There are many issues we are taking up at AoC but, in the short-term, we are reassured on the position of EU nationals enrolling for courses in that the current rules continue.
The current position on Brexit
- For two years, everyone worked on the assumption that the UK would leave the EU by the end of March 2019. Following the failure of the UK government to get Parliamentary approval for the UK/EU withdrawal agreement, the EU granted a six-month extension to the UK and the current planned exit date is 31 October 2019.
- At the time of writing this note (June 2019), there is renewed discussion of the possibility that the UK will exit without a deal (a no-deal scenario).
The rights of EU nationals in the UK
- The EU’s founding treaty (the Treaty of Rome) included freedom of movement as a right for workers and over the next 50 years these rights were extended and codified into a Freedom of Movement Directive that has been written into UK law. These laws guarantee equal treatment for EU nationals and home nationals in terms of access to education and training.
- The UK government presented an Immigration and Social Security Co-ordination Bill to Parliament in January 2019 that repeals EU law relating to free movement and places EEA nationals and their families under UK immigration control after Brexit, while protecting the status of Irish citizens in UK immigration law. The bill has passed most of its stages through the Commons but has not yet been debated in the Lords.
- The UK/EU Withdrawal Agreement proposed a transition period after a March 2019 Brexit date that would run until December 2020, during which time freedom of movement could continue on a fairly similar basis as now. The withdrawal agreement also provided protections for EU citizens living in the UK (and UK citizens living in the EU).
- The Home Office has developed an EU Settlement Scheme (EUSS) to allow the 3 million EU nationals to prove their rights which are set out in the Withdrawal Agreement. If an individual can show he/she has lived in the UK for five years, they can qualify for “settled status”. If less than five years, “pre-settled status”. The EU Settlement scheme was launched for all applications in spring 2019 with a deadline of June 2021. By the end of May 2019, 788,000 people had applied of who 688,000 have had decisions with 64% getting settled status and 34% pre-settled status
- If the UK leaves the UK without a deal, the Home office’s no-deal notice published in January 2019 said that EU nationals should register with the EUSS by December 2020 and that a new status of European Temporary Leave to Remain would be introduced. People would be expected to apply for ETLR within their first three months in the UK. The notice said that leave to remain would normally last for three years after which time the new immigration rules would apply. AoC thinks it is unlikely that many EU nationals would be refused ETLR.
Immigration white paper
- The Home Office published an immigration white paper in December 2018 which sets out plans for a new immigration system to take effect in 2021 and afterwards. The proposal is for a common set of rules covering all non-UK nationals but with considerable differentiation based on individual skills and future trade deals. The Home Office cannot introduce the new system until it has legal authority to do so (which will require a further bill) and this will require clear political direction on key issues. Conservative party leadership candidates have suggested substantial changes of approach (a lower skilled worker salary threshold, a points based system) but no change to the current implementation timetable (or 2021 or later). The Home Office needs time to complete the registration of EU nationals and to implement new IT systems. Therefore, things will not change much in immigration policy and practice until these changes are all in place.
Eligibility for FE funding
- FE funding rules were rewritten in the 1990s to enshrine equal treatment between UK and non-UK EU nationals. These changes extended the rules introduced in the 1980s that required a person to have three years ordinary residence in the UK to qualify for home status. The precise rules are in:
- 16 to 19 funding regulations, pages 13 to 17
- Adult education budget (AEB) regulations, pages 12 to 16
- Apprenticeship funding rules for training providers, pages 62 to 66
- There are differences in the rules in the three different programmes. 16 to 19-year-olds can be eligible for funding on the basis of UK or EEA nationality (if they are residing legally in the UK) in addition to those who qualify on the basis of three year’s ordinary residence (paragraph 40(c) as well as paragraph 38), whereas AEB or apprenticeship eligibility does not have the additional nationality category.
- On Brexit, ESFA’s 2019-20 rules say that “Students who are nationals of EU (or EEA) countries who are already living in the UK before UK exit and the start of their programme must be treated equally to UK residents while the UK remains part of the EU and during any agreed transition period. Once enrolled they will be eligible for funding for the full duration of their study programme.”
- There is no reason at all to believe that a no-deal exit during 2019-20 would remove eligibility for those already enrolled particularly given the recent commitment given about new HE and FE students.
- Ever since the referendum outcome in 2016, DfE ministers have sought to provide reassurance to higher education students about future funding before the start of the application cycle (i.e. 12 months before the start of the academic year). Ministers did this in 2016, 2017 and 2018 for academic years up to and including 2019-20 but on these three occasions said nothing about 16-18 or adult education. In the statement made in May 2019, the HE minister Chris Skidmore also covered FE students. His statement said that “EU nationals who start a higher education course in England in the 2020/21 academic year will remain eligible for undergraduate and postgraduate financial support, Advanced Learner loans as well as FE and apprenticeships support, whether a deal for leaving the EU is in place or not.” DfE officials advise us that this provides an effective assurance to those planning to start courses in 2020/21.