Prospective
Regulations 4, 84 and 100
1.—(1) For the purposes of this Schedule—E+W
“Directive 2004/38” means Directive 2004/38/EC of the European Parliament and of the Council of 29th April 2004(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;
“EC national” means a national of a Member State of the European Community;
“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—
is a self-employed person in England; and
resides in Switzerland or the territory of an EEA State other than the United Kingdom and returns to his 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—
is a worker in England; and
resides in Switzerland or the territory of an EEA State other than the United Kingdom and returns to his residence in Switzerland or that EEA State, as the case may be, daily or at least once a week;
“EEA migrant worker” means an EEA national who is a worker, other than an EEA frontier worker, in the United Kingdom;
“EEA national” means a national of an EEA State other than the United Kingdom;
“EEA self-employed person” means an EEA national who is a self-employed person, other than an EEA frontier self-employed person, in the United Kingdom;
“EEA State” means a Member State of the European Economic Area;
“employed person” means an employed person within the meaning of Annex 1 to the Swiss Agreement;
“European Economic Area” means the area comprised by the European Community, the Republic of Iceland, the Kingdom of Norway and the Principality of Liechtenstein;
“family member” means—
in relation a national of the United Kingdom who has exercised a right of free movement under article 39 or 43 of the Treaty establishing the European Community or an equivalent right under the EEA Agreement or the Swiss Agreement and is entitled, by virtue of an enforceable Community right, to be treated no less favourably in relation to student support than he would have been had he not exercised that right, an EEA frontier worker, an EEA migrant worker, an EEA frontier self-employed person or an EEA self-employed person—
his spouse or civil partner;
his child or the child of his spouse or civil partner; or
dependent direct relatives in his ascending line or that of his spouse or civil partner;
in relation to a Swiss employed person, a Swiss frontier employed person, a Swiss frontier self-employed person or a Swiss self-employed person—
his spouse or civil partner; or
his child or the child of his spouse or civil partner;
in relation to an EC national who is not self sufficient—
his spouse or civil partner; or
direct descendants of his or of his spouse or civil partner who are—
under the age of 21; or
dependants of his or his spouse or civil partner;
in relation to an EC national who is self-sufficient—
his spouse or civil partner;
direct descendants of his or of his spouse or civil partner who are—
under the age of 21; or
dependents of his or his spouse; or
dependent direct relatives in his ascending line or that of his spouse or civil partner;
“person with leave to enter or remain” means a person who—
has been informed by a person acting under the authority of the Secretary of the State for the Home Department that, although he is considered not to qualify for recognition as a refugee, it is thought right to allow him to enter or remain in the United Kingdom;
has been granted leave to enter or to remain accordingly; and
has been ordinarily resident in the United Kingdom and Islands throughout the period since he was granted leave to enter or remain;
“right of permanent residence” means a right arising under Directive 2004/38 to reside in the United Kingdom permanently without restriction;
“self-employed person” means—
in relation to an EEA national, a person who is self-employed within the meaning of article 7 of Directive 2004/38; or
in relation to a Swiss national, a person who is a self-employed person within the meaning of Annex 1 to the Swiss Agreement;
“self-sufficient” means self-sufficient within the meaning of Article 7(1)(b) of Directive 2004/38;
“settled” has the meaning given by section 33(2A) of the Immigration Act 1971(4);
“Swiss Agreement” means the Agreement between the European Community and its Member States, of the one part, and the Swiss Confederation, of the other, on the Free Movement of Persons signed at Luxembourg on 21st June 1999(5) and which came into force on 1st June 2002;
“Swiss employed person” means a Swiss national who is an employed person, other than a Swiss frontier employed person, in the United Kingdom;
“Swiss frontier employed person” means a Swiss national who—
is an employed person in England; and
resides in Switzerland or in the territory of an EEA State other than the United Kingdom and returns to his 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—
is a self-employed person in England; and
resides in Switzerland or in the territory of an EEA State, other than the United Kingdom, and returns to his residence in Switzerland or that EEA State, as the case may be, daily or at least once a week;
“Swiss self-employed person” means a Swiss national who is a self-employed person, other than a Swiss frontier self-employed person, in the United Kingdom
“worker” means a worker within the meaning of article 7 of Directive 2004/38;
(2) For the purposes of this Schedule, “parent” includes a guardian, any other person having parental responsibility for a child and any person having care of a child and “child” is to be construed accordingly.
