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A partnership project delivered by Welsh Refugee Council, COMPAS and the Migration Observatory. Funded by Welsh Government.

Migrants’ Entitlements to Education Services in Wales

Author(s): 
Frances Trevena & Stewart MacLachlan – CORAM Children’s Legal Centre
Current Revision (Date): 
January 2017

Introduction

This briefing provides information on the education services available to migrants in Wales. The briefing considers the eligibility of migrants with various immigration statuses, including asylum seekers and refugees, people with leave to remain, mobile EU citizens and those with irregular status.  It is intended to provide an overview of education services for professionals working with and supporting migrant children, young people and migrant families.  

The briefing covers the provision of pre-school education, primary schooling (foundation phase), secondary education, as well as further education (FE), higher education, the provision of Welsh language education, and English for Speakers of Other Languages (ESOL).

Status of this briefing
This briefing does not constitute legal advice and does not have statutory status. For advice on individual cases, legal advice should be sought from your organisation’s legal services or an independent legal adviser.[1] Rather, this briefing provides general information on the entitlements of migrants to education services in Wales.

This briefing forms part of a series of briefings, which have been produced for the Migration Services in Wales project. This briefing should be read in conjunction with the other briefings, which are listed with web links below:

Please note: Following the EU referendum result, the United Kingdom has announced its intended withdrawal from the European Union. However, the situation under EU law remains the same at the time of writing and the briefing reflects the current situation. The law, and available services, may change following withdrawal from the EU.

How is this briefing structured?

This briefing examines the rights of migrants to education services in Wales and any restrictions that apply. The briefing begins by setting out the legislative and policy framework around migrants’ access to education services. The briefing continues by focusing on the different levels of formal education, from pre-school and primary school, through secondary education and finally examining further and higher education services, including the funding available for students. It concludes by considering English for Speakers of Other Languages (ESOL) courses.

Migrants’ access to education services: the legal and policy framework

Compulsory school education and the right to attend school, are found in international treaties, as well as both UK and devolved legislation. Universal free access to primary education, and available and accessible secondary education, is a minimum requirement under the UN Convention on the Rights of the Child[2], which the Welsh Government has incorporated into devolved legislation, including a duty on the Welsh Government to have regard to the UNCRC when exercising any of its functions.[3] 

Protocol 1, Article 2 of the European Convention on Human Rights further highlights that no person should be denied the right to education. The case of Cyprus v Turkey European Court of Human Rights (App 25781/94) clarifies the right that secondary education must be accessible and appropriate irrespective of immigration status.[4]

The Education Act 1996 applies in England and Wales and sets out both the requirement to provide education and, under section 7, requires parents to ensure regular attendance of children who are of compulsory school age. Education is compulsory in Wales for all children from the ages of 5 until 16.

Some people with leave to enter or remain in the UK are excluded from accessing ‘public funds’ because their leave is subject to the no recourse to public funds (NRPF) rules. Public funds are welfare benefits and housing-related services that are listed under Paragraph 6 of the Immigration Rules.[5] It is important to note that education services are not ‘public funds’ and therefore the no recourse to public funds (NRPF) policy does not affect access to any education services. However, other restrictions may apply to people accessing further or higher education, depending on their immigration status, because this may affect whether the education or training provider can receive government funding in respect of that person (more on this in the Further and Higher Education section below).

Since 1999, meeting the duty to provide education has been devolved in Wales.[6] As a result, a distinct legal framework has been created by the Welsh Government in the area of education, including aspects such as the curriculum and teacher training. There is a separate code of conduct for admissions, Special Educational Needs (SEN) and exclusions. However, where decisions are subject to legal challenge, they rely on precedents set by the courts for both England and Wales.

Education funding in Wales is provided by the Welsh Government and is allocated to local authorities. Local authorities then provide core funding for their regional education consortia, which also receive and manage a number of direct Welsh Government grants. The four education consortia are Central South Consortium Joint Education Service, South East Wales Education Achievement Service, Education through Regional Working in the South West and Mid Wales, and GWE - the Regional School Effectiveness Service for North Wales. Funding is then allocated by local authorities to schools in their area to provide education, SEN and other specialist services. The formula for the allocation of funds takes into account additional factors, including the numbers of children who do not speak English or Welsh as their first language.[7]

In the Refugee and Asylum Seeker Delivery Plan 2016,[8] the Welsh Government has set out its strategy in relation to the education of refugees and asylum seekers. There are four key education outcomes: that refugees and asylum seekers are able to achieve their full potential as members of Welsh society, that they can easily access useful information about educational opportunities available, and can easily access information about accessible facilities and services and that they will improve their English language and literacy. The Plan also highlights the need to be aware of safeguarding concerns, the availability of counselling and measures to prevent bullying of asylum seeking and refugee children. 
 

