Welsh Statutory Instruments
2007 No. 2310 (W.181)
EDUCATION, WALES
The Education (Fees and Awards) (Wales) Regulations 2007
Laid before the National Assembly for Wales
7 August 2007
Coming into force
31 August 2007
The Welsh Ministers, in exercise of the powers conferred on the Secretary of State and now vested() in them by sections 1 and 2 of the Education (Fees and Awards) Act 1983(), make the following Regulations:
Title, commencement and applicationE+W
1.—(1) The title of these Regulations is the Education (Fees and Awards) (Wales) Regulations 2007.
(2) These Regulations come into force on 31 August 2007 and apply in relation to Wales.
InterpretationE+W
2.—(1) In these Regulations—
“the 2005 Act” (“Deddf 2005”) means the Education Act 2005();
“academic year” (“blwyddyn academaidd”) means the period of twelve months beginning on 1 January, 1 April, 1 July or 1 September of the calendar year in which the academic year of the course in question begins according to whether that academic year begins on or after 1 January and before 1 April, on or after 1 April and before 1 July, on or after 1 July and before 1 August or on or after 1 August and on or before 31 December, respectively;
“award” (“dyfarniad”) means a fees award or a maintenance award or both;
“education” (“addysg”) includes post-graduate research otherwise than in the course of employment;
“employment” (“cyflogaeth”) means full-time or part-time employment;
“[European Union]” means the territory comprised by the Member States of the [European Union] as constituted from time to time;
“European Economic Area” (“Ardal Economaidd Ewropeaidd”) means the area comprised by the EEA States;
“fees award” (“dyfarniad ffioedd”) means an award in respect only of any fees payable other than any element of those fees which is a charge for maintenance;
“HEFCW” (“CCAUC”) means the Higher Education Funding Council for Wales();
“the Islands” (“yr Ynysoedd”) means the Channel Islands and the Isle of Man;
“maintenance award” (“dyfarniad cynnal”) means any award other than a fees award;
“overseas territories” (“tiriogaethau tramor”) means Anguilla; Aruba; Bermuda, British Antarctic Territory; British Indian Ocean Territory; British Virgin Islands; Cayman Islands; Falkland Islands; Faroe Islands; French Polynesia, French Southern and Antarctic Territories; [Gibraltar;] Mayotte; Greenland; Montserrat; Netherlands Antilles (Bonaire, Curaçao, Saba, Sint Eustatius and Sint Maarten); Pitcairn, Henderson, Ducie and Oeno Islands; South Georgia and South Sandwich Islands; [St-Barthélemy]; St Helena and Dependencies (Ascension Island and Tristan de Cunha); St Pierre et Miquelon; the Territory of New Caledonia and Dependencies; Turks and Caicos Islands and Wallis and Futuna;
“post-compulsory education award” (“dyfarniad addysg ôl-orfodol”) means a scholarship, exhibition, bursary or other allowance granted by a local education authority under the Local Education Authority (Post-Compulsory Education Awards)(Wales) Regulations 2002();
“training provider” (“darparwr hyfforddiant”) means a person who provides training for members of the school workforce under Part 3 of the 2005 Act;
(2) Despite section 11 of the Interpretation Act 1978() section 3(2) of the Education (Fees and Awards) Act 1983 (references to the United Kingdom to include references to the Islands) will not apply for the purposes of interpreting these Regulations.
(3) For the purposes of these Regulations, “parent” (“rhiant”) includes a guardian, any other person having parental responsibility for a child and any person having care of a child and “child” (“plentyn”) is to be construed accordingly.
(4) For the purposes of these Regulations, a person is to be treated as ordinarily resident in Wales, Great Britain, the United Kingdom, the [United Kingdom and the Islands], in [the territory comprising the United Kingdom, Gibraltar, the European Economic Area and Switzerland], in [the territory comprising the United Kingdom, the European Economic Area, Switzerland and the overseas territories], or in [the territory comprising the United Kingdom, the European Economic Area, Switzerland, Turkey and the overseas territories] if he or she would have been so resident but for the fact that—
(a)he or she;
(b)his or her spouse or civil partner;
(c)his or her parent; or
(d)in the case of a dependent direct relative in the ascending line, his or her child or child’s spouse or civil partner,
is or was temporarily employed outside the area in question.
