Title, commencement and application

1.-(1) The title of these Regulations is the Higher Education (Qualifying Courses, Qualifying Persons and Supplementary Provision) (Wales) Regulations 2015 and they come into force on 31 July 2015.

(2) These Regulations apply in relation to Wales.

Interpretation

2.-(1) In these Regulations-

"the 2004 Act" ("Deddf 2004") means the Higher Education Act 2004(2);

"the 2015 Act" ("Deddf 2015") means the Higher Education (Wales) Act 2015;

"the 2015 Regulations" ("Rheoliadau 2015") means the Education (Student Support) (Wales) Regulations 2015(3);

"course for the initial training of teachers" ("cwrs ar gyfer hyfforddiant cychwynnol athrawon") includes such a course leading to a first degree;

"course of higher education" ("cwrs addysg uwch") means a course falling within paragraph 1 of Schedule 6 to the Education Reform Act 1988(4);

"end-on course" ("cwrs penben") has the meaning given in regulation 2(1) of the 2015 Regulations;

"equivalent or lower qualification" ("cymhwyster cyfwerth neu is") means a qualification determined by the Welsh Ministers in accordance with paragraph (2) to be an equivalent or lower qualification;

"preceding course" ("cwrs blaenorol") means a course mentioned in paragraph 2 or 3 of Schedule 2 to the 2015 Regulations or a course for a foundation degree or a course for the initial training of teachers which (disregarding any intervening vacation) a person ceases to attend immediately before beginning to attend an end-on course;

"qualified teacher" ("athro cymwysedig neu athrawes gymwysedig") has the meaning given in section 132(1) of the Education Act 2002(5); and

"single course" ("cwrs sengl") means a course to which regulation 5(6) of the 2015 Regulations applies and which falls within the description of a course in that regulation.

(2) The Welsh Ministers may determine that a qualification is an equivalent or lower qualification if-

(a)the person holds a higher education qualification from an institution in the United Kingdom; and

(b)the qualification referred to in sub-paragraph (a) is of an academic level which is equivalent to or higher than a qualification to which the current course leads.

Prescribed description of a qualifying course

3.-(1) Subject to paragraphs (2), (3) and (4), a qualifying course for the purpose of section 5(2)(b) of the 2015 Act is a course of higher education capable of being designated by regulations made under section 22 of the Teaching and Higher Education Act 1998(6)(regardless of whether the institution providing the course is publically funded for the purposes of those regulations).

(2) A course is not a qualifying course if the first academic year of the course began before 1 September 2012.

(3) A course is not a qualifying course if-

(a)it is an end-on course; and

(b)the preceding course was not a qualifying course by reason of paragraph (2).

(4) A course is not a qualifying course if it is a part-time course.

Prescribed description of a qualifying person

4.-(1) A qualifying person who is prescribed for the purposes of section 5(5) of the 2015 Act is a person who falls within the Schedule on the first day of an academic year, other than-

(a)a person who is not eligible for support under the 2015 Regulations by reason of regulation 4(3)(c), (d), (e) or (f) of those Regulations; or

(b)a person mentioned in paragraphs (2), (3), or (8).

(2) Subject to the exceptions in paragraphs (4), (5) (6) and (7), a person is not a qualifying person if-

(a)the person holds a higher education qualification; and

(b)the qualifying course leads to a qualification which is an equivalent or lower qualification.

(3) A person is not a qualifying person if-

(a)the person ceases a course ("the first course") which is not a qualifying course;

(b)disregarding any intervening vacation, the person immediately attends another course which is a qualifying course; and

(c)the first course was not a qualifying course by reason of regulation 3(2).

(4) Paragraph (2) does not apply where-

(a)the qualifying course is a course for the initial training of teachers;

(b)the duration of the course does not exceed two years (the duration of a part-time course being expressed as its full-time equivalent); and

(c)the qualifying person is not a qualified teacher.

(5) Paragraph (2) does not apply in respect of any part of a single course where-

(a)the single course leads to an honours degree being conferred on the qualifying person from an institution in the United Kingdom before the final degree or equivalent qualification; and

(b)the only honours degree held by the qualifying person was received as part of that single course.

