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EU student finance eligibility - discrimination?

Use this section for any queries concerning the EU Settlement Scheme, for applicants holding pre-settled and settled status.

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keloid
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EU student finance eligibility - discrimination?

Post by keloid » Fri Mar 07, 2014 7:03 pm

Hi All

A penny for your thoughts please.

I am UK citizen. My wife is non-EU. We entered the UK under Surinder Singh ruling in March 2012. I have been residing in the EEA all my life - whereas my wife has been in the EEA for less than 3 years.

My wife wants to go to Uni in the UK and as such she wants to apply for student finance/student loan support.

In terms of obtaining student finance support, we have deduced that the best category for her to apply under is as a 'Eu citizen/family member of an EU citizen'.

To qualify under this category, she must show that she is either a EU citizen (obviously she isn't) or that she a family member of an EU citizen - as well as show that she has been residing in the EEA for 3 years prior to the start date of her course. Obviously she fails to meet to criteria as she doesn't meet the residency rules.

However, is this a case of authorities discriminating against non-EU citizens i.e. not affording them the same rights as their EU family members? I myself would be eligible for a student loan if I were applying - so why can't my wife be eligible? This doesn't seem right nor fair - but I'd like to get your thoughts.

Is there any case law I can throw at Student Finance which will help argue my case?

Many thanks

dalebutt
Senior Member
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Re: EU student finance eligibility - discrimination?

Post by dalebutt » Fri Mar 07, 2014 8:34 pm

I do not think it is discriminatory in anyway, even if an EEA/British citizen cannot demonstrate, when asked if they have lived in the EEA for the last 3 years preceding the start of their course, the loan/finance department reserves the right to refuse their application.

When you say your spouse has been living in the EEA for less than 3 years, does that also include the time she has spent in the UK?

chaoclive
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Ireland

Re: EU student finance eligibility - discrimination?

Post by chaoclive » Sat Mar 08, 2014 4:11 am

There is nothing you can do. My brother's ex-girlfriend (dual Irish-American citizen) was rejected for EEA fees and Student Finance as she could not show she was living in the EEA for 3 years. She has an Irish passport...A British citizen would also be rejected for the same reasons (if found out).

keloid
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Re: EU student finance eligibility - discrimination?

Post by keloid » Sat Mar 08, 2014 1:36 pm

Hi Guys

Thanks for your input so far.

Let me explain why I think there is a case for discrimination here - and feel free to shoot me down if you disagree.

As at this moment in time, I qualify for student finance. I meet all the conditions as laid out above. However, my wife, they are saying, does not qualify for student finance as she falls foul of the residency rules.

I thought there was an overriding principle laid out somewhere that a non-EU family member of an EU citizen must not be treated differently to their EU citizen upon entering the EU state? Therefore, if I qualify for student finance, my wife should also qualify.
Let me know your thoughts on this.

I would also like your thoughts on my second point here: If you look at the law/rules under govern whether students qualify for 'home' student fee rates or 'international' fees - under these rules, to be a deemed a home student, the same conditions as the above apply (i.e. must be a family member of a EU citizen and have had 3 years residency in the EEA). If you meet this criteria, you are deemed a home student. However, the was a recent amendment to these particular rules which created an exemption - namely that the 3 year residency rule would not apply in this case to non-EU family members when their EU citizen family member has previously exercised a right to free movement elsewhere in the EU.

If such an exemption has been put in place in the case of assessing students for 'home' rates - why has no similar exemption been implemented for those wanting to receive student finance?

In fact, the reason for the implementation of the aforementioned exemption was because SLC admitted there a case of possible discrimination. When explaining the reason for the exemption, SLC stated that:

"This change removes any possibility of indirect discrimination against non-EU family members of EU nationals."

Source: http://www.practitioners.slc.co.uk/medi ... _final.pdf

Therefore an argument can be made that should an exemption should also have been created for student finance rules? In the absence of such an exemption, a strong case for discrimination could potentially be made? What do you think?

Thanks all.

dalebutt
Senior Member
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Re: EU student finance eligibility - discrimination?

