Further and Higher Education financial support - changes to residency criteria: consultation

Executive Summary

1. Following a judicial review hearing at the Court of Session, the Court issued a decision in the case of Ola Jasim v Scottish Ministers [2022] CSOH 64 on 9 September 2022.

2. The Court declared paragraph 1(c)(ii) and (iii) of schedule 1 of the Students' Allowances (Scotland) Regulations 2007 ("the 2007 Regulations") (known as 'long residence rules') to be unlawful in light of Article 14 of, and Article 2 of the Protocol 1 to, the European Convention on Human Rights.

3. The 2007 Regulations were revoked upon the introduction of the Student Support (Scotland) Regulations 2022 ("the 2022 Regulations"), which came into force on 1 August 2022. However, the 2022 Regulations have mirrored the long residence rules at paragraph 1(c)(ii) and (iii) of schedule 1.

4. The Court found that the long residence rules failed to strike a fair balance between the impact they had on those excluded from eligibility for student support and the likely benefit to society of having clear rules restricting funding to those with a connection to Scotland.

5. The Scottish Ministers have given careful consideration to the decision of the Court in Jasim and have considered several options to address this. As a remedy for those students who were impacted by the 2007 Regulations, a Payment Scheme was launched in December 2022 to provide financial support.

6. Although the Court's decision was in relation to regulations which have now been revoked, Ministers have given an undertaking to review the residency criteria contained within paragraph 1 of schedule 1 of the 2022 Regulations and this consultation forms part of this work.

7. A core aspect of the current rules on eligibility for student support is reference to the "relevant date" for assessing a person's residence and immigration status (broadly the first day of the first academic year of the course). As part of this consultation, we are inviting views on the use of the relevant date as the reference point for eligibility assessments.

8. This consultation will run for a shorter period (10 weeks) rather than the standard 12 weeks. This is to enable the necessary analysis work to be undertaken along with the development of new legislation. The draft legislation needs to be laid in the Scottish Parliament in sufficient time to allow proper scrutiny and to ensure that the changes can take effect from the start of the 2023/24 academic year, being 1 August 2023. As the Parliament will be in recess over the summer months, this means legislation must be laid in May.