any pension, allowance or other benefit paid by reason of a disability to which that person is subject, or by reason of confinement, injury or sickness, paid by any state authority or agency, national, regional or local, by an employer or any former employer or by any other person; or

(e) held a Scottish Studentship or comparable award; or

(f) could not reasonably be expected to be self-supporting out of their earnings because that person had the care of a person under the age of 18 years who was wholly or mainly financially dependent upon them.

(1)

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).

(2)

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

(3)

Cm. 5639.

(4)

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

(5)

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

(6)

Cm. 5639.