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The Education (Student Fees and Support) Temporary Protection (Scotland) Amendment Regulations 2005

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Scottish Statutory Instruments

2005 No. 217

EDUCATION

The Education (Student Fees and Support) Temporary Protection (Scotland) Amendment Regulations 2005

Made

8th April 2005

Laid before the Scottish Parliament

15th April 2005

Coming into force

7th May 2005

The Scottish Ministers, in exercise of the powers conferred by sections 49(3), 73(f), 73B and 74(1) of the Education (Scotland) Act 1980(1); sections 1 and 2 of the Education (Fees and Awards) Act 1983(2); and of all other powers enabling them in that behalf, hereby make the following Regulations:

Citation and commencement

1.  These Regulations may be cited as the Education (Student Fees and Support) Temporary Protection (Scotland) Amendment Regulations 2005 and shall come into force on 7th May 2005.

Amendment of Nursing and Midwifery Regulations

2.—(1) The Nursing and Midwifery Student Allowances (Scotland) Regulations 1992(3) shall be amended as follows.

(2) In regulation 2–

(a)at the end of the definition of “Health Board” omit “and”;

(b)after that definition insert–

“relevant day” in relation to a course of education for which an allowance is sought means–

(a)

as respects a course starting in the period 1st August to 31st December, 1st August; or

(b)

as respects a course starting in the period 1st January to 31st July, 1st January,

in either case the relevant day being in the year of commencement of the appropriate academic year of the course;;

(c)at the end of the definition of “Switzerland Agreement” for “2002.” substitute “2002; and”; and

(d)after that definition insert–

“temporary protection” means limited leave to enter or remain granted pursuant to Part 11A of the Immigration Rules(4)..

(3) In Schedule 1–

(a)after paragraph 6 insert–

6A.  A person who–

(a)at the date of the Scottish Ministers receiving his or her application for an allowance has been granted temporary protection and who has been ordinarily resident in the United Kingdom and Islands at all times since he or she was first granted temporary protection;

(b)has not attained the age of 18 years on the relevant day; and

(c)is ordinarily resident in the United Kingdom and Islands on the relevant day.; and

(b)in paragraph 8 after “relevant day” insert “, provided that this paragraph will not apply where it would result in the payment of an allowance to a person after the end of any academic year in which that person attained the age of 18 years where that person qualified only by virtue of paragraph 6A”.

Amendment of Bursaries Regulations

3.—(1) The Education Authority Bursaries (Scotland) Regulations 1995(5) shall be amended as follows.

(2) In regulation 2(1)–

(a)at the end of the definition of “relevant date” omit “and”;

(b)at the end of the definition of “Switzerland Agreement” for “2002.” substitute “2002; and”; and

(c)after that definition insert–

“temporary protection” means limited leave to enter or remain granted pursuant to Part 11A of the Immigration Rules..

(3) In Schedule 1–

(a)after paragraph 3A insert–

3B.  A person who–

(a)at the date of the education authority receiving his application for a bursary has been granted temporary protection and who has been ordinarily resident in the British Islands at all times since he was first granted temporary protection;

(b)has not attained the age of 18 years on the relevant date; and

(c)is ordinarily resident in the area of the education authority on the qualifying day,

provided that a bursary paid to a person only by virtue of that person qualifying under this paragraph shall not continue beyond the end of any academic year in which that person attains the age of 18 years.; and

(b)in paragraph 5 after “relevant date” insert “, provided that this paragraph will not apply where it would result in the payment of a bursary to a person after the end of any academic year in which that person attained the age of 18 years where that person qualified only by virtue of paragraph 3B”.

Amendment of Fees and Awards Regulations

4.—(1) The Education (Fees and Awards) (Scotland) Regulations 1997(6) shall be amended as follows.

(2) In regulation 2(1)–

(a)at the end of the definition of “refugee” omit “and”;

(b)at the end of the definition of “Switzerland Agreement” for “2002.” substitute “2002; and”; and

(c)after that definition insert–

“temporary protection” means limited leave to enter or remain granted pursuant to Part 11A of the Immigration Rules..

