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

Background

9. The long residence rules are part of the criteria for eligibility for access to financial support in Further Education^[1] and Higher Education^[2]. In Further Education, students who qualify for full support are able to access free tuition and bursary^[3] support via their college. In Higher Education, eligible students are able to access free tuition (tuition fee grant), bursaries and/or student loans via the Student Awards Agency Scotland^[4] (SAAS).

10. There are a number of different eligibility categories in student support legislation, which are largely based on residence and immigration status. A person must meet the conditions of at least one of these categories to be eligible to receive funding. The category which a student falls into can also influence the level of support they are eligible for, ranging from tuition fee support only up to full tuition fee and living cost support.

11. The long residence rules came into force on 1 August 2017, following the Supreme Court judgement in the case of R (Tigere) v Secretary of State for Business, Innovation and Skills [2015] 1 WLR 3820 which declared it unlawful on ECHR grounds to refuse the petitioner student financial support purely on the basis that she was not settled in the United Kingdom. The effect of the judgement led to the Scottish Government considering whether its previous eligibility criteria for accessing student support were in contravention of ECHR rights.

12. As a consequence, the long residence rules were introduced into paragraph 1(c)(ii) and (iii) of schedule 1 of the 2007 Regulations, in the following terms:

"Schedule 1 – Persons eligible for allowances

1. A person who –

(a) is ordinarily resident^[5] in Scotland on the relevant date;

(b) has been ordinarily resident in the United Kingdom and Islands throughout the period of 3 years immediately preceding the relevant date; and

(c) is –

(i) settled in the United Kingdom within the meaning given by section 33(2A) of the Immigration Act 1971^[6] on the relevant date; or

(ii) under the age of 18 and has lived in the United Kingdom throughout the seven year period preceding the first day of the first academic year of the course; or

(iii) aged 18 years old or above and, preceding the first day of the first academic year of the course, has lived in the United Kingdom either half of his or her life or a period of twenty years."

13. Equivalent amendments were made to other pieces of student support legislation at the same time, to ensure that individuals who met the long residence rule would be entitled to the full range of student support^[7].

14. Generally, prior to 1 August 2017, only students with settled status in the United Kingdom who had been resident in the UK / Islands for three years and were ordinarily resident in Scotland on the relevant date would be entitled to home fee status^[8], tuition fee and living cost support during their studies, with some exceptions (for example, frontier workers, refugees and those with temporary protection).

15. The overarching policy rationale for requiring students to have settled status to access student support was because it was considered to be a clear way for individuals to demonstrate a connection to Scotland, which in turn would suggest that they were more likely to remain here and make a longer-term contribution to the Scottish economy after graduation. Without the requirement for such a connection, there would be a risk of finite public resources for student support being provided to students who would be unable to complete their course because their time in the UK was limited or being unable to remain and contribute to society after completing their studies.

16. The long residence rules, however, provided a route for those who did not have settled status to access home fee status / student financial support providing they were ordinarily resident in Scotland on the relevant date and had resided within the United Kingdom for a specified period of time. These rules allowed people to establish a connection with Scotland even in the absence of settled immigration status.