Granted pre-settled status or settled status under the EU Settlement Scheme
The easiest way to confirm to your institution that you are a ‘person with protected rights’ is if you have pre-settled or settled status under the EU Settlement Scheme. The Scottish Government has confirmed to us that it will consider you to be a ‘person with protected rights’ if you have been granted pre-settled or settled status under the EU Settlement Scheme.
Applying under the EU Settlement Scheme (EUSS)
You are a ‘person with protected rights’ if you are a person within the personal scope of Article 10 (personal scope) of the EU Withdrawal Agreement, Article 9 (personal scope) of the EEA EFTA Separation Agreement, or Article 10 (personal scope) of the Swiss Citizens’ Rights Agreement and:
- you made an application under the EUSS and you are still waiting for a decision on your application, or
- you are waiting for the outcome of an in-time administrative review or appeal about an application made under the EUSS, or you are still within the time limit for submitting one.
You must either:
- have been lawfully resident in the UK by virtue of European rights before 11.00pm on 31 December 2020. Some people who were physically absent from the UK on that date will still count as having been lawfully resident in the UK on that date. The following types of absence were allowed for these purposes: absences that didn’t exceed 6 months in total during that year; absence on compulsory military service; one absence not exceeding 12 months for an important reason such as pregnancy and childbirth, serious illness, study or vocational training, or an overseas posting; or
- have had a right of permanent residence under European law in the UK before 11.00pm on 31 December 2020. Anyone who had had a right of permanent residence under European law in the UK in the past was treated as meeting this, provided they had not been absent from the UK for more than the five years leading up to 10.59pm on 31 December 2020.
Deadlines for applying under the EUSS
Your application must be, or have been, valid under the validity requirements of the scheme, and you must have not withdrawn your application. The deadline for applying under the EUSS was the end of 30 June 2021. However, the Scottish Government has acknowledged that there may be people with reasonable grounds for making, or having made, a late application to the scheme. In EU Residence Guide - Tuition Fee Status of Students Starting Studies in 2021-22 (download, version 5, October 2021) (pages 4-5), published on behalf of the Scottish Government by SAAS, it states the following:
“[…] Once a valid application has been made to the EUSS (evidenced by receipt of a Certificate of Application (COA)), the applicant will have temporary protection, pending the outcome of that application. This is required by the Citizens Rights’ Agreements.
“For those who have made a late application to the EUSS, and for those who are still awaiting an EUSS decision or the outcome of an appeal, SAAS will continue to process applications for [Student Support] in the same way for all students who apply to the EUSS […] This will involve SAAS making an initial assessment [against the eligibility criteria in the regulations] and thereafter contact will be made with students at a later date to seek confirmation of the EUSS application outcome. If evidence is provided that the student has later been granted Pre-settled or Settled status, SAAS will continue to provide [Student Support] to the student or, if the EUSS application has been unsuccessful, the [Student Support] will be withdrawn […]
“The Scottish Government would expect [education] institutions to apply a similar approach when assessing home fee status for students who make late applications to the EUSS […]”
Family members applying under the EUSS
The Scottish Government has also acknowledged the position of ‘Joining Family Members of EEA or Swiss nationals’, who apply under the EUSS. In EU Residence Guide - Tuition Fee Status of Students Starting Studies in 2021-22 (download, version 5, October 2021) (page 5) it states:
“People who are family members of EEA or Swiss nationals, who arrive in the UK after 1st April 2021, have three months to apply to the EUSS from the date they arrive in the UK. They will have temporary protection and will therefore be treated as having citizens’ rights for the purposes of eligibility for home fee status and student support during those three months, and pending the outcome of any EUSS application made during that period (and the period of time during any appeal). The joining family member must have lived in the UK, Gibraltar, EEA and Switzerland for at least the last three years before the course starts.
“SAAS will assess students in this category for home fee support in line with any student who has made a late applicants [sic] to the EUSS as set out above. SAAS will also require additional information to evidence the relationship with the family member.
“A family member may also apply to the EUSS after the 3 month deadline if they have reasonable grounds for making a late application (as set out above). If the family member’s application to the EUSS has not been finally determined before the start of the academic year, they will continue be afforded temporary protection and awarded student support as appropriate.
“The Scottish Government would expect institutions to apply a similar approach when assessing home fee status for […] any joining family members, in light of their protected rights under the Withdrawal Agreement.”
The definitions of family members used in immigration law or in the Withdrawal Agreement are wider than those used in the fees regulations. We will seek clarity from the Scottish Government as to what SAAS would expect to see regarding “additional information to evidence the relationship with the family member”. It seems reasonable that, for a joining family member to be considered as a person with protected rights, fee status decision makers should be comfortable considering a person covered by the definition of family members in the fees regulations (see Family members above), provided that family member has made a valid application under the EUSS, either in time or late, and is still awaiting the result of that application. However, we expect that the guidance in EU Residence Guide - Tuition Fee Status of Students Starting Studies in 2021-22 is intended to also cover wider family members, in line with all those who are permitted to apply under the EUSS. See Apply to the EU Settlement Scheme (settled and pre-settled status) on the Home Office website for the criteria eligible family members need to meet to apply under the EU Settlement Scheme.
Irish citizen
You are a ‘person with protected rights’ if you are a person within the personal scope of Article 10 (personal scope) of the EU Withdrawal Agreement, Article 9 (personal scope) of the EEA EFTA Separation Agreement, or Article 10 (personal scope) of the Swiss Citizens’ Rights Agreement and you are an Irish citizen. You do not have to have made a valid application under the EU Settlement Scheme but you would have to be granted permission under the scheme if you were to make such an application; this means that you must have been lawfully resident in the UK by virtue of European rights before 11.00pm on 31 December 2020.
Family member of a 'relevant person of Northern Ireland'
You are a ‘person with protected rights’ if you are a family member of a 'relevant person of Northern Ireland' (see below). You will be the ‘family member’ of a ‘relevant person of Northern Ireland’ if you are able to satisfy one of the criteria in the definition of 'famly member' (see above). The regulations also say that, to be considered as a family member of a relevant person of Northern Ireland, you must also have pre-settled status or settled status under the EU Settlement Scheme. Therefore, if you have pre-settled or settled status under the EU Settlement Scheme, it is unlikely that your institution will need to also consider whether you are a family member of a relevant person of Northern Ireland.
