The Higher Education (Qualifying Courses, Qualifying Persons and Supplementary Provision) (Wales) Regulations 2015

1.—(1) For the purposes of this Schedule— E+W

“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;

“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(1);

“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 F1 ... and returns to the national’s residence in Switzerland or that EEA State daily or at least once a week;

“EEA frontier worker” (“gweithiwr ffin yr AEE”) means an EEA national who—

(a)

is a worker in the United Kingdom; and

(b)

resides in Switzerland or the territory of an EEA State F1 ... and returns to the national’s residence in Switzerland or that EEA State daily or at least once a week;

“EEA migrant worker” (“gweithiwr mudol o’r 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 F1 ...;

“EEA self-employed person” (“person hunangyflogedig o’r AEE”) means an EEA national who is a self-employed person, other than an EEA frontier self-employed person, in the United Kingdom;

[F2 “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;]

“employed person” (“person cyflogedig”) means an employed person within the meaning of Annex 1 to the Swiss Agreement;

“employment” (“cyflogaeth”) means full-time or part-time employment;

“EU national” (“gwladolyn o’r UE”) means a national of a Member State of the European Union;

“European Economic Area” (“Ardal Economaidd Ewropeaidd”) means the area comprised by the EEA States;

“European Union” (“yr Undeb Ewropeaidd”) means the territory comprised by the Member States of the European Union as constituted from time to time;

“family member” (“aelod o deulu”) means—

(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)

that person’s 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 the ascending line of the person or the person’s 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)

the person’s spouse or civil partner; or

(ii)

the person’s child or the child of the person’s spouse or civil partner;

(c)

in relation to an EU national who falls within Article 7(1)(c) of Directive 2004/38—

(i)

the national’s spouse or civil partner; or

(ii)

direct descendants of the national or the national’s spouse or civil partner who are—

(aa)

under the age of 21; or

(bb)

dependants of the national or the national’s spouse or civil partner;

(d)

in relation to an EU national who falls within Article 7(1)(b) of Directive 2004/38—

(i)

the national’s spouse or civil partner;

(ii)

direct descendants of the national or the national’s spouse or civil partner who are—

(aa)

under the age of 21; or

(bb)

dependants of the national or the national’s spouse or civil partner; or

(iii)

dependent direct relatives in the national’s ascending line or of the national’s spouse or civil partner;

(e)

in relation to a United Kingdom national, for the purposes of paragraph 9—

(i)

the national’s spouse or civil partner; or

(ii)

direct descendants of the national or the national’s spouse or civil partner who are—

(aa)

under the age of 21; or

(bb)

dependants of the national or the national’s spouse or civil partner;

[F3 “immigration rules” (“rheolau mewnfudo”) means the rules laid before Parliament by the Secretary of State under section 3(2) of the Immigration Act 1971;]

“the Islands” (“yr Ynysoedd”) means the Channel Islands and the Isle of Man;

“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; [F4 Gibraltar;] Mayotte; Greenland; Montserrat; Netherlands Antilles (Bonaire, Curacao, Saba, Sint Eustatius and Sint Maarten); Pitcairn, Henderson, Ducie and Oeno Islands; South Georgia and the 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;

[F3 “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 [F5 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)

[F6 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 considered not 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)

[F7 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 [F8 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;]

(c)

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)(2); and

(d)

who has been ordinarily resident in the [F5 United Kingdom and the Islands] throughout the period since P was granted leave to enter or remain;

[F9 “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(3) as extended by the Protocol thereto which entered into force on 4 October 1967(4);

[F2 “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;]

[F10 “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 hunangyflogedig”) 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(5);

“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(6) and which came into force on 1 June 2002;

[F2 “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 cyflogedig Swisaidd”) 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 cyflogedig ffin y Swistir”) 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 F1 ... and returns to the national’s residence in Switzerland or that EEA State daily or at least once a week;

“Swiss frontier self-employed person” (“person hunangyflogedig ffin y Swistir”) 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 F1 ... and returns to the national’s residence in Switzerland or that EEA State daily or at least once a week;

“Swiss self-employed person” (“person hunangyflogedig Swisaidd”) 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 Twrcaidd”) 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; and

“worker” (“gweithiwr”) means a worker within the meaning of Article 7 of Directive 2004/38 or the EEA Agreement as the case may be.

(2) For the purposes of this Schedule, “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.

(3) For the purposes of this Schedule, a person (“P” in this definition) is to be treated as ordinarily resident in the United Kingdom, the [F5 United Kingdom and the Islands], in [F11 the territory comprising the United Kingdom, Gibraltar, the European Economic Area and Switzerland], in [F12 the territory comprising the United Kingdom, the European Economic Area, Switzerland and the overseas territories], or in [F13 the territory comprising the United Kingdom, the European Economic Area, Switzerland, Turkey and the overseas territories] if P would have been so resident but for the fact that—

(a) P;

(b) P’s spouse or civil partner;

(c) P’s parent; or

(d) in the case of dependent direct relative in the ascending line, P’s child or child’s spouse or civil partner,

is or was temporarily employed outside the area in question.

(4) For the purposes of sub-paragraph (3), 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 [F14 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 [F15 the United Kingdom, Gibraltar,] the European Economic Area, Switzerland and Turkey as members of such forces.

(5) For the purposes of this Schedule an area [F16 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.