(5) For the purposes of paragraph (4), temporary employment 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;
(b)in the case of members of the regular armed forces of an EEA State or Switzerland, any period which they serve outside the territory comprising [the United Kingdom, Gibraltar,] the European Economic Area and Switzerland as members of such forces; and
(c)in the case of members of the regular armed forces of Turkey, any period which they serve outside the territory comprising [the United Kingdom, Gibraltar,] the European Economic Area, Switzerland and Turkey as members of such forces.
(6) For the purposes of regulations 6,7 and 8, a person is to be treated as ordinarily resident in Wales, Great Britain, the United Kingdom, the [United Kingdom and the Islands], in [the territory comprising the United Kingdom, Gibraltar, the European Economic Area and Switzerland], in [the territory comprising the United Kingdom, the European Economic Area, Switzerland and the overseas territories], or in [the territory comprising the United Kingdom, Gibraltar, the European Economic Area, Switzerland and Turkey] if he or she would have been so resident but for the fact that—
(a)he or she;
(b)his or her spouse or civil partner;
(c)his or her parent; or
(d)in the case of a dependent direct relative in the ascending line, his or her child or child’s spouse or civil partner,
was temporarily receiving full-time education outside the area in question.
(7) For the purposes of these Regulations an area [other than the United Kingdom or Gibraltar] which—
(a)was previously not part of the [European Union] or the European Economic Area; but
(b)at any time before or after these Regulations come into force has become part of one or the other or both of these areas,
is to be considered to have always been a part of the European Economic Area.
[(8) For the purposes of these Regulations a person who is ordinarily resident in the United Kingdom as a result of having moved from the Islands for the purpose of undertaking a course is to be considered to be ordinarily resident in the Islands.]
Textual Amendments
Commencement Information
Lawful actsE+W
3.—(1) If discrimination arises from the remission in whole or in part of any fee (on grounds of financial hardship or otherwise), nothing in these Regulations is to be construed as rendering that discrimination unlawful, if it would have been lawful had these Regulations not been made.
(2) If discrimination arises from any rule of eligibility for an award, nothing in these Regulations is to be construed as rendering that discrimination unlawful, if it would have been lawful had these Regulations not been made.
Fee chargingE+W
4.—(1) It will be lawful for the institutions mentioned in paragraph (3) to charge higher fees in the case of a person who does not fall within the Schedule than in the case of a person who does fall within the Schedule.
(2) For the purposes of this regulation a person falls within the Schedule if they fall within it on the first day of an academic year of the course.
(3) The institutions mentioned in this paragraph are institutions—
(a)within the higher education sector, including a constituent college, school or hall of such an institution;
(b)within the further education sector;
(c)which are training providers and are receiving financial support under section 86 of the 2005 Act;
(d)which provide further education and are maintained by a local education authority.
(4) This regulation does not make lawful the charging of a fee which is unlawful by reason of [section 10 of the Higher Education (Wales) Act 2015].
Textual Amendments
Commencement Information
Awards by local education authoritiesE+W
5.—(1) It shall be lawful for a local education authority to adopt rules of eligibility for awards under sections 1(6) or 2 of the Education Act 1962() or for post-compulsory education awards which—
(a)do not take account of regulation 2(4);
(b)confine eligibility in the case of fees awards to those persons who fall within the Schedule, excluding those who fall [within paragraphs 4A, 5 and 5A], or
(c)confine eligibility in the case of maintenance awards to those persons who fall within the Schedule, excluding those who fall [within paragraphs 4A, 5, 5A and 9].
