The Education (Fees and Awards) Regulations 1997

Explanatory Note

(This note is not part of the Regulations)

These Regulations, which come into force on 1st September 1997, replace the Regulations revoked by regulation 8. The drafting has been substantially altered, with only a few changes of substance. These changes will be noted below.

The Regulations provide that in the cases mentioned below it shall be lawful to differentiate between some or all of the persons referred to in the Schedule and anyone else. Such differentiation might otherwise be unlawful under the Race Relations Act 1976. Nothing in the Regulations is to be construed as rendering unlawful anything done which would have been lawful had the Regulations not been made (regulation 3).

The persons mentioned in the Schedule include those who have a connection with the United Kingdom and Islands. The connection required for the first time includes settlement in the United Kingdom within the meaning of the Immigration Act 1971. Settlement is defined in the Immigration Act as being ordinarily resident in the United Kingdom without being subject under the immigration laws to any restriction on the period for which the person in question may stay. The connection required continues to include ordinary residence in the United Kingdom and Islands other than for the purposes of receiving full-time education for the period of three years before a relevant date.

Other persons mentioned in the schedule include those who are excepted from the requirement of having a connection with the United Kingdom and Islands, including refugees, those given exceptional leave to remain in the United Kingdom, persons taking part in exchange programmes, nationals of member States of the European Community and their children who have been ordinarily resident in the EEA other than for the purposes of receiving full-time education for three years, and European Economic Area migrant workers, their spouses and children, who have been ordinarily resident in the EEA other than for the purposes of receiving full-time education for three years. New provision has been made to ensure that United Kingdom nationals who are EEA migrant workers are entitled to be treated in the same way as other migrant workers. No provision is made for persons who have recently become settled in the United Kingdom pursuant to a newly acquired right of abode, as was formerly the case.

A person is considered to be ordinarily resident in an area if he would have been so resident at the relevant time but for the fact that he, his spouse, his parent, guardian, or any other person having parental responsibility for him, or any person having care of him while he is a child, is temporarily employed outside the area (regulation 2(4)). For the purposes of eligibility for certain awards he will also be considered to be resident if he would have been so resident but for the fact that he or his spouse was temporarily receiving full-time education outside the area in question (regulation 2(5)).

Regulation 4 relates to tuition and certain other fees in respect of courses, full-time or part-time, provided by institutions within the further or higher education sectors, maintained by local authorities and certain other institutions providing teacher training courses. Persons who are not referred to in the Schedule may be charged higher fees than the persons who are referred to in the Schedule.

Regulation 5 relates to rules of eligibility for discretionary awards made by local education authorities under section 1(6) or 2 of the Education Act 1962. In the case of fees awards eligibility may be confined to all the persons mentioned in the Schedule other than persons with exceptional leave to remain and persons on exchange programmes. In the case of maintenance awards eligibility may be further confined by excluding European nationals and their children from eligibility. The maker of the awards may further confine eligibility by excluding refugees, and persons who have not been ordinarily resident in a relevant area because they were temporarily employed outside that area as mentioned above.

Regulation 6 relates to rules of eligibility for awards made by Research Councils and certain other specified institutions, and makes provision similar to regulation 5. However it is provided that if the maker of the awards so determines, eligibility may be confined to persons who are settled in the United Kingdom and who have been ordinarily resident in Great Britain for three years, rather than to persons who have been ordinarily resident in the United Kingdom and Islands for that period. The maker of the awards may further confine eligibility for persons who meet the requirement of residence in either the United Kingdom or Great Britain to persons who are or will be ordinarily resident in Great Britain, England and Wales, or England. Other categories of person mentioned in the Schedule, in particular refugees, European nationals and their children, and EEA migrant workers, remain eligible on the same basis as provided for in regulation 5.

Regulation 7 relates to the rules of eligibility for postgraduate agricultural studentships made by the Minister of Agriculture, Fisheries and Food or by the Secretary of State for Wales. Again provision is similar to provision made by regulation 5, but for the requirement of residence in the United Kingdom and Islands for three years is substituted a requirement of residence in the United Kingdom for that period, and a requirement that the person is a British or Commonwealth citizen. Again, other categories of person mentioned in the Schedule, in particular refugees, European nationals and their children, and EEA migrant workers, remain eligible on the same basis as provided for in regulation 5.

Transitional provisions ensure that the new requirement of settlement mentioned above will not apply in the case of courses beginning or applications made before 1st September 1998. The removal of the special treatment afforded to certain recently settled persons will also not apply to courses beginning or applications made before that date, or in the case of certain Hong Kong residents before 1st September 2000.