Additional support for pupils in Wales

The Education Improvement Grant (EIG) is a targeted education grant provided to local authorities and consortia to improve teaching and learning, and outcomes for learners.  It supports the four strategic objectives identified in the Welsh Government’s education improvement plan, Qualified for Life:

  • “An excellent professional workforce with strong pedagogy based on an understanding of what works
  • A curriculum which is engaging and attractive to young people and which develops within them the ability to independently apply knowledge and skills
  • Qualifications which young people achieve that are nationally and internationally respected and act as a credible passport to their future learning and employment
  • Leaders of education at every level working together in a self-improving system, providing mutual support and challenge to raise standards in all schools”[9]

This grant brought together a number of smaller education grants, including the Minority Ethnic Achievement Grant (MEAG) which provided dedicated funding for local authority ethnic minority achievement services.  The EIG continues to support learners with English or Welsh as an additional language through the Ethnic Minority Achievement Services within every authority in Wales. The EIG is not allocated to specific learners, and therefore can be used to support all children within schools to work towards the objectives outlined above.

 

The Pupil Deprivation Grant (PDG) is a grant for schools intended to improve the outcomes for learners eligible for free school meals (eFSM) and Looked After Children (LAC). It is intended to overcome the additional barriers that prevent learners from disadvantaged backgrounds achieving their full potential. The grant does not have to be tracked to individual learners but the school should publish their allocation and outline their plans to improve the outcomes for deprived children.[10] Schools inspectors will also report on the use and effectiveness of the PDG.[11]

Eligibility for free school meals is linked to passporting benefits – benefits which are linked to other benefits a person receives. The relevant benefits/support payments are:

  • Universal Credit[12]
  • Income Support
  • Income Based Jobseekers Allowance
  • Income-related Employment and Support Allowance Guarantee element of State Pension
  • Credit Child Tax Credit, provided they are not entitled to Working Tax Credit and their annual income does not exceed £16,190
  • Working Tax Credit 'run-on' - the payment someone may receive for a further four weeks after they stop qualifying for Working Tax Credit
  • Support under Part VI of the Immigration and Asylum Act 1999

Asylum seeking families receiving Home Office asylum support (under Part VI of the Immigration and Asylum Act 1999), also known as ‘section 95 support’ are eligible for free school meals. Currently families with children will continue to receive support until the youngest child included in the application reaches 18, even where the family becomes appeal rights exhausted (‘ARE’). However, those who are ARE and are no longer receiving section 95 support (and may be receiving section 4 Immigration and Asylum Act 1999 support) are not eligible. The Immigration Act 2016 has changed the eligibility for refused asylum seeking families - ARE families will no longer continue to be eligible for s95 support.[13] This section of the Act has not yet been implemented at the time of writing. Other support may be available for families in limited circumstances but this has yet to be set out clearly in regulations.

Unaccompanied asylum seeking children who are looked after and accommodated by a local authority may be eligible for FSM. If the child is in foster care, they will be eligible only if the foster carer is receiving passporting benefits. However, children who are living with parents who have no recourse to public funds (NRPF) as a condition of their leave to enter or remain in the UK, along with mobile EU citizens, are not eligible for FSM and therefore no PDG payment will be made to the school for these pupils. Local authorities have different policies on free school meals and discretion to provide free school meals outside the eligibility criteria. The policy is in each local authority area is available through the government website.[14]

Pre-school

Pre-school education is provided to children before commencing compulsory education at primary school (compulsory school age begins at the start of term following a child’s 5th birthday). Pre-school education can be provided in various places, including nurseries, playgroups and private nurseries. No immigration restrictions apply to pre-school education.

The Welsh Government introduced the Foundation Phase in September 2010,[15] which is the statutory curriculum for children aged 3-7. The Foundation Phase ensures that once a child reaches their third birthday, they are eligible for free part-time nursery care in either a maintained nursery (a state-funded nursery), in a private nursery or via a registered child minder.

