Ordinary Residence in Scotland on the Relevant Date
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FFFeeeeee AAAsssssseeessssssmmmeeennnttt GGGuuuiiidddaaannnccceee 222nnnddd EEEdddiiitttiiiooonnn SSSeeessssssiiiooonnn 222000111333---222000111444 Author: Julia Reid Last updated: 6 March 2013 Disclaimer: The information in this guide offers general guidance only and is not legally binding, nor does it constitute any right of eligibility for, or entitlement to, fees to be assessed at the level set by Scottish Ministers. Institutions of higher education are solely responsible for making decisions on what fee level a student is entitled to be charged, based on their interpretation of the Education (Fees) (Scotland) Regulations 2011 as amended. 1 Student Awards Agency for Scotland – Fee assessment guidance, 1st edition, session 2012-13 Introduction This fee assessment guidance document is intended to be a practical guide and reflects the general approach that SAAS would take in assessing a persons’ eligibility for tuition fee support in terms of the Students Allowances (Scotland) Regulations 2007 as amended. The 2011 fee regulations are now more closely aligned to the student allowances regulations than they have been in the past, and subsequent amendments to both sets of regulations (in 2012 and 2013) ensure that this alignment is as close as possible. In law, the assessment of ‘tuition fee status’ by institutions and ‘tuition fee support’ by SAAS are governed by different (albeit very similar) legislation. It is therefore up to yourselves, as institutions, to make your own decision about a student’s fee status taking into account the facts and circumstances of each case. This means the decision you make and SAAS make can be different. However, you can seek an opinion from SAAS in complicated/borderline cases. This guidance is for your internal use only. You should not quote this guidance in external correspondence, but instead quote the relevant paragraphs in the regulations that refer to the circumstances of your case. Throughout this guidance we have tried to direct you to the appropriate regulation or Schedule within the regulations that will apply to the circumstances of your case. You will find this in green text (reference to regulations only) and hyperlinks (reference to regulations and information contained in this guidance). Any case studies contained in this document are meant to illustrate what SAAS would be likely to do in a specific situation with regards to student support and should not be used as a template for making decisions on tuition fee levels. Throughout this document we refer to ‘home’ fee status. This means if you grant such ‘home’ fee status, the student will not be charged more than the rate of tuition fees set by Scottish Ministers (£1,285 for sub degrees or £1,820 for degrees). ‘RUK’ students. These are students who normally live in the rest of the UK and not Scotland. While this group is not defined in legislation, the working definition is that RUK students are those students who would have been eligible for home fee status under the Education (Fees and Awards) (Scotland) Regulations 2007, as amended, and as such have a relevant connection with the UK and Islands, but are now not eligible under the new 2011 fee regulations as they do not have a relevant connection with Scotland. All students who are not eligible under either sets of regulations are non-EU international students. 2 Student Awards Agency for Scotland – Fee assessment guidance, 1st edition, session 2012-13 INDEX 1. The new 2011 fee regulations 2. Summary of changes made through the 2013 Amendment Regulations 3. Regulation 3 - relevant connection with Scotland 4. Schedule 1 – excepted students 5. Schedule 2 – ordinary residence 6. Those required to be ordinary resident in Scotland on the relevant date 7. Those NOT required to be ordinary resident in Scotland on the relevant date 8. Categories in the 2007 regulations removed from the 2011 regulations 9. Students with different circumstances (deferred entry, articulating from RUK to Scotland, nursing, AHP, intercalating medicine) 10. Further help/information 11. Glossary of new terms in the regulations 12. Annex 1 - Boarding Schools in Scotland 13. Annex 2 - SAAS residence enquiry forms 14. Annex 3 - The Education (Fees) (Scotland) Regulations 2011 15. Annex 4 – The Education (Fees, Awards and Student Support) (Miscellaneous Amendments) (Scotland) Regulations 2013 16. Alpha Index 3 Student Awards Agency for Scotland – Fee assessment guidance, 1st edition, session 2012-13 1. The new 2011 fee regulations (back to main index) The new 2011 fee regulations are entitled ‘The Education (Fees) (Scotland) Regulations 2011’ (thereafter referred to as the ‘2011 regulations’). They will generally apply to students who commence their courses of education in session 2012-2013 or later, known as ‘post 2011/12 students’, but will not apply to: students