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

Proposal to replace long residence rules

17. As noted above, the 2022 Regulations mirrored the long residence rules as introduced to the 2007 Regulations in 2017, but with the addition of paragraph 1(c)(iv). The terms of schedule 1 in the 2022 Regulations are as follows:

Schedule 1 – Persons eligible for Student Support

"1. Persons who are settled in the United Kingdom or have long residence

A person who on the relevant date^[9] –

(a) is ordinarily resident in Scotland,

(b) has been ordinarily resident in the United Kingdom and Islands throughout the immediately preceding 3 year period, and

(c) is –

(i) settled in the United Kingdom within meaning given by section 33(2A) (interpretation) of the Immigration Act 1971

(ii) under the age of 18 and has lived in the United Kingdom and Islands throughout the seven-year period preceding the relevant date,

(iii) aged 18 or above, and preceding the relevant date, has lived in the United Kingdom and Islands throughout either half their life or a period of twenty years

(iv) aged 18 or above and received support by virtue of head (ii) for the academic year immediately preceding the relevant date, or

(v) the spouse, civil partner or child of a person described in head (i)."

18. Similar provisions are also found in definition of students having a relevant connection with Scotland in regulation 3 of the Education (Fees) (Scotland) Regulations 2022 ("the Fees Regulations"). As noted at paragraphs 14 and 15, the overarching policy rationale is that eligibility should be linked to having a relevant connection to Scotland as it would suggest that these students would more likely remain here post-graduation and make a longer-term contribution to the Scottish economy.

19. It is proposed that with effect from the 2023/24 academic year (i.e. from 1 August 2023), the long residence rules will be removed and the residency criteria under schedule 1 of the 2022 Regulations and the definition of relevant connection with Scotland under regulation 3 of the Fees Regulations will be expanded to include a wider group of students who would be eligible for home fee status and financial support. The intention is that eligibility will be expanded to include all those who have been living in the United Kingdom for 3 years and who are now ordinarily resident in Scotland, provided they have any form of leave to enter or remain in the UK. The type of leave to enter or remain will not be specified (subject to some exceptions below), but the leave must not have expired. It is proposed that eligibility would also be extended to the spouse, civil partner or child of a person with any form of leave to enter or remain in the UK. These family members would also have to meet the other eligibility requirements (3 years' residence in the UK and ordinarily resident in Scotland on the relevant date).

20. This proposal would see students without a form of settled status no longer being dependent on meeting a minimum number of years in the UK (beyond the standard requirement for 3 years' ordinary residence). We have selected 3 years as this is consistent with the minimum residence requirement that individuals with settled status in the UK must meet in order to qualify for student support. The reason for this requirement is to continue to ensure that individuals will only qualify for student support where they can establish a sufficient connection to Scotland at the time of their application i.e. that they may have set up a home here; they may have been in employment; or they have an intention to stay in Scotland post-graduation and contribute to the Scottish economy.

21. This proposal would capture students who have been granted forms of limited leave to remain^[10]. Limited leave to remain can be granted for a number of reasons and for a variety of periods of time. Individuals on certain types of limited leave are eligible after a pre-requisite period of time (variable depending on the specific type of leave) to apply for indefinite leave to remain or British citizenship. Indefinite leave to remain gives the holder permission to stay in the UK on a permanent basis.

22. This expansion of the eligibility criteria would not include those who currently have outstanding asylum claims. This is due to conditions under UK immigration laws imposed on the applicant whilst awaiting their application being processed, which restricts their recourse to public funds. However according to the UK Government^[11], applicants will usually get a decision on their application within 6 months. A 2021 report by the Refugee Council stated that almost half of applicants waited more than a year with almost 5% of applicants waiting for more than 3 years^[12]. As the individual would be required to be ordinarily resident in the UK for a minimum of 3 years in order to be eligible for student financial support, it is believed that restricting access for asylum seekers should not pose a significant barrier for potential students as their time in the UK awaiting the outcome of their asylum application would still count towards the three year residency requirement. Asylum seekers who do choose to study in Further or Higher Education whilst awaiting the outcome of their application are already able to access hardship funds (Discretionary Funds) through their college/ university which are provided by Scottish Government.

23. Individuals who are in the UK on a student visa would remain ineligible for financial support as they have applied to enter the UK on the grounds of education. Current eligibility rules do not consider an individual to be eligible for support if they are resident in Scotland solely for the purposes of education^[13]. Dependents of the student visa holder (spouse, civil partner or child) who are here on a dependent visa would be eligible for support providing they met the other set eligibility criteria such as ordinary residence, course eligibility etc.

24. Individuals who did not meet the eligibility criteria set out on the relevant date would be ineligible for home fee status / student financial support. This is known as a 'bright line' rule. This is the position currently taken where no flexibility can be afforded due to the complexities of administering such discretion. For example, if discretion was provided to those individuals who would meet the eligibility criteria within one month of the relevant date, this would still in effect be a 'bright line' as those individuals who did not meet the eligibility criteria within the discretionary time period would be ineligible.

25. In the Jasim case, the judge noted that the traditional justifications for having a bright line or blanket rule are practicality and legality. On practicality, he observed that, "a standard inclusionary bright line rule coupled with the possibility of inclusion by way of a more tailored approach to other cases, far fewer in number, falling outside the bright line rule but arguably within the ambit of the policy objective, while no doubt to a degree more cumbersome than the current system, is difficult to categorise as quite unworkable."

26. The Scottish Ministers have considered these observations and whether there is scope for discretion in the student support eligibility rules. This option is not being recommended for the following reasons:

a. it would not be possible to introduce an element of discretion for the new rule alone; this would have to be extended to all of the eligibility criteria for student support. This could create a significant administrative burden for SAAS and Further Education providers when assessing eligibility, which could lead to significant increase in turnaround times when processing funding applications. Even with discretion, there would need to be a practical 'cut off' point where someone would be ineligible, due to restrictions on student numbers as a consequence of education provider capacity, and to allow budget certainty for SAAS and Further Education providers.

b. it is not necessary for there to be any discretion to meet the policy aim of targeting support to those with a sufficient connection to Scotland. The requirement of 3 years' residence in the UK is a reasonable and proportionate way of assessing that connection.

c. it is also considered preferable for the Scottish student support system to operate on the basis of certainty, with individuals able to determine from reading the legislation whether or not they would be eligible for support. This also helps to ensure consistency in decision-making and improves fairness and transparency in the decision-making process.