Textual Amendments
Commencement Information
Payments by the Training and Development Agency for Schools and HEFCWE+W
6.—(1) It shall be lawful for the Training and Development Agency for Schools() under section 78 of the 2005 Act and HEFCW under section 86 of the 2005 Act to adopt rules of eligibility for awards by any training provider to which they make grants, loans or other payments which confine eligibility to those persons who fall within the Schedule.
(2) It shall be lawful for a training provider who is receiving financial support under section 78 and or section 86 of the 2005 Act to adopt rules of eligibility for awards which confine eligibility to those persons who fall within the Schedule.
Payments by HEFCWE+W
7.—(1) It shall be lawful for HEFCW to adopt rules of eligibility for awards to be made to students who are being trained (otherwise than by a course leading to a first degree) to teach persons over school age by an institution to which it makes grants, loans or other payments under section 65 of the Further and Higher Education Act 1992 which confine eligibility to those persons who fall within the Schedule.
(2) It shall be lawful for an institution to which HEFCW pays grants, loans or other payments for the purpose described in paragraph (1) to adopt rules of eligibility for awards which confine eligibility to those persons who fall within the Schedule.
Payments by the Welsh MinistersE+W
8.—(1) It shall be lawful for the Welsh Ministers to adopt rules of eligibility for awards by an institution to which they make grants, loans or other payments under section 34 of the Learning and Skills Act 2000 which confine eligibility to those persons who fall within the Schedule.
(2) It shall be lawful for an institution to which the Welsh Ministers pay grants, loans or other payments to adopt rules of eligibility for awards (however described) which confine eligibility to those persons who fall within the Schedule.
RevocationE+W
9.—(1) The following Regulations are revoked in relation to Wales—
(a)The Education (Fees and Awards) Regulations 1997();
(b)The Education (Student Fees and Support) (Switzerland) Regulations 2003();
(c)The Education (Fees and Awards) (Amendment) Regulations 2006(); and
(d)The Education (Fees and Awards) (Amendment) (Wales) Regulations 2006().
Jane E. Hutt
Minister for Children, Education, Lifelong Learning and Skills, one of the Welsh Ministers.
4 August 2007
SCHEDULEE+W
1. For the purposes of this Schedule —E+W
“Directive 2004/38” (“Cyfarwyddeb 2004/38”) means Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004() 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 EFTA separation agreement” (“cytundeb gwahanu EFTA yr AEE”) has the meaning given by section 39(1) of the European Union (Withdrawal Agreement) Act 2020;]
“EEA frontier self-employed person” (“person hunangyflogedig ffin yr AEE”) means an EEA national who —
(a)
is a self-employed person in the United Kingdom; and
(b)
resides in Switzerland or the territory of an EEA State ... 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” (“gweithiwr ffin yr AEE”) means an EEA national who—
(a)
is a worker in United Kingdom; and
(b)
resides in Switzerland or the territory of an EEA State ... 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 migrant worker” (“gweithiwr mudol AEE”) means an EEA national who is a worker, other than an EEA frontier worker, in the United Kingdom;
“EEA national” (“gwladolyn o'r AEE”) means a national of an EEA State ...;
“EEA self-employed person” (“person hunangyflogedig AEE”) means an EEA national who is a self-employed person, other than an EEA frontier self-employed person, in the United Kingdom;
“EEA State” (“Gwladwriaeth AEE”) means a Member State of the European Economic Area;
“employed person” (“person cyflogedig”) means an employed person within the meaning of Annex 1 to the Swiss Agreement;
[“EU national” (“gwladolyn o’r UE”) means a national of a Member State of the European Union;]
“family member” (“aelod o deulu”) means (unless otherwise indicated) —
(a)
in relation to an EEA frontier worker, an EEA migrant worker, an EEA frontier self-employed person or an EEA self-employed person —
(i)
his or her spouse or civil partner;
(ii)
[direct descendants of the person or of the person’s spouse or civil partner who are—
(aa)
under the age of 21; or
(bb)
dependants of the person or the person’s spouse or civil partner; or]
(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; or
(ii)
his or her child or the child of his or her spouse or civil partner;
(c)
in relation to an [EU national] who falls within Article 7(1)(c) of Directive 2004/38 —
