Further and higher education - residency criteria for access to financial support: consultation analysis

3. Introduction

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.

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 (ECHR).

3.1 Long Residence

Generally, prior to the 2017/18 Academic Year (AY), 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, tuition fee and living cost support during their studies, with some exceptions (for example, frontier workers, refugees and those with temporary protection).

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.

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 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 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."

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.

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.

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 benefit to society of having clear rules restricting funding to those with a connection to Scotland.

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.

The long residence rules, however, provided a route for those who did not have settled status to access home fee status and student financial support provided 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.

These rules were part of the criteria for eligibility for access to financial support in Further Education and Higher Education. In Further Education, students who qualify for full support are able to access free tuition and bursary 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 (SAAS).

3.2 Future eligibility criteria

Although the Court's decision was in relation to regulations which have now been revoked, Ministers gave an undertaking to review the residency criteria contained within paragraph 1 of schedule 1 of the 2022 Regulations and sought to consult on proposed changes before they were enacted.

3.3 Consultation

This consultation ran for a shortened period (10 weeks) rather than the standard 12 weeks. This was to enable the necessary analysis work to be undertaken along with the development of new legislation. The draft legislation requires 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.

3.4 Stakeholder Engagement

In concurrence with the consultation, Scottish Government officials invited stakeholder groups with a vested interest in the topic to meet to discuss the proposals laid out in the consultation exercise. The following stakeholders accepted the invitation to meet:

• Children and Young Persons Commissioner for Scotland
• JustRight Scotland
• National Association of Student Money Advisers (NASMA)
• National Union of Students (NUS) Scotland
• Poverty Truth Commission
• Scottish Refugee Council

In addition, Scottish Government officials heard from a small number of students directly who had been adversely impacted by the long residence provision.