The current EU regulatory regime
The EU has very limited competence in the area of education policy; in particular, the provision and regulation of the HE sector (including access to student finance) is a matter for Member States.
Higher education policy, including on student finance, is a devolved matter and so the systems and eligibility criteria vary across the DAs. For example, each DA has responsibility for setting tuition fee levels, and eligibility for maintenance support may differ according to the length of time an EU national living in the UK and Islands has resided here prior to study. However, responsibility for EU and international foreign policy, Research Councils, and immigration is reserved. As such, they remain the responsibility of the UK Parliament alone. UK administrations collaborate on policy development and delivery to ensure that students from all UK domiciles are supported with their studies wherever they choose to study in the UK.
Students – ability to study in the UK
The primary source of EU law governing the free movement of EU students is Article 21 of the Treaty on the Functioning of the European Union (the TFEU) and, more specifically, Article 7(1)(c) of the Free Movement Directive (Directive 2004/38/EC). Article 7(1)(c) which grants EU students a right to reside in another Member State for more than three months if they have comprehensive sickness insurance and sufficient resources. In addition, such students benefit from the prohibition against discrimination on the grounds of nationality in Article 18 of the TFEU, which is mirrored in Article 24(1) of the Free Movement Directive. However, Article 24(2) of the Free Movement Directive is a specific derogation from the principle of equal treatment for maintenance support (it does not apply to migrant workers and selfemployed persons and their family members).
Students – ability to access financial support
Eligible EU nationals resident in the European Economic Area (EEA) or Switzerland and wishing to study at an English university may qualify for tuition fee loans from Student Finance England when undertaking HE, if they meet specific residency requirements. They may also be entitled to “home fee status” which means HEIs cannot charge these students tuition fees higher than those they charge UK students.
UK nationals studying in the EU are treated in the same way as the home nationals of the member state they are studying in with regard to home fee status and access to any support for fees. EU nationals ordinarily resident in England on the first day of their course and who have been resident in the UK for at least five years qualify for maintenance loans from Student Finance England. The Government has confirmed funding and home fee status in England for eligible EU students starting courses in academic year 2018/19 will remain in place. All the DAs have provided similar assurances for eligible EU students starting courses in academic year 2018/19.
The regulations governing student finance eligibility cover different groups. The Education (Student Support) Regulations 2011 set out categories of eligible persons for student support in England. Generally, student support is provided to persons who are either settled in the UK or to whom there is a legal duty to provide support.
Persons in the latter category include:
• EU nationals (and their family members) who are undertaking an eligible course in England and who meet the residency test (ordinary residence in the EEA and Switzerland throughout the three-year period preceding the first day of the first academic year of the course);
• EEA and Swiss migrant workers (and family of EEA migrant workers / children of Swiss workers) (pursuant to Article 18 and 45 of the TFEU;Directive 2004/38/EC and the Swiss Agreement (2006/245/EC)). To be eligible for support such persons have to be ordinarily resident in England on the first day of the first academic year of the course and be ordinarily resident in the EEA / Switzerland for the preceding three years; and
• Children of Turkish workers (pursuant to the European Community Association Agreement with Turkey). To be eligible under this category, eligible persons have to be resident in England on the first day of the first academic year of the course and be ordinarily resident in the EEA / Switzerland and Turkey throughout the preceding three years.
Gibraltarians and other British Overseas Territories’ citizens (BOT) are currently eligible for home fee status and tuition fee caps for Higher Education courses in England as set out in the Education (Fees and Awards) (England) Regulations 2007 and the Student Fees (Qualifying Courses and Persons) (England) Regulations 2007. To qualify, students must be EU citizens and must have been living in the Overseas Territories, European Economic Area or Switzerland for the three years prior to the first academic year of the course.
The free movement of EU nationals and workers principally flows from Article 21 and 45 of the Treaty on the Functioning of the European Union (the TFEU), the Free Movement Directive 2004/38/EC and Regulation 492/2011 which provide rights to move and reside freely within the territory of the Member States.
HE providers share personal data across EU borders and outside the EU in accordance with EU data protection law. Transferring personal data across the EU is critical for developing research between institutions. The UK’s Data Protection Act 1998 is derived from the 1995 EU Data Protection Directive. This is currently being repealed and replaced by the Data Protection Bill, reflecting the EU’s General Data Protection Regulation, which comes into effect in May 2018. It puts in place EU-wide rules about the sharing of personal data and makes special provision for the transfer of personal data to countries outside the EEA.
Existing frameworks for how trade is facilitated between countries in this sector
The arrangements described in this section are examples of existing arrangements between countries. They should not be taken to represent the options being considered by the Government for the future economic relationship between the UK and the EU. The Government has been clear that it is seeking pragmatic and innovative solutions to issues related to the future deep and special partnership thatwe want with the European Union.
A range of preferential trade agreements and bilateral economic and trade arrangements exist between global trading partners.The international baseline for trade in services is the World Trade Organisation’s *WTO) General Agreement on Trade in Services (GATS). All WTO Members are parties to GATS which sets out general rules, principles and obligations as a framework for trade in services, plus a schedule of commitments which set out how open and non-discriminatory parties commit to be across the service sectors covered.
GATS also sets out ‘how’ parties will allow services to be traded and this is split into four principal ‘modes’:
1) where a product rather than a service supplier/consumercrosses a border;
2) where the consumer of the service crosses a border (for example an inbound tourist);
3) where the company crosses a border (for example aretail chain opening a new establishment in another country); and
4) where the service provider moves (for example a lawyer spends nine months working in her firm’s office in another country). Commitments taken by parties vary and parties can unilaterally choose to improve their GATS offers at any point (subject to a certification procedure) or lower the level of their commitments, but in order to do so they will be expected to offer compensatory concessions.
With regards to the HE sector, the UK has taken a number of commitments relating to the privately-funded education sector under this framework:
• Mode 1: the UK does not limit the cross-border supply of HE services and agrees to treat all WTO members in the same way as domestic service providers, meaning students can access courses online and companies can sell online courses without facing any discrimination (they would still have to comply with all domestic law, which cannot discriminate against a firm based on its country of origin);
• Mode 2: the UK does not limit the movement of UK students to study or receive higher educational services abroad;
• Mode 3: the UK does not limit commercial presence, meaning companies from WTO countries can set up education institutions in the UK (as long as they comply with domestic legislation) and they will not be discriminated against based on their country of origin; and
• Mode 4: the UK takes commitments on temporary movement of service professionals in HE in specifically defined categories: Intra-Corporate Transfers and Business Visitors.
The UK is a member of the WTO in its own right, but its current commitments are listed in wider EU schedules.The Department for International Trade is leading a process to create UK-only schedules – reflecting our current level of openness.
All of the EU’s existing EU trade deals, and those currently under development, look to build on the GATS baseline by expanding the commitments of EU Member States to open up their services markets to each other. The most ambitious of these is the EU-Canada Comprehensive Economic and Trade Agreement (CETA). Other plurilateral agreements also look to further liberalise the GATS baseline for trade in services. Although negotiations are currently on hold, the most comprehensive attempt so far is the proposed Trade in Services Agreement (TiSA) between 23 different parties.