(i)
his or her spouse or civil partner; or
(ii)
direct descendants of his or her or of his or her spouse or civil partner who are—
(aa)
under the age of 21; or
(bb)
dependants of his or her or of his or her spouse or civil partner;
(d)
in relation to an [EU national] who falls within Article 7(1)(b) of Directive 2004/38 —
(i)
his or her spouse or civil partner; or
(ii)
direct descendants of his or her or of his or her spouse or civil partner who are—
(aa)
under the age of 21; or
(bb)
dependants of his or her or of his or her spouse or civil partner;
(iii)
dependent direct relatives in his or her ascending line or that of his or her spouse or civil partner;
(e)
in relation to a United Kingdom national, for the purposes of paragraph 9 —
(i)
his or her spouse or civil partner; or
(ii)
direct descendants of his or her or of his or her spouse or civil partner who are—
(aa)
under the age of 21; or
(bb)
dependants of his or her or of his or her spouse or civil partner;
[“immigration rules” (“rheolau mewnfudo”) means the rules laid before Parliament by the Secretary of State under section 3(2) of the Immigration Act 1971;]
[“person granted stateless leave” (“person y rhoddwyd caniatâd iddo aros fel person diwladwriaeth”) means a person who—
(a)
has extant leave to remain as a stateless person under the immigration rules; and
(b)
has been ordinarily resident in the [United Kingdom and the Islands] throughout the period since the person was granted such leave;]
[“person with leave to enter or remain” (“person sydd â chaniatâd i ddod i mewn neu i aros”) means a person (“P”)—
(a)
who 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 P is not considered to qualify for recognition as a refugee, it is thought right to allow P to enter or remain in the United Kingdom on the grounds of humanitarian protection or discretionary leave, and who has been granted leave to enter or remain accordingly;
(ii)
not applied for refugee status but has been informed in writing by a person acting under the authority of the Secretary of State for the Home Department that it is thought right to allow P to enter or remain in the United Kingdom on the grounds of discretionary leave, and who has been granted leave to enter or remain accordingly;
(iia)
[been granted leave to remain on the grounds of family life under the immigration rules;]
(iii)
been granted leave to remain on the grounds of private life under the immigration rules; or
(iv)
been informed in writing by a person acting under the authority of the Secretary of State for the Home Department that, although P is not considered to qualify for leave to remain on the grounds of private [or family] life under the immigration rules, P has been granted leave to remain outside the rules() on the grounds of Article 8 of the European Convention on Human Rights;
(b)
whose period of leave to enter or remain has not expired or has been renewed and the period for which it was renewed has not expired or in respect of whose leave to enter or remain an appeal is pending (within the meaning of section 104 of the Nationality, Immigration and Asylum Act 2002); and
(c)
who has been ordinarily resident in the [United Kingdom and the Islands] throughout the period since P was granted leave to enter or remain;]
[“person with section 67 leave to remain” (“person sydd â chaniatâd i aros o dan adran 67”) means a person who—
(a)
has extant leave to remain in the United Kingdom under section 67 of the Immigration Act 2016 and in accordance with the immigration rules; and
(b)
has been ordinarily resident in the United Kingdom and the Islands throughout the period since the person was granted such leave;]
“refugee” (“ffoadur”) means a person who is recognised by Her Majesty’s Government as a refugee within the meaning of the United Nations Convention relating to the Status of Refugees done at Geneva on 28 July 1951() as extended by the Protocol thereto which entered into force on 4 October 1967();
[“residence scheme immigration rules” (“rheolau mewnfudo’r cynllun preswylio”) has the meaning given by section 17(1) of the European Union (Withdrawal Agreement) Act 2020;]
[“right of permanent residence” (“hawl i breswylio’n barhaol”) means, in relation to a person (“A”), a right to reside in the United Kingdom permanently without restriction which arises under residence scheme immigration rules, but only where, had the facts pertaining to the determination of A’s right to reside fallen to be considered immediately before implementation period completion day, A would have acquired such right under Directive 2004/38 as it had effect immediately before implementation period completion day;]