who commenced their course in an earlier session; (see exception below for medicine students); or students who, prior to 1 August 2011, have reached a written agreement with their institution to defer entry. The 2011 regulations will apply to medical students, known as “excluded medical students” who; have reached an agreement, prior to 1 August 2011, with their institution to defer entry; and have a relevant connection with Scotland within the meaning of the 2011 regulations. For those who do not have a relevant connection with Scotland within the meaning of the 2011 regulations, The Education (Fees and Awards) (Scotland) Regulations 2007 as amended (thereafter referred to as the 2007 regulations) continue to apply. The 2011 regulations apply to those students described above studying courses of higher education at either a college or university. They do not apply to those studying courses of further education at college, either new or continuing students. Such students continue to fall under the 2007 regulations. 4 Student Awards Agency for Scotland – Fee assessment guidance, 1st edition, session 2012-13 2. Summary of changes made through the 2013 Amendment Regulations The Education (Fees, Awards & Student Support) (Miscellaneous Amendments) (Scotland) Regulations 2013 make amendments to, amongst others, the 2007 and 2011 Fees Regulations. The amendments relating to the Fees Regulations come into force from the 1 August 2013 and as such apply to students commencing their studies after that. The main changes can be summarised as follows: Dual UK/EU nationals – in tandem with Learning & Justice Circular 2012/005 which was issued in September 2012, amendments are made to Schedule 1, Paragraph 9 of the 2007 Fees Regulations, and Schedule 1, Paragraph 10 of the 2011 Fees Regulations clarifying the circumstances where a UK national can be considered as eligible for home fees on the same basis as an EU national. The two sets of circumstances are: o where that UK national (whether or not they are also an EU national) has exercised a right of residence in the EEA/Switzerland as set out in Article 7 of Directive 2004/38 EC (i.e. resident for more than 3 months and working, studying or self-sufficient); or o where a UK national has lived outwith the UK in a state within the EEA/Switzerland of which they are also a national, and, where, if they had not been a national of that state, would have been exercising a right of residence in the same way as set out in Article 7 of Directive 2004/38 EC. Definition of family members of EU/EEA/Swiss nationals – an amendment has been made to the definition of a family member which harmonises the definition across all EC related categories whether the EU/EEA/Swiss national is a worker of some kind, self-sufficient or not self-sufficient. So for both a migrant worker and an EU national, their spouse or civil partner; direct descendants of themselves, their spouse or civil partner who are under 21 or dependent on them/spouse/civil partner; and, dependent direct relatives in the ascending line of themselves/their spouse or civil partner will all be considered as family members for the purposes of determining eligibility for home fees. Family members of EU nationals (Paragraph 9 of Schedule 1 of the 2007 Fees Regulations and paragraph 10 of Schedule 1 of the 2011 Fees Regulations). For family members of EU nationals as described above, we have introduced an amendment to now require these family members to be “joining or accompanying” the EU national in the UK. So for example, where a student is not eligible in their own right for home fees, but is moving with their EU parent to the UK then they will be considered eligible. However if that same student’s EU parent remains behind in their home country, and the student is not eligible in their own right then that student can not become eligible as the family member of an EU national. As we are introducing this change fairly late on in the application cycle, institutions may have already offered home places to students who may now not be considered eligible due to this amendment. The number of cases of students falling into this category is however likely to be very small and it is for the individual institution to decide what to do in these circumstances. SAAS, who open for applications for 2013-14 in mid April 2013 will be applying this change to all new applications. Moving to Scotland for the purpose of attending a course of higher education. The 2011 Fees Regulations set out in Regulation 2(3) and (4) that a student ordinarily resident in Scotland after moving from the UK and Islands for the 5 Student Awards Agency for Scotland – Fee assessment guidance, 1st edition, session 2012-13 purpose of undertaking a course of education was to be considered ordinarily resident in the part of the UK and Islands in which they had previously been living, rather than Scotland, and therefore not eligible for home fees.