Flying Start

Flying Start is a targeted Early Years programme for families with children under four years of age who are living in some of the most disadvantaged areas of Wales.  Flying Start is targeted using income benefit data provided from the Department of Work and Pensions and HM Revenue and Customs. The programme entitlements offer a range of support which provides quality early years provision for children and a range of support to help parents build skills and resilience. The four key elements of the programme are:

•          quality part-time childcare;

•          Health support services;

•          Parenting support; and

•          Speech, Language and Communication support[16]
 

Flying Start is open to all eligible children. No immigration exclusions apply to the Flying Start programme.

Family Information Services (FIS) are available across Wales, providing information on nursery schools and pre-school.
 

Admission to primary and secondary schools
Admissions to primary and secondary schools is set out in the Welsh Government’s Schools Admissions Code.[17] Like pre-school education, there are no restrictions on primary and secondary education on the basis of immigration status. Admission applications are made to the local authority on a common timetable for maintained schools (state-funded schools). When making an application, parents are required to provide proof of their address, such as a utility bill, and proof of a child’s date of birth (usually, but not necessarily, in the form of a birth certificate).

Where a school is over-subscribed, clear over-subscription criteria are provided that aim to be fair, objective, reasonable and complicit with current legislation. A school must not limit access based on the parents’ or children’s immigration status or their membership of a particular religious or social group.[18] However, designated faith schools may discriminate when selecting pupils on the basis of their religion. Parents may submit an appeal to an independent statutory appeal panel where they wish to challenge a school’s decision about the allocation of school placements.

Under Regulation 6 of the Education (Admission of Looked After Children) (Wales) Regulations 2009, looked after children, including separated migrant children, have priority when being allocated school places (for these purposes, looked after children are those who are looked after at the time of application for admission and will be looked after at the time they are admitted to the school).[19] Even where there are additional entry criteria, a looked after child or previously looked after child must have priority over other children where they meet the criteria.[20] A school has a duty to admit a looked after child even after the start of the school year or term. For looked after children, the local authority is their ‘corporate parent’ – the corporate parent has responsibility for and carries out many of the roles a parent would. As such, the local authorities must ensure that the child receives the best possible support and care, and must consult with the school before making an application for admission, although this can be done informally.
 

Primary education

Compulsory primary education begins in the term after a child’s fifth birthday and continues until around age 11. Access to primary education is independent of immigration status, whether the child, or their parent, is undocumented, has leave to remain, are seeking asylum, have refugee status or are mobile EU citizens. As noted in the legal framework section, primary education is available irrespective of immigration status.

The Foundation Phase curriculum sets out what children should learn between the ages of three and seven, and the standards they should attain.[21] The Foundational Phase curriculum applies to all learners, and it explicitly “supports the cultural identity of all children, to celebrate different cultures and help children recognise and gain a positive awareness of their own and other cultures.”[22] There is a corresponding policy on personal and social development and well-being and cultural diversity for the Foundational Phase and sets out the range of experiences and skills to be developed by all children under the curriculum.[23]

In addition, the National Literacy and Numeracy Framework is designed to help teachers embed literacy and numeracy into all subjects for children between 5 and 14 across the curriculum.[24]  There is also non-statutory Welsh Government guidance on the acquisition of Information and communications technology (‘ICT’) skills, which aims to ensure children are given opportunities to develop skills in communications and ICT.[25]
 

Secondary school

Entry to secondary school is at age 11 and continues until the end of compulsory education at age 16. Secondary schools may continue to provide education up until the age of 18. No immigration exclusions apply to secondary education and access cannot be denied on the basis of immigration status.  

Additional considerations relating to education services

School exclusions

The school exclusion regime derives from section 52 Education Act 2002.[26] The 2002 Act specifies that regulations will make provision for the procedure and process in relation to school exclusion. The Welsh Government enacted regulations on this basis in relation to exclusions.[27] The Welsh Government has further published detailed statutory guidance on exclusions of children from education, including schools and pupil referral units. Those making decisions on exclusions and exclusion procedures must have regard to this statutory guidance.[28]

Exclusion cannot be discriminatory. The Equality Act 2010 prevents discrimination on the basis of protected characteristics, including race, and religion and belief. Furthermore, the Public Sector Equality Duty within the Equality Act 2010 requires that schools must advance equality of opportunity. The Welsh Government’s statutory guidance on Exclusions from Schools and Pupil Referral Units also prevents the exclusion of a pupil to punish their parents’ behaviour.[29] A decision to exclude may also be challenged.