“self-employed person” (“person hunan-gyflogedig”) means—
(a)
in relation to an EEA national, a person who is self-employed within the meaning of Article 7 of Directive 2004/38 or the EEA Agreement, as the case may be; or
(b)
in relation to a Swiss national, a person who is a self-employed person within the meaning of Annex 1 to the Swiss Agreement;
“settled” (“wedi setlo”) has the meaning given by section 33(2A) of the Immigration Act 1971();
“Swiss Agreement” (“Cytundeb y Swistir”) 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 21 June 1999() and which came into force on 1 June 2002;
[“Swiss citizens’ rights agreement” (“cytundeb ar hawliau dinasyddion Swisaidd”) has the meaning given by section 39(1) of the European Union (Withdrawal Agreement) Act 2020;]
“Swiss employed person” (“person Swisaidd cyflogedig”) means a Swiss national who is an employed person, other than a Swiss frontier employed person, in the United Kingdom;
“Swiss frontier employed person” (“person Swisaidd cyflogedig y ffin”) means a Swiss national who—
(a)
is an employed person in the United Kingdom; and
(b)
resides in Switzerland or in the territory of an EEA State... 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” (“person Swisaidd hunangyflogedig y ffin”) means a Swiss national who—
(a)
is a self-employed person in the United Kingdom; and
(b)
resides in Switzerland or in the territory of an EEA State ... 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 self-employed person” (“person Swisaidd hunangyflogedig”) means a Swiss national who is a self-employed person, other than a Swiss frontier self-employed person, in the United Kingdom;
“Turkish worker” (“gweithiwr o Dwrci”) means a Turkish national who—
(a)
is ordinarily resident in the United Kingdom; and
(b)
is, or has been lawfully employed in the United Kingdom;
“worker” (“gweithiwr”) means a worker within the meaning of Article 7 of Directive 2004/38 or the EEA Agreement, as the case may be.
Textual Amendments
Commencement Information
Persons who are settled in the United KingdomE+W
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 the United Kingdom;
(c)has been ordinarily resident in the [United Kingdom and the 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 the 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 the Islands] in accordance with regulation 2(4).
Textual Amendments
Commencement Information
3. A person —E+W
[(a)who, on the first day of an academic year of the course, either—
(i)is settled in the United Kingdom by virtue of having acquired the right of permanent residence, or
(ii)falls within Article 18(2) or (3) of the EU withdrawal agreement, Article 17(2) or (3) of the EEA EFTA separation agreement or Article 16(2) or (3) of the Swiss citizens’ rights agreement, but only where that person would have acquired the right to reside permanently in the United Kingdom without restriction under Directive 2004/38 as it had effect immediately before implementation period completion day had the facts pertaining to that person’s right to reside fallen to be considered immediately before implementation period completion day;]
(b)who is ordinarily resident in the United Kingdom on the first day of the first academic year of the course;
(c)who has been ordinarily resident in the [United Kingdom and the Islands] throughout the three-year period preceding the first day of the first academic year of the course; and
(d)who, in a case where his or her 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 United Kingdom,] the [European Economic Area, Switzerland and the overseas territories] immediately before the period of ordinary residence referred to in paragraph (c).
Textual Amendments
Commencement Information
Refugees and their family membersE+W
4.—(1) A person —
(a)who is a refugee;
(b)who is ordinarily resident in the [United Kingdom and the Islands] and has not ceased to be so resident since he or she was recognised as a refugee; and
(c)who is ordinarily resident in the United Kingdom on the first day of the first academic year of the course.
(2) A person —
(a)who is the spouse or civil partner of a refugee;
(b)who was the spouse or civil partner of the refugee on the date on which the refugee made his or her application for asylum;
(c)who is ordinarily resident in the [United Kingdom and the Islands] and has not ceased to be so resident since he or she was given leave to remain in the United Kingdom; and
(d)who is ordinarily resident in the United Kingdom on the first day of the first academic year of the course.