(3) For the purposes of this Schedule, a person who is ordinarily resident in England, Wales, Scotland, Northern Ireland or the Islands, as a result of having moved from another of those areas for the purpose of undertaking—
(a)the current course; or
(b)a course which, disregarding any intervening vacation, the student undertook immediately before undertaking the current course,
is to be considered to be ordinarily resident in the place from which he moved.
(4) For the purposes of this Schedule, including the purpose of determining whether a person is settled in the United Kingdom, a person is to be treated as ordinarily resident in England, the United Kingdom and Islands or in the territory comprising the European Economic Area and Switzerland if he would have been so resident but for the fact that—
(a)he;
(b)his spouse or civil partner;
(c)his parent; or
(d)in the case of a dependent directive relative in the ascending line, his child or child’s spouse or civil partner,
is or was temporarily employed outside England, the United Kingdom and Islands or, as the case may be, outside the territory comprising the European Economic Area and Switzerland.
(5) For the purposes of sub-paragraph (4), temporary employment outside of England, the United Kingdom and Islands or the territory comprising the European Economic Area and Switzerland includes—
(a)in the case of members of the regular naval, military or air forces of the Crown, any period which they serve outside the United Kingdom as members of such forces; and
(b)in the case of members of the regular armed forces of an EEA State or Switzerland, any period which they serve outside of the territory comprising the European Economic Area and Switzerland as members of such forces.
(6) For the purposes of this Schedule—
(a)an area which—
(i)was previously not part of the European Community or the European Economic Area; but
(ii)at any time before or after these Regulations come into force has become part of one or other or both of these areas,
is to be considered to have always been a part of the European Economic Area;
(b)a person who acquires the right of permanent residence after the first day of the first academic year of the course is to be considered to have had that status as of the first day of the first academic year of the course; and
(c)a person who becomes the child of a Swiss national after the first day of the first academic year of the course is to be considered to have been such a child as of the first day of the first academic year of the course.
Commencement Information
I1Sch. 1 para. 1 in force at 1.3.2006, see reg. 1(1)
2.—(1) A person who on the first day of the first academic year of the course—
(a)is settled in the United Kingdom other than by reason of having acquired the right of permanent residence;
(b)is ordinarily resident in England;
(c)has been ordinarily resident in the United Kingdom and Islands throughout the three-year period preceding the first day of the first academic year of the course; and
(d)subject to sub-paragraph (2), whose residence in the United Kingdom and Islands has not during any part of the period referred to in paragraph (c) been wholly or mainly for the purpose of receiving full-time education.
(2) Paragraph (d) of sub-paragraph (1) does not apply to a person who is treated as being ordinarily resident in the United Kingdom and Islands in accordance with paragraph 1(4).
Commencement Information
I2Sch. 1 para. 2 in force at 1.3.2006, see reg. 1(1)
3.—(1) A person who on the first day of the first academic year of the course—
(a)is settled in the United Kingdom by virtue of having acquired the right of permanent residence;
(b)is ordinarily resident in England;
(c)has been ordinarily resident in the United Kingdom and Islands throughout the three-year period preceding the first day of the first academic year of the course; and
(d)in a case where his residence leading to the acquisition of the right of permanent residence 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 start of that period of residence.
Commencement Information
I3Sch. 1 para. 3 in force at 1.3.2006, see reg. 1(1)
4. A person who—
(a)is either—
(i)a refugee ordinarily resident in the United Kingdom and Islands who has not ceased to be so resident since he was recognised as a refugee; or
(ii)the spouse, civil partner, child or step-child of a person mentioned in paragraph (i); and
(b)is ordinarily resident in England on the first day of the first academic year of the course.
Commencement Information
I4Sch. 1 para. 4 in force at 1.3.2006, see reg. 1(1)
5. A person who—
(a)is either—
(i)a person with leave to enter or remain; or
(ii)the spouse, civil partner, child or step-child of a person with leave to enter or remain;
(b)is ordinarily resident in England on the first day of the first academic year of the course; and
(c)has been ordinarily resident in the United Kingdom and Islands throughout the three-year period preceding the first day of the first academic year of the course.
Commencement Information
I5Sch. 1 para. 5 in force at 1.3.2006, see reg. 1(1)
6.—(1) A person 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)a family member of a person mentioned in paragraph (i) or (ii);
(iv)an EEA frontier worker or an EEA frontier self-employed person;
(v)a Swiss frontier employed person or a Swiss frontier self-employed person; or
(vi)a family member of a person mentioned in paragraph (iv) or (v);
(b)subject to sub-paragraph (2), is ordinarily resident in England on the first day of the first academic year of the course; and
(c)has been ordinarily resident in the territory comprising the European Economic Area and Switzerland throughout the three-year period preceding the first day of the first academic year of the course.