(3) In Schedule 1 after paragraph 3A insert–

3B.  A person shall be an excepted student if he–

(a)is a person who has been granted temporary protection;

(b)did not attain the age of 18 years prior to the beginning of the current academic year of the student’s course; and

(c)has been ordinarily resident in the United Kingdom and Islands at all times since he was first granted temporary protection..

(4) In Schedule 2 after paragraph 2 insert–

2A.  A person shall be an excepted candidate if he–

(a)is a person who has been granted temporary protection;

(b)has not attained the age of 18 years on the relevant date; and

(c)has been ordinarily resident in the United Kingdom and Islands at all times since he was first granted temporary protection..

Amendment of Students' Allowances Regulations

5.—(1) The Students' Allowances (Scotland) Regulations 1999(7) shall be amended as follows.

(2) In regulation 2(1)–

(a)at the end of the definition of “relevant day” omit “and”;

(b)at the end of the definition of “Switzerland Agreement” for “2002.” substitute “2002; and”; and

(c)after that definition insert–

“temporary protection” means limited leave to enter or remain granted pursuant to Part 11A of the Immigration Rules..

(3) In Schedule 1–

(a)after paragraph 6 insert–

6A.  A person who–

(a)at the date of the Scottish Ministers receiving his application for an allowance has been granted temporary protection and who has been ordinarily resident in the United Kingdom and Islands at all times since he was first granted temporary protection;

(b)has not attained the age of 18 years on the relevant day; and

(c)is ordinarily resident in Scotland on the relevant day,

provided that an allowance paid to a person only by virtue of that person qualifying under this paragraph shall not continue beyond the end of any academic year in which that person attains the age of 18 years.; and

(b)in paragraph 8 after “relevant day” insert “, provided that this paragraph will not apply where it would result in the payment of an allowance to a person after the end of any academic year in which that person attained the age of 18 years where that person qualified only by virtue of paragraph 6A”.

Amendment of Student Loans Regulations

6.—(1) The Education (Student Loans) (Scotland) Regulations 2000(8) shall be amended as follows.

(2) In regulation 2(1)–

(a)at the end of the definition of “Switzerland Agreement” omit “and”; and

(b)after that definition insert–

“temporary protection” means limited leave to enter or remain granted pursuant to Part 11A of the Immigration Rules; and.

(3) In Schedule 1 after paragraph 3 insert–

3A.  A person who–

(a)has been granted temporary protection, is ordinarily resident in the United Kingdom and Islands and who has not ceased to be so resident since he was granted temporary protection;

(b)has not attained the age of 18 years on the relevant date; and

(c)meets the residence condition in paragraph 7(a)..

Amendment of Education Maintenance Allowances Regulations

7.—(1) The Education Maintenance Allowances (Scotland) Regulations 2004(9) shall be amended as follows.

(2) In Regulation 2(1) for the definition of “temporary protection” substitute–

“temporary protection” means limited leave to enter or remain granted pursuant to Part 11A of the Immigration Rules..

(3) Omit regulation 3(3).

(4) In Schedule 1–

(a)for paragraph 7 substitute–

7.  A person who–

(a)at the date of the Scottish Ministers receiving his or her application for an education maintenance allowance has been granted temporary protection and has been ordinarily resident in the United Kingdom and Islands at all times since he or she was first granted temporary protection;

(b)has not attained the age of 18 years on the qualifying date; and

(c)is ordinarily resident in the United Kingdom and Islands on the qualifying date,

provided that an education maintenance allowance paid to a person only by virtue of that person qualifying under this paragraph shall not continue beyond the end of any academic year in which that person attains the age of 18 years.; and

(b)after paragraph 8(2) insert–

(3) Sub paragraph (1) shall not apply where it would result in the payment of an education maintenance allowance to a person after the end of any academic year in which that person attained the age of 18 years where that person qualified only by virtue of paragraph 7..