(6) Paragraph (2) does not apply where the qualifying course is a foundation degree.

(7) Paragraph (2) does not apply where the qualifying course leads to qualification as a social worker, medical doctor, dentist, veterinary surgeon or architect.

(8) Where an event occurs in the course of an academic year and as a result a person falls within the Schedule in the course of an academic year, that person is not a qualifying person in respect of the academic year in which the relevant event occurred or any previous academic year.

Supplementary provision

5.-(1) The words "provided in Wales" in section 5(2)(b) of the 2015 Act have effect so as to include the preparation, in Wales, of the materials necessary to deliver a particular qualifying course, regardless of whether students are required to attend the institution providing the course.

(2) The words "provided in Wales" in section 17(1) of the 2015 Act have effect so as to include the preparation, in Wales, of the materials necessary to provide education, regardless of whether students are required to attend an institution to receive that education.

6.  For the purposes of paragraph 29(3) of the Schedule to the 2015 Act, a 2004 Act plan includes a proposed plan which HEFCW receives as relevant authority(7) under section 34 of the 2004 Act before 1 August 2015 but which is not approved by HEFCW until after that date following a review under regulations 11 to 18 of the Student Fees (Approved Plans) (Wales) Regulations 2011(8).

Regulation 4

SCHEDULE

1.-(1) For the purposes of this Schedule-

"academic year" ("blwyddyn academaidd") means the period of twelve months beginning on 1 January, 1 April, 1 July or 1 September of the calendar year in which the academic year of the course in question begins according to whether that academic year begins on or after 1 January and before 1 April, on or after 1 April and before 1 July, on or after 1 July and before 1 August or on or after 1 August and on or before 31 December, respectively;

"Directive 2004/38" ("Cyfarwyddeb 2004/38") means Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the rights of citizens of the Union and their family members to move and reside freely in the territory of the Member States(9);

"EEA frontier self-employed person" ("person hunangyflogedig ffin yr AEE") means an EEA national who-

"EEA frontier worker" ("gweithiwr ffin yr AEE") means an EEA national who-

"EEA migrant worker" ("gweithiwr mudol o'r AEE") means an EEA national who is a worker, other than an EEA frontier worker, in the United Kingdom;

"EEA national" ("gwladolyn o'r AEE") means a national of an EEA State other than the United Kingdom;

"EEA self-employed person" ("person hunangyflogedig o'r AEE") means an EEA national who is a self-employed person, other than an EEA frontier self-employed person, in the United Kingdom;

"employed person" ("person cyflogedig") means an employed person within the meaning of Annex 1 to the Swiss Agreement;

"employment" ("cyflogaeth") means full-time or part-time employment;

"EU national" ("gwladolyn o'r UE") means a national of a Member State of the European Union;

"European Economic Area" ("Ardal Economaidd Ewropeaidd") means the area comprised by the EEA States;

"European Union" ("yr Undeb Ewropeaidd") means the territory comprised by the Member States of the European Union as constituted from time to time;

"family member" ("aelod o deulu") means-

"the Islands" ("yr Ynysoedd") means the Channel Islands and the Isle of Man;

"overseas territories" ("tiriogaethau tramor") means Anguilla; Aruba; Bermuda; British Antarctic Territory; British Indian Ocean Territory; British Virgin Islands; Cayman Islands; Falkland Islands; Faroe Islands; French Polynesia; French Southern and Antarctic Territories; Mayotte; Greenland; Montserrat; Netherlands Antilles (Bonaire, Curacao, Saba, Sint Eustatius and Sint Maarten); Pitcairn, Henderson, Ducie and Oeno Islands; South Georgia and the South Sandwich Islands; St-Barthélemy; St Helena and Dependencies (Ascension Island and Tristan de Cunha); St Pierre et Miquelon; the Territory of New Caledonia and Dependencies; Turks and Caicos Islands and Wallis and Futuna;