Post by dalebutt » Sat Mar 08, 2014 4:42 pm

As with your second point, you may well have a case if you persevere, the reason why you cannot accuse the department of discrimination is actually very simple, you yourself as a British citizen shall not qualify if you have not lived in the EEA for 3 years preceding start of the course, as this rule affect everybody it cannot be deemed as discriminatory.

In Ireland it is very hard to claim JSA unless you have been accessed as habitually resident in the country, although under EU law one should be able to claim JSA in fact immediately once they can prove that they are searching for job, and are registered with relevant authority, naturally an Irish born and bred will easily pass that test, but an Irish who has been abroad for some time, and came back recently will not pass this test, just the way another EU citizen who just moved to Ireland would expressly fail the test.

It will be hard to win any discrimination claim against them because it affects everybody including the Irish citizens who finds themselves in the unfortunate position.

keloid
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Re: EU student finance eligibility - discrimination?

Post by keloid » Sat Mar 08, 2014 5:29 pm

Hi there

Thanks for your response.

I think we can agree that the line of argument I have presented above is tenuous at best and is unlikely to result in anything positive.

I would now like to get your thoughts on the following, if you would just briefly indulge me.

Let's say that my wife waits a year until she goes to uni. In this way, she will be have been resident in the EEA for 3 years and will definitely qualify for funding.

In one year's time - we have a dilemma as to under which category of finance we apply under.

The question we face is whether we can apply for student finance on the basis of the EEA Migrant Worker category (or a family member of). The benefit of applying under this category, as opposed to applying under the category of 'family members of EU citizens' - is that the former will allow the student (i.e. my wife) to obtain both a Tuition Fee loan AND a Maintenance Loan - whereas the latter cagtegory will simply allow the student to obtain just the Tuition Fee Loan.

To qualify as a family member of an EEA Migrant Worker - the relevant rules are here:

"(a) you must be:

a non-UK EEA national, or a Swiss national, and resident in the UK as a worker; or
the relevant family member of such a worker
and

(b) you must be ordinarily resident in England on the first day of the first academic year of the course (unless you are an EEA or Swiss frontier worker or relevant family member of a frontier worker); and

(c) you must have been ordinarily resident in the UK or elsewhere in the EEA and/or Switzerland for three years before the first day of the first academic year of the course."


My question then is this. I am a UK National who has exercised a right of free movement. We entered the UK on the basis of Surinder Singh case. Is it therefore legal for the EEA Migrant Worker category rules to state that an EEA Migrant Worker can not be a "non-UK EEA national"? This doesn't seem right??

chaoclive
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Ireland

Re: EU student finance eligibility - discrimination?

Post by chaoclive » Sat Mar 08, 2014 5:51 pm

This obviously is the strictest definition of "EEA worker" and does not account for Surinder Singh applications.

I think it's unlikely that we would be able to answer questions on behalf of Student Finance.

Perhaps you might want to drop them an email and explain the situation in detail. Point out the fact that you entered (perfectly legally) under S. Singh and that the website doesn't provide for this. I guess they will come back with something really weak and may not even know what S. Singh is all about. However, you can provide quotes from the legislation to make your point clear. Of course, it'd be best to quote UK sources as opposed to info from other EEA countries.

Another thing you should do is to contact Your Europe Advice (a quick search will pull up their website if you don't know the address). They are really good at giving opinions/advice on what you might be able to do. They don't have legal sway but will let you know how to deal with the situation nonetheless.

Hope you get some answers!

dalebutt
Senior Member
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Re: EU student finance eligibility - discrimination?

Post by dalebutt » Sat Mar 08, 2014 5:57 pm

Your assessment I think (IMO) it is rather a straight forward one to rely on, the rules are quite clear in that you were a worker, and you retained that status upon returning to the United Kingdom, theoretically speaking, I do not see how that application will be defeated. I do agree with your assessment, but the practical implementation might be different, but if you made a claim in case of a refusal, one couldn't say you do not stand a chance.

I will check some cases and post back if I found something.

keloid
Junior Member
Posts: 71
Joined: Mon Oct 24, 2011 10:22 am

Re: EU student finance eligibility - discrimination?

Post by keloid » Wed Apr 23, 2014 4:12 pm

Further to a suggestion above, I contacted Your Europe Advice on this issue.