(3) A person —
(a)who is the child of a refugee or the child of the spouse or civil partner of a refugee;
(b)who, on the date on which the refugee made his or her application for asylum, was the child of the refugee or the child of a person who was the spouse or civil partner of the refugee on that date;
(c)who was under 18 on the date on which the refugee made his or her application for asylum;
(d)who is ordinarily resident in the [United Kingdom and the Islands] and has not ceased to be so resident since he or she was given leave to remain in the United Kingdom; and
(e)who is ordinarily resident in the United Kingdom on the first day of the first academic year of the course.
Textual Amendments
Commencement Information
[Persons granted stateless leave and their family membersE+W
4A.—(1) A person granted stateless leave who—
(a)is ordinarily resident in [the United Kingdom] on the first day of the first academic year of the course; and
(b)has been ordinarily resident in the [United Kingdom and the Islands] throughout the three year period preceding the first day of the first academic year of the course.
(2) A person—
(a)who—
(i)is the spouse or civil partner of a person granted stateless leave; and
(ii)on the leave application date, was the spouse or civil partner of a person granted stateless leave;
(b)who is ordinarily resident in [the United Kingdom] on the first day of the first academic year of the course; and
(c)who has been ordinarily resident in the [United Kingdom and the Islands] throughout the three year period preceding the first day of the first academic year of the course.
(3) A person—
(a)who—
(i)is the child of a person granted stateless leave or the child of the spouse or civil partner of a person granted stateless leave; and
(ii)on the leave application date, was the child of a person granted stateless leave or the child of a person who, on the leave application date, was the spouse or civil partner of a person granted stateless leave;
(b)who was under 18 on the leave application date;
(c)who is ordinarily resident in [the United Kingdom] on the first day of the first academic year of the course; and
(d)who has been ordinarily resident in the [United Kingdom and the Islands] throughout the three year period preceding the first day of the first academic year of the course.
(4) In this paragraph, “leave application date” means the date on which a person granted stateless leave made an application to remain in the United Kingdom as a stateless person under the immigration rules.]
Persons with leave to enter or remain and their family membersE+W
5.—(1) A person—
(a)with leave to enter or remain; and
(b)who is ordinarily resident in the United Kingdom on the first day of the first academic year of the course.
(2) A person—
(a)who is the spouse or civil partner of a person with leave to enter or remain;
[(b)who was the spouse or civil partner of the person with leave to enter or remain on the leave application date; and]
(c)who is ordinarily resident in the United Kingdom on the first day of the first academic year of the course.
(3) A person—
(a)who is the child of a person with leave to enter or remain or the child of the spouse or civil partner of a person with leave to enter or remain;
[(b)who, on the leave application date, was the child of the person with leave to enter or remain or the child of a person who was the spouse or civil partner of the person with leave to enter or remain on that date;]
[(c)who was under 18 on the leave application date; and]
(d)who is ordinarily resident in the United Kingdom on the first day of the first academic year of the course.
[(4) In this paragraph, “leave application date” means the date on which the person with leave to enter or remain made the application that led to that person being granted leave to enter or remain in the United Kingdom.]
Textual Amendments
Commencement Information
[Persons with section 67 leave to remainE+W
5A.—(1) A person who—
(a)is a person with section 67 leave to remain;
(b)is ordinarily resident in the United Kingdom on the first day of the first academic year of the course; and
(c)has been ordinarily resident in the United Kingdom and the Islands throughout the three-year period preceding the first day of the first academic year of the course.
(2) A person who—
(a)is the child of a person with section 67 leave to remain;
(b)on the leave application date was under 18 years old and was the child of the person with section 67 leave to remain;
(c)is ordinarily resident in the United Kingdom on the first day of the first academic year of the course; and
(d)has been ordinarily resident in the United Kingdom and the Islands throughout the three-year period preceding the first day of the first academic year of the course.