"person with leave to enter or remain" ("person sydd â chaniatâd i ddod i mewn neu i aros") means a person ("P")-

"refugee" ("ffoadur") means a person who is recognised by Her Majesty's government as a refugee within the meaning of the United Nations Convention relating to the Status of Refugees done at Geneva on 28 July 1951(12) as extended by the Protocol thereto which entered into force on 4 October 1967(13);

"right of permanent residence" ("hawl i breswylio'n barhaol") means a right arising under Directive 2004/38 to reside in the United Kingdom permanently without restriction;

"self-employed person" ("person hunangyflogedig") means-

"settled" ("wedi setlo") has the meaning given by section 33(2A) of the Immigration Act 1971(14);

"Swiss Agreement" ("Cytundeb y Swistir") means the Agreement between the European Community and its Member States, of the one part, and the Swiss Confederation, of the other, on the Free Movement of Persons signed at Luxembourg on 21 June 1999(15) and which came into force on 1 June 2002;

"Swiss employed person" ("person cyflogedig Swisaidd") means a Swiss national who is an employed person, other than a Swiss frontier employed person, in the United Kingdom;

"Swiss frontier employed person" ("person cyflogedig ffin y Swistir") means a Swiss national who-

"Swiss frontier self-employed person" ("person hunangyflogedig ffin y Swistir") means a Swiss national who-

"Swiss self-employed person" ("person hunangyflogedig Swisaidd") means a Swiss national who is a self-employed person, other than a Swiss frontier self-employed person, in the United Kingdom;

"Turkish worker" ("gweithiwr Twrcaidd") means a Turkish national who-

"worker" ("gweithiwr") means a worker within the meaning of Article 7 of Directive 2004/38 or the EEA Agreement as the case may be.

(2) For the purposes of this Schedule, "parent" ("rhiant") includes a guardian, any other person having parental responsibility for a child and any person having care of a child and "child" ("plentyn") is to be construed accordingly.

(3) For the purposes of this Schedule, a person ("P" in this definition) is to be treated as ordinarily resident in the United Kingdom, the United Kingdom and Islands, in the territory comprising the European Economic Area and Switzerland, in the territory comprising the European Economic Area, Switzerland and the overseas territories, or in the territory comprising the European Economic Area, Switzerland, Turkey and the overseas territories if P would have been so resident but for the fact that-

(a)P;

(b)P's spouse or civil partner;

(c)P's parent; or

(d)in the case of dependent direct relative in the ascending line, P's child or child's spouse or civil partner,

is or was temporarily employed outside the area in question.

(4) For the purposes of sub-paragraph (3), temporary employment includes-

(a)in the case of members of the regular naval, military or air forces of the Crown, any period which they serve outside the United Kingdom as members of such forces;

(b)in the case of members of the regular armed forces of an EEA State or Switzerland, any period which they serve outside the territory comprising the European Economic Area and Switzerland as members of such forces; and

(c)in the case of members of the regular armed forces of Turkey, any period which they serve outside the territory comprising the European Economic Area, Switzerland and Turkey as members of such forces.

(5) For the purposes of this Schedule an area which-

(a)was previously not part of the European Union or the European Economic Area; but

(b)at any time before or after these Regulations come into force has become part of one or the other or both of these areas,

is to be considered to have always been a part of the European Economic Area.

(6) For the purposes of this Schedule a person who is ordinarily resident in Wales, England, Scotland, Northern Ireland or the Islands having moved from one of those areas for the purpose of undertaking-

(a)the present course; or

(b)a course which, disregarding any intervening vacation, the person undertook immediately before undertaking the present course,

is to be considered to be ordinarily resident in the place from which the person moved.

Persons who are settled in the United Kingdom

2.-(1) A person who on the first day of the first academic year of the course-

(a)is settled in the United Kingdom other than by reason of having acquired the right of permanent residence;

(b)is ordinarily resident in the United Kingdom;

(c)has been ordinarily resident in the United Kingdom and Islands throughout the three-year period preceding the first day of the first academic year of the course; and

(d)subject to sub-paragraph (2), whose residence in the United Kingdom and Islands has not during any part of the period referred to in paragraph (c) been wholly or mainly for the purpose of receiving full-time education.

