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

6. Scottish Government response

As noted within the Executive Summary section of the document, following the decision in Jasim v Scottish Ministers and through the consultation exercise and stakeholder engagement, the Scottish Government propose to bring forward two policy changes in regards to residency criteria in Further and Higher Education for the upcoming 2023/24 AY in regards to:

• Relevant connection to Scotland
• Unaccompanied Asylum Seeking children and Children of Asylum Seekers

6.1 Relevant Connection to Scotland

This provision will see an extension of home fee status and student financial support to those individuals who have been granted leave to enter or remain in the United Kingdom by the Home Office (which has not expired) and who meet the standard residency eligibility criteria of being ordinarily resident in Scotland on the relevant date and having been ordinarily resident in the United Kingdom throughout the period of 3 years immediately preceding the relevant date.

This rule will now capture those who are subject to a range of immigration statuses such as Limited Leave to Remain (LLR), Leave outside the rules and other forms of Leave to Remain (Parent/ Partner routes etc.) and afford them access to home fee status and student financial support without the requirement of a meeting a long residence rule.

This change will also be extended to the dependents of those noted above.

Those who enter the UK on a study visa will remain ineligible for home fee status and student financial support as they have entered the UK for the purposes of education and therefore do not meet the ordinary resident test. However their dependents may be eligible for student financial support depending on their own visa status and length of residence in the UK.

The standard ordinary residence rules remain but other than excepted groups, all students must now meet the same required length of residence in the UK in order to access support. The relevant date for the purposes of fee assessments also remains but further explanation is provided below.

6.2 Unaccompanied Asylum Seeking children/ Children of Asylum Seekers

A provision to support this cohort of students currently exists within the 2022 Regulations but is prescriptive of the time in which the application for asylum had to be made (prior to 1 December 2006) and the age in which the student applied for home fee status/ student financial support (under the age of 25 years).

The policy will now be widened to remove the time limit and age cap that previously applied meaning current unaccompanied Asylum Seeking children and children of Asylum Seekers will be able to apply for support.

This policy continues to extend access to home fee status and tuition fee support only.

This change is in recognition of the impact that a delay to an asylum claim can have on a child or young person's learner journey. It is noted that these individuals can access secondary education but are then precluded from entering Further or Higher Education alongside their peers whilst a decision is made on their outstanding asylum claim. Officials heard anecdotal evidence that age verification for some children as part of the evidencing of their claim can delay the turnaround time of their application.

These amending regulations will be laid before the Scottish Parliament on 11 May 2023 to be in force for the start of the 2023/24 AY being 1 August 2023. Impact Assessments for both changes will be published alongside the amending regulations.

It is recognised that the above proposed changes do not address all key issues identified during the consultation exercise and stakeholder engagement. Given the time constraints for laying amending legislation, it has not been possible to fully consider and address each issue. Below is a note of work that the Scottish Government acknowledge needs further consideration.

6.3 Support for Asylum Seekers

Whilst it is hoped that the amendment to the eligibility criteria for unaccompanied Asylum Seeking children and children of Asylum Seekers will be positively received, it is recognised that the consultation exercise and stakeholder engagement did call for wider support for Asylum Seekers in general, particularly those who have been in the UK for over three years' but have an asylum claim pending.

Further analysis is required to try and identify the number of Asylum Seekers who are currently residing in Scotland who have been waiting more than three years on a decision by the Home Office to ascertain the extent of the issue.

Asylum Seekers who are resident in Scotland and are provided with Refugee status are entitled to home fee status and student financial support from the Scottish Government – this exception exists in the current rules and will remain.

For those who remain ineligible to access home fee status and student financial support (due to a pending claim), they may be able to apply for support through Universities of Sanctuary although it is recognised through the Consultation exercise, that there are limited places offered through this route with competition being high.

Discretionary Fund guidance in both Further and Higher Education also provides access to financial support to those awaiting a decision on an asylum claim who are able to study and are experiencing financial hardship.

6.4 Living cost support for unaccompanied Asylum Seekers and children of Asylum Seekers

Extending access to living cost support (bursaries, grants and student loans) for unaccompanied Asylum Seekers and children of Asylum Seekers needs to be considered further. Analysis undertaken to date is inconclusive as to whether access to this type of financial support could have a detrimental impact on an Asylum Seeker's claim, and any support they are already receiving via public funds. That is why at present, support is only being offered in relation to tuition fees.

6.5 Flexibility when assessing applications and re-assessment of eligibility

There are four dates in the 2022 Regulations which are used to assess eligibility. The date which is used is dependent on the specific course start date. Currently, if a student is deemed to be ineligible at the start of their course then they remain ineligible for the remainder of that course bar a few exceptions (i.e. obtaining Refugee status etc.) This issue appears to be more specific to Higher Education due to the length of courses.

Consideration has previously been given to adopting a flexible approach when assessing eligibility – whereby those students who were just 'short' of reaching the eligibility criteria may be deemed eligible on a case-by-case basis. However, risks were identified with this approach, in effect it introduces additional 'cut off' dates in the assessment process. There could still be students who fall outwith any new 'flexibility window' and this approach could lead to an inconsistency of approach when undertaking assessments.

The consultation exercise and stakeholder engagement were generally positive towards re-assessment of eligibility throughout the course of study (or if there were changes in circumstance). Through some of the responses and engagement, officials recognise that the biggest impact on any such change would be particularly felt by universities. Whilst a few universities responded to the consultation and confirmed the difficulties with this proposal, it was felt there were insufficient responses from that sector to properly assess the impact of such a change for the upcoming academic year.

Such a change could have an impact on the funding stream for universities and without properly knowing the scale of re-assessments which could take place each year, it was considered prudent to undertake further engagement on this issue before reaching a conclusion on the matter.

6.6 Armed Forces

There have been a significant number of responses in the consultation in relation to armed forces personnel and/or their dependants. Several bodies representing various factions of the Armed Forces were critical of the current policies around access to home fee status and student financial support.

The Scottish Government has a four nations approach with the other Devolved Administrations in the UK regarding support at HE level for Armed Forces personnel. The agreement is that ordinary residence is generally decided by the country in which the member of the military enlists. Therefore, their allocated funding body for the purposes of HE student financial support regardless of where the personnel and their family reside at the point of application is decided by where they are considered ordinarily resident. There is no four nations policy in place in regards to Further Education.

The current Higher Education policy is particularly criticised by those who may have enlisted in England or Wales and have been based in Scotland for a number of years – the consultation exercise particularly highlighted a difficulty with those who reside in Service Accommodation. The consultation responses were also critical of the approach taken within Further Education.

Given the complexities of the subject due to the four nation approach in HE, potential differing approaches in FE across the UK and requirement for engagement with the Ministry of Defence, it was not possible to reach a conclusion on this issue in the current regulatory timescales. Scottish Government officials will consider this matter further and acknowledge that many of the stakeholder groups who responded to the consultation noted their willingness to engage further on the matter.