(3) In this paragraph—
“leave application date” means the date on which the person with section 67 leave to remain made the application that led to that person being granted leave to remain in the United Kingdom.]
Workers, employed persons, self-employed persons and their family membersE+W
[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 the United Kingdom on the first day of the first academic year of the course; and
(c)has been ordinarily resident in the territory comprising [the United Kingdom,] the European Economic Area, Switzerland and the overseas territories 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 falls within paragraph (a)(iv), (v) or (vi) of that sub-paragraph.]
Textual Amendments
Commencement Information
7.— [(1)] A person who—E+W
(a)is ordinarily resident in the United Kingdom on the first day of the first academic year of the course;
(b)has been ordinarily resident in the territory comprising [the United Kingdom,] the [European Economic Area, Switzerland and the overseas territories] 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(), as extended by the EEA Agreement().
[(2) Any description of person who would have fallen within this paragraph immediately before implementation period completion day is to be treated as falling within this paragraph on and after implementation period completion day.]
Textual Amendments
Commencement Information
Persons who are settled in the United Kingdom and have exercised a right of residence elsewhereE+W
8.—(1) A person who—
(a)is settled in the United Kingdom;
(b)left the United Kingdom and exercised a right of residence [before implementation period completion day] after having been settled in the United Kingdom;
(c)is ordinarily resident in the United Kingdom on the day on which the first term of the first academic year actually begins;
(d)has been ordinarily resident in the territory comprising [the United Kingdom,] the [European Economic Area, Switzerland and the overseas territories] throughout the three-year period preceding the first day of the first academic year of the course; and
(e)in a case where his or her ordinary residence referred to in paragraph (d) was wholly or mainly for the purposes of receiving full time education, was ordinarily resident in the territory comprising [the United Kingdom, Gibraltar,] the European Economic Area and Switzerland immediately before the period of ordinary residence referred to in paragraph (d) .
(2) For the purposes of this paragraph, a person has exercised a right of residence if he or she is a United Kingdom national, a family member of a United Kingdom National for the purposes of Article 7 of Directive 2004/38 (or corresponding purposes under the EEA Agreement or Swiss Agreement) or a person who [had the right] of permanent residence who in each case has exercised a right under Article 7 of Directive 2004/38 or any equivalent right under the EEA Agreement or Swiss Agreement in a state other than the United Kingdom or, in the case of a person who is settled in the United Kingdom and [had the right] of permanent residence, if he or she [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 .
[(3) For the purposes of this paragraph, a person had the right of permanent residence if they had a right which arose under Directive 2004/38 to reside permanently in the United Kingdom without restriction.]
Textual Amendments
Commencement Information
[EU nationals] E+W
9.—(1) A person who —
(a)is either —
(i)an [EU national] on the first day of [an academic year] of the course; or
(ii)a family member of a such a person;
(b)is undertaking the course in the United Kingdom;
[(c)[subject to sub-paragraph (1A),] has been ordinarily resident in the territory comprising [the United Kingdom,] the European Economic Area, Switzerland and the overseas territories throughout the three-year period preceding the first day of the first academic year of the course; and]
(d). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(e)subject to sub-paragraph (2), whose ordinary residence in the relevant territory 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.
[(1A) Paragraph (c) of sub-paragraph (1) does not apply to a family member of a person who—
(a)is—
(i)a United Kingdom national who has exercised a right to reside in the territory of a Member State under Article 7(1) of Directive 2004/38; or
(ii)an EU national; and
(b)has been ordinarily resident in the territory comprising the United Kingdom, the European Economic Area, Switzerland and the overseas territories throughout the three-year period preceding the first day of the first academic year of the course.]
(2) Paragraph (e) of sub-paragraph (1) does not apply to a person who is treated as being ordinarily resident in the territory comprising the relevant territory in accordance with regulation 2(4).
[(3) Any description of person who would have fallen within this paragraph immediately before implementation period completion day is to be treated as falling within this paragraph on and after implementation period completion day.]