Fixed term exclusions must not be for longer than 45 days in the school year, and this limit applies to the learner rather than the institution, so where a child moves school, their exclusion record should follow them.  

Free school meals
As noted above in the additional support section, children whose parents are in receipt of passported benefits/support payments are entitled to receive free school meals (FSM).[30] However, because eligibility for FSM depends on receipt of certain benefits/support payments, children whose parents have no recourse to public funds (NRPF) as a condition of their leave to enter or remain in the UK, or those whose families are in receipt of section 4 support for appeal rights exhausted asylum seekers will not be eligible for free school meals.

School uniforms
Local authorities may provide a school uniform grant at the start of secondary school to children who are in receipt of free school meals. Children whose parents have no recourse to public funds are not eligible for this grant, as it is also linked to eligibility for passporting welfare benefits.

Counselling for children and young people
Local authorities are required to make reasonable provision of counselling services for children and young people aged between 11 and 18 in their area and pupils in year 6 of primary school. This means that the immigration status of those children and young people is irrelevant, if they are in year 6 (last year in primary school) or are 11 to 18 they are entitled to access counselling if they need it.

The 2016 Refugee and Asylum Seeker Delivery Plan includes an outcome to monitor the uptake of culturally sensitive counselling[31] for school age refugee and asylum-seeking young people.

Special educational needs

Children have special educational needs (SEN)[32] if they have a learning difficulty which calls for special education provision to be made for them.[33] The legislative system for SEN is set out in Part IV Education Act 1996 and is supplemented by an SEN Code of Practice for Wales.[34] School Action and School Action Plus are both categories of support, provided by the school, focussing on learners with low level needs.  For those learners with more complex needs, they may require a statement of SEN, a legally binding document setting out the child’s need and what provision is needed to address these needs and a placement in a special school.[35] The majority of children with SEN do not have a statement.[36] A parent can request a statutory assessment of special education needs and the local authority will decide whether to carry out an assessment. If the local authority decides a SEN statement is needed, the local authority has a duty to meet the needs as set out in the statement. The statement is subject to an annual review. Appeals against decisions or provision made by a local authority for a child with a statement of SEN, can be made the SEN Tribunal for Wales.[37]

Not having English as a first language does not constitute a SEN.[38] When making any assessment of the individual needs of a pupil, a school should consider a variety of factors, including prior learning and cultural and linguistic backgrounds. It is recognised in the Inclusion and Pupil Support Guidance that refugee and asylum seeking children may have further additional needs, not necessarily an SEN, as a result of their previous experiences and they should be supported appropriately through their local education services.[39]

SEN is funded by the Welsh Government, which allocates funds to local authorities for SEN provision in their area on an annual basis. This forms part of their wider allocation for education and is not ring-fenced. This is then provided to schools as part of their delegated budgets. The Early Years Advisory Panel (established by the Welsh Government and made up of organisations and individuals with expertise in early years education and childcare) can allocate additional funding for nursery age children who have significant and/or complex needs. The local authority must publish these funding arrangements.[40]
 

The teaching of Welsh as a subject and Welsh-medium education

Welsh is a compulsory subject for all pupils aged 5 to 16 in maintained schools in Wales. It is taught as either a first language or as a second language as appropriate. All maintained schools are also required to teach the Curriculum Cymreig which is designed to develop and apply knowledge of the cultural, economic, environmental, historical and linguistic character of Wales. 

A particular feature of the education system in Wales is that between 25% and 30% of maintained primary and secondary schools use Welsh as a medium of instruction. Schools designated as Welsh-medium teach almost all subjects through the medium of Welsh; dual stream (primary) and bilingual (secondary) schools use both languages in varying degrees; some schools offer little or no Welsh-medium teaching but teach Welsh as a second language. Pupils (or parents) do not need to be Welsh-speaking in order to access Welsh-medium schools. Admission arrangements for Welsh-medium schools are no different from all other maintained schools. Welsh-medium education is open to all pupils irrespective of whether they or their parents speak Welsh. Following the conclusion of the Welsh-medium education strategy in 2015, the Welsh government have published a next steps document which details the need for improved workforce planning and support for practitioners; and the need to ensure that young people are confident to use Welsh language skills in all walks of life.[41]


Further Education


Further education includes any study beyond secondary education that is not part of higher education. Further education encompasses a wide range of courses delivered by further education colleges and training providers.