(2) Paragraph (d) of sub-paragraph (1) does not apply to a person who is treated as being ordinarily resident in the United Kingdom and Islands in accordance with paragraph 1(3).

3.  A person who-

(a)is settled in the United Kingdom by virtue of having acquired the right of permanent residence on the first day of an academic year of the course;

(b)is ordinarily resident in the United Kingdom on the first day of the first academic year of the course;

(c)has been ordinarily resident in the United Kingdom and Islands throughout the three-year period preceding the first day of the first academic year of the course; and

(d)in a case where the residence referred to in sub-paragraph (c) was wholly or mainly for the purpose of receiving full-time education, was ordinarily resident in the territory comprising the European Economic Area, Switzerland and the overseas territories immediately before the period of residence referred to in sub-paragraph (c).

Refugees and their family members

4.-(1) A person who-

(a)is a refugee;

(b)is ordinarily resident in the United Kingdom and Islands and has not ceased to be so resident since the person was recognised as a refugee; and

(c)is ordinarily resident in the United Kingdom on the first day of the first academic year of the course.

(2) A person who-

(a)is the spouse or civil partner of a refugee;

(b)was the spouse or civil partner of the refugee on the date on which the refugee made an application for asylum;

(c)is ordinarily resident in the United Kingdom and Islands and has not ceased to be so resident since the refugee was given leave to remain in the United Kingdom; and

(d)is ordinarily resident in the United Kingdom on the first day of the first academic year of the course.

(3) A person who-

(a)is the child of a refugee or the child of the spouse or civil partner of a refugee;

(b)on the date on which the refugee applied for asylum, was the child of the refugee or the child of a person who was the spouse or civil partner of the refugee on that date;

(c)was under 18 on the date on which the refugee applied for asylum;

(d)is ordinarily resident in the United Kingdom and Islands and has not ceased to be so resident since the refugee was given leave to remain in the United Kingdom; and

(e)is ordinarily resident in the United Kingdom on the first day of the first academic year of the course.

Persons with leave to enter or remain and their family members

5.-(1) A person-

(a)with leave to enter or remain; and

(b)who is ordinarily resident in the United Kingdom on the first day of the first academic year of the course.

(2) A person who-

(a)is the spouse or civil partner of a person with leave to enter or remain;

(b)was the spouse or civil partner of the person with leave to enter or remain on the date on which that person made-

(i)the application for asylum; or

(ii)the application for discretionary leave, where no application for asylum was made; and

(c)is ordinarily resident in the United Kingdom on the first day of the first academic year of the course.

(3) A person-

(a)who is the child of a person with leave to enter or remain or the child of the spouse or civil partner of a person with leave to enter or remain;

(b)who, on the date on which the person with leave to enter or remain made-

(i)the application for asylum; or

(ii)the application for discretionary leave, where no application for asylum was made,

was the child of that person or the child of a person who was the spouse or civil partner of the person with leave to enter or remain on that date;

(c)who was under 18 on the date on which the person with leave to enter or remain made-

(i)the application for asylum; or

(ii)the application for discretionary leave, where no application for asylum was made; and

(d)who is ordinarily resident in the United Kingdom on the first day of the first academic year of the course.

Workers, employed persons, self-employed persons and their family members

6.-(1) A person who-

(a)is-

(i)an EEA migrant worker or an EEA self-employed person;

(ii)a Swiss employed person or a Swiss self-employed person;

(iii)a family member of a person mentioned in sub-paragraph (i) or (ii);

(iv)an EEA frontier worker or an EEA frontier self-employed person;

(v)a Swiss frontier employed person or a Swiss frontier self-employed person; or

(vi)a family member of a person mentioned in sub-paragraph (iv) or (v);

(b)subject to sub-paragraph (2), is ordinarily resident in the United Kingdom on the first day of the first academic year of the course; and

(c)has been ordinarily resident in the territory comprising the European Economic Area, Switzerland and the overseas territories throughout the three-year period preceding the first day of the first academic year of the course.