(5) In paragraph 2(1) of Schedule 2 for “6(a)(iii) and 7(a) of Schedule 1” substitute “and 6(a)(iii) of Schedule 1”.

JAMES R WALLACE

A member of the Scottish Executive

St Andrew’s House, Edinburgh

8th April 2005

Explanatory Note

(This note is not part of the Regulations)

These Regulations, which come into force on 7th May 2005, amend the Nursing and Midwifery Student Allowances (Scotland) Regulations 1992, the Education Authority Bursaries (Scotland) Regulations 1995, the Education (Fees and Awards) (Scotland) Regulations 1997, the Students' Allowances (Scotland) Regulations 1999, the Education (Student Loans) (Scotland) Regulations 2000 and the Education Maintenance Allowances (Scotland) Regulations 2004 (“the principal Regulations”).

The amendments are a requirement of Council Directive 2001/55/EC (O.J. No. L 212, 20.7.01, p.12) on minimum standards for giving temporary protection in the event of a mass influx of displaced persons and on measures promoting a balance of efforts between member States in receiving such persons and bearing the consequences thereof.

These Regulations are wholly concerned with the implementation of Council Directive 2001/55/EC and partly implement the requirements of the Directive. The purpose of the Directive is to establish minimum standards for giving temporary protection in the event of a mass influx of displaced persons who cannot return to their country of origin. Temporary protection is a procedure of exceptional character and the existence of a mass influx of displaced persons will be established by a decision by the Council of the European Union. Under Part 11A of the Immigration Rules the Secretary of State will then grant some of these persons temporary protection in the UK.

Once it has been established that persons are entitled to temporary protection, the Directive sets out the obligations of member States towards persons enjoying temporary protection. Article 14.1 of the Directive requires member States to grant to persons under 18 years of age enjoying temporary protection access to the education system under the same conditions as nationals of the host member State.

These Regulations amend the principal Regulations to introduce into each of these Regulations an eligible category of individuals for each academic year consisting of those who have been granted the status of temporary protection, who are under 18 years of age prior to the start of the current academic year and who meet residence conditions equivalent to those applying to UK nationals.

(1)

1980 c. 44; section 73(f) was amended by the Teaching and Higher Education Act 1998 (c. 30), section 29(1) and by the Education (Graduate Endowment and Student Support) (Scotland) Act 2001 (asp 6), section 3(2); section 73B was inserted by the Teaching and Higher Education Act 1998, section 29(2) and amended by the Education (Graduate Endowment and Student Support) (Scotland) Act 2001, section 3(3) and by the Income Tax (Earnings and Pensions) Act 2003 (c. 1), Schedule 6, paragraph 149; section 74(1) was amended by the Self-Governing Schools etc. (Scotland) Act 1989 (c. 39), Schedule 10, paragraph 8(17). The functions of the Secretary of State were transferred to the Scottish Ministers by virtue of section 53 of the Scotland Act 1998 (c. 46).

(2)

1983 c. 40; section 1 was relevantly amended by the Education Reform Act 1988 (c. 40), Schedule 12, paragraph 91 and the Further and Higher Education (Scotland) Act 1992 (c. 37), Schedule 9, paragraph 8; section 2(3)(a) and the word "other" in paragraph (b) were repealed by the Teaching and Higher Education Act 1998 (c. 30), Schedule 4. The functions of the Secretary of State were transferred to the Scottish Ministers by virtue of section 53 of the Scotland Act 1998 (c. 46).

(4)

HC 395; relevant amending instrument is HC 194.

(5)

S.I. 1995/1739, amended by S.I. 1997/1049 and S.S.I. 2004/469.

(6)

S.I. 1997/93, amended by S.I. 1997/2008, S.I. 1998/2324 and S.S.I. 2004/469.

(7)

S.I. 1999/1131, amended by S.S.I. 2001/229 and S.S.I. 2004/469.

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