(2) Paragraph (b) of sub-paragraph (1) does not apply where the person applying for support falls within paragraph (a)(iv), (v) or (vi) of sub-paragraph (1).
Commencement Information
I6Sch. 1 para. 6 in force at 1.3.2006, see reg. 1(1)
7. A person who—
(a)is ordinarily resident in England on the first day of the first academic year of the course;
(b)has been ordinarily resident in the territory comprising the European Economic Area and Switzerland throughout the three-year period preceding the first day of the first academic year of the course; and
(c)is entitled to support by virtue of Article 12 of Council Regulation (EEC) No. 1612/68 on the freedom of movement of workers(6), as extended by the EEA Agreement.
Commencement Information
I7Sch. 1 para. 7 in force at 1.3.2006, see reg. 1(1)
8.—(1) A person who—
(a)is—
(i)a national of the United Kingdom who has exercised a right of free movement within the territory comprising the European Economic Area and Switzerland and is entitled, by virtue of an enforceable Community right, to be treated no less favourably in relation to student support than he would have been treated had he not exercised that right of free movement; or
(ii)a family member of a person mentioned in paragraph (i);
(b)subject to sub-paragraph (2), is ordinarily resident in England on the first day of the first academic year of the course; and
(c)has been ordinarily resident in the territory comprising the European Economic Area and Switzerland throughout the three-year period preceding the first day of the first academic year of the course.
(2) A person who is not ordinarily resident in England on the first day of the first academic year of the course may be treated as satisfying paragraph (b) of sub-paragraph (1) if the Secretary of State is satisfied that the person—
(a)is not so resident for a reason connected with the exercise of the right of free movement referred to in paragraph (a)(i) of sub-paragraph (1); but
(b)is ordinarily resident in England on the day on which the first term of the first academic year of the course actually begins.
(3) For the purposes of this paragraph “right of free movement” means a right of free movement under Article 39 or 43 of the Treaty establishing the European Community or an equivalent right under the EEA Agreement or the Swiss Agreement.
Commencement Information
I8Sch. 1 para. 8 in force at 1.3.2006, see reg. 1(1)
9.—(1) A person who on the first day of the first academic year of the course—
(a)is an EC national or a family member of a such a national;
(b)is—
(i)attending a designated course in England; or
(ii)undertaking a designated part-time course or a designated postgraduate course in England;
(c)has been ordinarily resident in the territory comprising the European Economic Area and Switzerland throughout the three-year period preceding the first day of the first academic year of the course; and
(d)subject to sub-paragraph (2), whose ordinary residence in the territory comprising the European Economic Area and Switzerland has not during any part of the period referred to in paragraph (c) been wholly or mainly for the purpose of receiving full-time education.
(2) Paragraph (d) of sub-paragraph (1) does not apply to a person who is treated as being ordinarily resident in the territory comprising the European Economic Area and Switzerland in accordance with paragraph (1)(4).
Commencement Information
I9Sch. 1 para. 9 in force at 1.3.2006, see reg. 1(1)
10. A person who on the first day of the first academic year of the course—
(a)is an EC national;
(b)is ordinarily resident in England;
(c)has been ordinarily resident in the United Kingdom and Islands throughout the three-year period immediately preceding the first day of the first academic year of the course;
(d)where he is a national of the United Kingdom, has a right to be treated no less favourably than a national of another Member State by virtue of having exercised a Community right of free movement or an equivalent right under the EEA Agreement or Swiss Agreement; and
(e)in a case where his 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 ordinary residence referred to in paragraph (c).
Commencement Information
I10Sch. 1 para. 10 in force at 1.3.2006, see reg. 1(1)
11. A person who on the first day of the first academic year of the course—
(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 Swiss Agreement;
(b)is ordinarily resident in England;
(c)has been ordinarily resident in the territory comprising the European Economic Area and Switzerland throughout the three-year period preceding the first day of the first academic year of the course; and
(d)in a case where his 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 ordinary residence referred to in paragraph (c).
Commencement Information
I11Sch. 1 para. 11 in force at 1.3.2006, see reg. 1(1)
OJ L158, 30.04.2004, p77-123.
Cm. 2073.
Cm. 2183.
1971 c. 77; section 33(2A) was inserted by paragraph 7 of Schedule 4 to the British Nationality Act 1981 (c. 61).
Cm. 4904.
OJ No L257, 19.10.1968, p2 (OJ/SE 1968 (II) p475).