(2) Paragraph (b) of sub-paragraph (1) does not apply where the person falls within paragraph (a)(iv), (v) or (vi) of that sub-paragraph.

7.  A person who-

(a)is ordinarily resident in the United Kingdom on the first day of the first academic year of the course;

(b)has been ordinarily resident in the territory comprising the European Economic Area, Switzerland and the overseas territories throughout the three-year period preceding the first day of the first academic year of the course; and

(c)is entitled to support by virtue of Article 10 of Regulation (EU) No 492/2011 of the European Parliament and of the Council of 5 April 2011 on the freedom of movement for workers within the Union(16), as extended by the EEA Agreement.

Persons who are settled in the United Kingdom and have exercised a right of residence elsewhere

8.-(1) A person who-

(a)is settled in the United Kingdom;

(b)left the United Kingdom and exercised a right of residence after having been settled in the United Kingdom;

(c)is ordinarily resident in the United Kingdom on the day on which the first term of the first academic year begins;

(d)has been ordinarily resident in the territory comprising the European Economic Area, Switzerland and the overseas territories throughout the three-year period preceding the first day of the first academic year of the course; and

(e)in a case where the ordinary residence referred to in paragraph (d) was wholly or mainly for the purposes of receiving full-time education, was ordinarily resident in the territory comprising the European Economic Area and Switzerland immediately before the period of ordinary residence referred to in paragraph (d).

(2) For the purposes of this paragraph, a person ("A" in this sub-paragraph) has exercised a right of residence-

(a)where A is a United Kingdom national, a family member of a United Kingdom national for the purposes of Article 7 of Directive 2004/38 (or corresponding purposes under the EEA Agreement or Swiss Agreement) or a person who has a right of permanent residence, A has exercised a right under Article 7 of Directive 2004/38 or any equivalent right under the EEA Agreement or Swiss Agreement in a state other than the United Kingdom; or

(b)where A is settled in the United Kingdom and has a right of permanent residence, A goes to the state within the territory comprising the European Economic Area and Switzerland of which A is a national or of which the person in relation to whom A is a family member is a national.

EU nationals

9.-(1) A person who-

(a)is either-

(i)an EU national on the first day of an academic year of the course; or

(ii)a family member of a such a person;

(b)is undertaking the course in the United Kingdom;

(c)subject to sub-paragraph (2), has been ordinarily resident in the territory comprising the European Economic Area, Switzerland and the overseas territories throughout the three-year period preceding the first day of the first academic year of the course; and

(d)subject to sub-paragraph (3), whose ordinary residence in the relevant territory has not during any part of the period referred to in paragraph (c) been wholly or mainly for the purpose of receiving full-time education.

(2) Paragraph (c) of sub-paragraph (1) does not apply to a family member of an EU national where that EU national-

(a)is-

(i)a United Kingdom national who has exercised a right to reside in the territory of another Member State under Article 7(1) of Directive 2004/38; or

(ii)not a United Kingdom national; and

(b)has been ordinarily resident in the territory comprising the European Economic Area, Switzerland and the overseas territories throughout the three-year period preceding the first day of the first academic year of the course.

(3) Paragraph (d) of sub-paragraph (1) does not apply to a person who is treated as being ordinarily resident in the relevant territory in accordance with paragraph 1(3).

10.-(1) A person who-

(a)is an EU national other than a United Kingdom national on the first day of the first academic year of the course;

(b)is ordinarily resident in the United Kingdom on the first day of the first academic year of the course;

(c)has been ordinarily resident in the United Kingdom and Islands throughout the three-year period immediately preceding the first day of the first academic year of the course; and

(d)in a case where the ordinary residence referred to in paragraph (c) was wholly or mainly for the purpose of receiving full-time education, was ordinarily resident in the territory comprising the European Economic Area, Switzerland and the overseas territories immediately prior to the period of ordinary residence referred to in paragraph (c).