Textual Amendments
Commencement Information
10.—(1) A person who—E+W
(a)is [an EU national] on the first day of the first academic year of the course;
(b)is ordinarily resident in the United Kingdom on the first day of the first academic year of the course;
(c)has been ordinarily resident in the [United Kingdom and the Islands] throughout the three-year period immediately preceding the first day of the first academic year of the course; and
(d)in a 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 United Kingdom,] the [European Economic Area, Switzerland and the overseas territories] immediately before the period of ordinary residence referred to in paragraph (c).
(2) Where a state accedes to the [European Union] after the first day of the first academic year of the course and a person is a national of that state, the requirement in paragraph (a) of sub-paragraph (1) to be [an EU national] on the first day of the first academic year of the course is treated as being satisfied.
Textual Amendments
Commencement Information
Children of Swiss nationalsE+W
[11.—(1) 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 Swiss Agreement;
(b)is ordinarily resident in the United Kingdom on the first day of the first academic year of the course;
(c)has been ordinarily resident in the territory comprising the United Kingdom, the European Economic Area, Switzerland and the overseas territories throughout the three-year period preceding the first day of the first academic year of the course; and
(d)in a case where the person’s 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 United Kingdom, Gibraltar, the European Economic Area and Switzerland immediately before the period of ordinary residence referred to in paragraph (c).
(2) Any description of person who would have fallen within this paragraph immediately before implementation period completion day is to be treated as falling within this paragraph on and after implementation period completion day.]
Textual Amendments
Commencement Information
Children of Turkish workersE+W
12. A person who—
(a)is the child of a Turkish worker;
(b)is ordinarily resident in the United Kingdom on the first day of the first academic year of the course; and
(c)has been ordinarily resident in the territory comprising [the United Kingdom,] the [European Economic Area, Switzerland, Turkey and the overseas territories] throughout the three year period preceding the first day of the first academic year of the course.
Textual Amendments
Commencement Information
Explanatory Note
These Regulations, which come into force on 31 August 2007, replace the Regulations listed in regulation 9.
The Regulations provide that, in the circumstances described in the Regulations, it shall be lawful to discriminate between some or all of those persons mentioned in the Schedule, and any other person. Such discrimination 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).
Regulation 4 provides that it shall be lawful for the institutions in paragraph (3) to charge higher fees to those people not mentioned in the Schedule, than those fees charged to people mentioned in that Schedule. Regulation 4(4) refers to section 28 of the Higher Education Act 2004. This section sets out the funding conditions that may be imposed on higher education institutions in relation to fees. Section 28 has not yet been commenced. Regulation 4(4) provides that if an institution were to breach a funding condition under section 28, these Regulations will not provide a defence.
Regulation 5 concerns rules of eligibility for discretionary awards made by local education authorities under sections 1(6) or 2 of the Education Act 1962. In the case of awards for fees, eligibility may be confined to everyone in the Schedule save for persons with leave to enter or remain. In the case of maintenance awards, rules of eligibility may exclude persons with leave to enter or remain and EC nationals. Local education authorities may confine eligibility further, by excluding anyone who has not been ordinarily resident in a relevant geographical area temporarily because of work.
Regulations 6, 7 and 8 concern teacher training and certain bodies which fund the provision of education and training. They provide that it shall be lawful for each of the Training and Development Agency for Schools, the Higher Education Funding Council for Wales and the Welsh Ministers, and institutions funded by them, to adopt rules of eligibility for awards which limit eligibility to those mentioned in the Schedule.
Regulation 9 revokes, in relation to Wales, the existing Regulations governing fees and awards and amending Regulations, subject to certain saving provisions.
The persons mentioned in the Schedule include those who are settled in the United Kingdom, refugees, persons with leave to enter or remain in the United Kingdom, migrant workers from the European Economic Area or Switzerland, nationals of Member States of the European Community and children of Swiss nationals and Turkish workers. To be settled in the United Kingdom, a person must be ordinarily resident there without being subject under immigration law to any restriction on the period for which the person may remain.