(6) For the purposes of this Schedule a person who is ordinarily resident in Wales, England, Scotland, Northern Ireland or the Islands having moved from one of those areas for the purpose of undertaking—

(a) the present course; or

(b) a course which, disregarding any intervening vacation, the person undertook immediately before undertaking the present course,

is to be considered to be ordinarily resident in the place from which the person moved.]

Textual Amendments

F1 Words in Sch. para. 1(1) omitted (31.12.2020) by virtue of The Education (Student Finance) (Miscellaneous Amendments) (Wales) (EU Exit) Regulations 2020 (S.I. 2020/1302), regs. 1(3), 9(2)(a)(i)

F2 Words in Sch. para. 1(1) inserted (31.12.2020) by The Education (Student Finance) (Miscellaneous Amendments) (Wales) (EU Exit) Regulations 2020 (S.I. 2020/1302), regs. 1(3), 9(2)(a)(ii)

F3 Words in Sch. para. 1(1) inserted (30.7.2018) by The Education (Student Finance) (Miscellaneous Amendments) (Wales) Regulations 2018 (S.I. 2018/814), regs. 1(2), 49(a)(i)

F4 Word in Sch. para. 1(1) inserted (31.12.2020) by The Education (Student Finance) (Miscellaneous Amendments) (Wales) (EU Exit) Regulations 2020 (S.I. 2020/1302), regs. 1(3), 9(2)(a)(iii)

F5 Words in Regulations substituted (8.3.2019) by The Education (Student Finance) (Miscellaneous Amendments) (Wales) Regulations 2019 (S.I. 2019/235), regs. 1(2), 12

F6 Words in Sch. para. 1(1) substituted (30.7.2018) by The Education (Student Finance) (Miscellaneous Amendments) (Wales) Regulations 2018 (S.I. 2018/814), regs. 1(2), 49(a)(ii)

F7 Words in Sch. para. 1(1) inserted (9.9.2019) by The Education (Student Finance) (Amendments to Student Eligibility) (Wales) Regulations 2019 (S.I. 2019/1192), regs. 1(2), 4(2)(a)

F8 Words in Sch. para. 1(1) inserted (9.9.2019) by The Education (Student Finance) (Amendments to Student Eligibility) (Wales) Regulations 2019 (S.I. 2019/1192), regs. 1(2), 4(2)(b)

F9 Words in Sch. para. 1(1) inserted (with application in accordance with reg. 1(3)(b) of the amending S.I.) by The Education (Student Finance) (Miscellaneous Amendments) (Wales) Regulations 2019 (S.I. 2019/235), regs. 1(3)(a), 13(a)

F10 Words in Sch. para. 1(1) substituted (31.12.2020) by The Education (Student Finance) (Miscellaneous Amendments) (Wales) (EU Exit) Regulations 2020 (S.I. 2020/1302), regs. 1(3), 9(2)(a)(iv)

F11 Words in Sch. para. 1(3) substituted (31.12.2020) by The Education (Student Finance) (Miscellaneous Amendments) (Wales) (EU Exit) Regulations 2020 (S.I. 2020/1302), regs. 1(3), 9(2)(b)(i)

F12 Words in Sch. para. 1(3) substituted (31.12.2020) by The Education (Student Finance) (Miscellaneous Amendments) (Wales) (EU Exit) Regulations 2020 (S.I. 2020/1302), regs. 1(3), 9(2)(b)(ii)

F13 Words in Sch. para. 1(3) substituted (31.12.2020) by The Education (Student Finance) (Miscellaneous Amendments) (Wales) (EU Exit) Regulations 2020 (S.I. 2020/1302), regs. 1(3), 9(2)(b)(iii)

F14 Words in Sch. para. 1(4)(b) inserted (31.12.2020) by The Education (Student Finance) (Miscellaneous Amendments) (Wales) (EU Exit) Regulations 2020 (S.I. 2020/1302), regs. 1(3), 9(2)(c)

F15 Words in Sch. para. 1(4)(c) inserted (31.12.2020) by The Education (Student Finance) (Miscellaneous Amendments) (Wales) (EU Exit) Regulations 2020 (S.I. 2020/1302), regs. 1(3), 9(2)(c)

F16 Words in Sch. para. 1(5) inserted (31.12.2020) by The Education (Student Finance) (Miscellaneous Amendments) (Wales) (EU Exit) Regulations 2020 (S.I. 2020/1302), regs. 1(3), 9(2)(d)

Commencement Information

I1 Sch. para. 1 in force at 31.7.2015, see reg. 1(1)

(1)

OJ L158, 30.04.2004, pp. 77-123.

(2)

Section 104 was amended by the Asylum and Immigration (Treatment of Claimants etc.) Act 2004 (c. 19), Schedules 2 and 4; by the Immigration, Asylum and Nationality Act 2006 (c. 13), and by the Transfer of Functions of the Asylum and Immigration Tribunal Order 2010 (S.I. 2010/21), Schedule 1.

(3)

Cmnd. 9171.

(4)

Cmnd. 3906, (out of print; photocopies are available, free of charge, from the Student Support Division, Department for Business, Innovation and Skills, Mowden Hall, Staindrop Road, Darlington DL3 9BG).

(5)

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

(6)

Cm. 4904 and OJ No. L114, 30.04.02, p. 6.