(2) Where a state accedes to the European Union after the first day of the first academic year of the course and a person is a national of that state, the requirement in paragraph (a) of sub-paragraph (1) to be an EU national other than a United Kingdom national on the first day of the first academic year of the course is treated as being satisfied.

Children of Swiss nationals

11.  A person who-

(a)is the child of a Swiss national who is entitled to support in the United Kingdom by virtue of Article 3(6) of Annex 1 to the Swiss Agreement;

(b)is ordinarily resident in the United Kingdom on the first day of the first academic year of the course;

(c)has been ordinarily resident in the territory comprising the European Economic Area, Switzerland and the overseas territories throughout the three-year period preceding the first day of the first academic year of the course; and

(d)in a case where the ordinary residence referred to in sub-paragraph (c) was wholly or mainly for the purpose of receiving full-time education, was ordinarily resident in the territory comprising the European Economic Area and Switzerland immediately before the period of ordinary residence referred to in sub-paragraph (c).

Children of Turkish workers

12.  A person who-

(a)is the child of a Turkish worker;

(b)is ordinarily resident in the United Kingdom on the first day of the first academic year of the course; and

(c)has been ordinarily resident in the territory comprising the European Economic Area, Switzerland, Turkey and the overseas territories throughout the three-year period preceding the first day of the first academic year of the course.

EXPLANATORY NOTE

(This note is not part of the Regulations)

These Regulations prescribe the qualifying courses and qualifying persons for the purposes of section 5 of the Higher Education (Wales) Act 2015 ("the 2015 Act") which sets out that fee and access plans must specify (or provide for the determination of) fee limits in relation to qualifying courses each academic year.

Fee limits are the maximum amount which a qualifying person will have to pay an institution for undertaking a qualifying course.

Section 5(2)(b) of the 2015 Act enables the Welsh Ministers to prescribe a description of qualifying courses, and section 5(5)(b) enables them to prescribe classes of persons as qualifying persons.

The qualifying courses prescribed by regulation 3 are those courses which are capable of being designated by regulations made under section 22 of the Teaching and Higher Education Act 1998 where the first academic year of the course begins on or after 1 September 2012. Designation under those regulations means that students can apply for student support in respect of undertaking a course. There is an exception for "end-on courses" where the original course began before 1 September 2012.

The qualifying persons prescribed by regulation 4 are those persons who, on the first day of the relevant academic year, fall within the Schedule, save for those persons who are not eligible for support under the Education (Student Support) (Wales) Regulations 2015 by reason of certain paragraphs of regulation 4 of those Regulations, or who already have an honours degree from a UK institution.

There is an exception for those students who transfer to a qualifying course from a course which began before 1 September 2012. There are exceptions in respect of a previous honours degrees for persons undertaking courses of initial teacher training, who have obtained the honours degree only as part of a single course they are currently undertaking or where the course leads to a qualification as a social worker, medical doctor, dentist, veterinary surgeon or architect.

Regulations 5 and 6 make supplementary provision.

Regulation 5 makes clear that the words ‘provided in Wales' in respect of sections 5 and 17 of the 2015 Act include the preparation in Wales of the materials necessary to deliver a particular course or to provide education, even if students are not required to attend the institution delivering the course or providing the education, for example a distance learning course. Regulation 6 provides that the term "2004 Act plan" in paragraph 29(3) of the Schedule to the 2015 Act includes a proposed plan which HEFCW receives under section 34 of the Higher Education Act 2004 before the 1 August 2015 (the date on which that paragraph comes into force) but which is approved by HEFCW after that date following a review under the regulations 11 to 18 of the Student Fees (Approved Plans) (Wales) Regulations 2011.

The Welsh Ministers' Code of Practice on the carrying out of Regulatory Impact Assessments was considered in relation to these Regulations. As a result, a regulatory impact assessment has been prepared as to the likely costs and benefits of complying with these Regulations. A copy can be obtained from the Higher Education Division, Cathays Park, Cardiff, CF10 3NQ.