An extract of their response is as follows:

The Directive provides:

"...the host Member State shall not... be obliged, prior to acquisition of the right of permanent residence, to grant maintenance aid for studies, including vocational training, consisting in student grants or student loans to persons other than workers, self-employed persons, persons who retain such status and members of their families." (Article 24)

Your must enjoy at least the same rights as would be granted to you under EU law if you entered and resided in the territory of another Member State.
This means that both you and your wife are entitled to student grants or student loans on the same basis as other UK nationals.

As a result, the definition of :

"- a non-UK EEA national, or a Swiss national, and resident in the UK as a worker; or
- the relevant family member of such a worker"

in paragraph 5 of the webpage:

http://www.ukcisa.org.uk/International- ... nd-Islands

should also apply to the spouse of a UK national who has exercised his right of residence under Directive 2004/38/EC in another EU member state and is resident in the UK as a worker.”


It appears then that, as first thought in this thread, the Student Loan Company are discriminating against UK Migrant Workers.

I welcome your thoughts...

Freda
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Location: UK

Re: EU student finance eligibility - discrimination?

Post by Freda » Tue May 13, 2014 3:38 pm

Hi,
I am in the same position (Im from UK, husband non EEA living in UK Since 2013 having come from Ireland using SS route), my husband wants to start studying in September so we want to apply for funding (we are in Scotland so its through SAAS) but don't meet the 3 year residency requirement. Just wondering if you have had any success, found some good laws to quote in your application or anything that could help? I think I will write to Your Europe too as they seemed to give some encouraging facts. Thank you for any help.

keloid
Junior Member
Posts: 71
Joined: Mon Oct 24, 2011 10:22 am

Re: EU student finance eligibility - discrimination?

Post by keloid » Tue May 13, 2014 4:10 pm

Hi there,

Basically, the 3 residency requirement applies to all categories – it is not something you can get around.

What you can dispute, and what Your Europe have indicated is wrong, as well as member of this board above, is that a UK citizen should not be deemed ineligible under the EEA Migrant Worker category simply due to UK citizen being of British nationality. That is patently wrong; a British citizen can be an EEA Worker, as we all know. It is just a matter of making the Students Loan Company see sense.

Hope this helps.

Topsibelle
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Re: EU student finance eligibility - discrimination?

Post by Topsibelle » Fri Aug 22, 2014 5:36 pm

Hello everybody,

I need some help here pls. I got the derivative residence card in May as my two kids are British and EU citizen respectively. I applied to do my Masters in Social Work and got offered admission to one of the universities in London. The university said they will definitely be include me on the list for NHS bursary. I applied for the bursary and NHS has come back to say that I am ineligible on residence criteria. Here is the extract from the email I got;

"Thank you for your query regarding your ineligibility for a social work bursary on residency grounds. Your Home Office documents show that you do not have indefinite leave to remain in the UK and you only have a derivative residence card which only allows you to live and work in the UK as long as you remain the main carer of someone who has a right to live in the UK. Any time spent in the UK with a derivative right of residence would not count towards any application for indefinite leave to remain. Therefore you do not meet the residency criteria for a social work bursary"

This is strange as derivative implies that you get the same rights and benefits as from your EEA/ British family member. The criteria on their website states, "As well as being ordinarily resident in England on the first day of your course, European Union nationals must have been living in the United Kingdom, the Channel Islands or the Isle of Man for the three years immediately before the first day of the first academic year of the course and 51% of those three years must have been in England".

I can prove that I have been in the UK for the last 11 years so able to prove the 3 years residence rule. I honestly am at a cross road and need help to prove my eligibility. University starts in September and I have little time and energy to fight. Pls help me.

Thanks

amillesauce11
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Re: EU student finance eligibility - discrimination?

Post by amillesauce11 » Fri Feb 03, 2017 2:02 am

Any luck I have the same problem ?

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CR001
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Re: EU student finance eligibility - discrimination?

Post by CR001 » Fri Feb 03, 2017 8:47 am

amillesauce11 wrote:Any luck I have the same problem ?
This topic is from 2014. Suggest start your own topic with your circumstances and questions.
Char (CR001 not Casa)
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Please DO NOT send me a PM for immigration advice. I reserve the right to ignore the PM and not respond.

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