Further Education Colleges

Further education colleges are funded directly by the Welsh Government and offer a range of academic and vocational provision to learners of all ages.

Learners aged 19 and under do not pay for their tuition at college.  However, some colleges may ask learners to pay a small registration or administration fee when they first enrol. 

Depending on where they live and how far they have to travel, learners may get help to travel to college.  Most colleges offer some form of subsidised transport for learners aged 19 and under and many have dedicated college buses.   

Adult learners will usually have to pay some form of tuition fee, unless they are following a course in basic skills (literacy and numeracy) or are accessing ESOL provision.  Colleges are not allowed to charge learners for this provision.

The amount of fees payable varies from college to college and may also depend on things such as the subject and length of the course.  Many colleges also offer free or discounted tuition in certain circumstances, such as where the person is on means-tested benefits, have a low income or has a disability.[42]

Support to attend college

Education Maintenance Allowance (EMA) is available for 16-18 year olds who want to continue their education after school-leaving age (whether in school or at a further education college). In order to be eligible they must meet certain criteria in relation to age, type of course, household income and nationality/residency. The EMA is a weekly allowance of £30 and is paid every two weeks directly into the learner’s bank account.[43] 

Learners aged 19 years or over may be eligible for a Welsh Government Learning Grant Further Education (WGLG (FE)) of up to £1,500. This grant is means tested and depends on the learner’s age, course, household income and nationality/residency.[44] Young people and adults may be eligible for discretionary hardship funds if attending a further education college in Wales. The funding is known as the Financial Contingency Fund (Further Education) (Wales) Scheme. Colleges may also offer their own discretionary bursaries and scholarships.

The Welsh Government makes available annual Financial Contingency Funds (FCF) for colleges to administer to their learners on a discretionary basis.  The FCF can provide financial help to learners who are experiencing difficulties as a result of low income and can be used to help with course-related costs such as childcare, travel and equipment costs.

Further education – eligibility for student finance


The Welsh Government has published a funding guide that details eligibility for learners with various immigration statuses in relation to further education – this is set out in section 5 of the guide.[45] Details of eligibility for further education student finance can also be found on the Further Education Welsh section of the UKCISA website.[46]

Eligibility for student finance is largely based on age, residency and immigration status.

Examples of individuals eligible for further education student finance include asylum seekers receiving asylum support or support under the Children Act 1989; unaccompanied children seeking asylum who are in the care of the local authority; and those with humanitarian protection or discretionary leave to remain.

If an individual does not meet any of the eligibility requirements, they will not be eligible for further education student finance. This will effect those who have limited leave to remain but do not meet the Welsh government eligibility criteria on other grounds and those who are not seeking asylum and have no form of immigration status.

In addition, the rules regarding eligibility for EMA and WGLG (FE) for various groups of migrants by immigration status are set out in the schedule (parts 1 and 2) to the latest relevant schemes for EMA[47] and WGLG (FE)[48].

It is important to note that the residency criteria for the purposes of further education student support differ to higher education student support. For example, since academic year 2010/11, the requirement to be resident in the UK for three years was removed for EMA and WGLG (FE) where eligible persons (or a family member) living in the UK are granted Humanitarian Protection or Discretionary Leave, if they have been ordinarily resident in the UK since their status was awarded. They must however be ordinarily resident in Wales on the first day of the first academic year of their course.

 

Higher Education


Higher education primarily describes post-18 learning that takes place at universities, as well as other colleges and institutions that award academic degrees, professional qualifications and Continuing Professional Development (CPD) modules. Funding for higher education includes tuition fee support as well as assistance with living costs.

In relation to tuition fees, institutions will charge different levels of fees depending on a number of criteria and the type of institution. Home fees are lower than overseas fees. If a person meets the criteria for student finance (set out below for different immigration statuses) they will qualify for home fees for the purposes of higher education. Overseas fees are normally charged to international students, those that have a form of status but do not meet the student finance criteria and those without status or who are seeking asylum. UKCISA publishes useful information regarding home and overseas fees.[49]

The main criterion, other than immigration status, is ordinary residence for a set period of time. Ordinary residence can be shown if the person is habitually, normally and lawfully resident in that area.[50]

Higher education costs

Most higher education institutions charge tuition fees. An individual can obtain a tuition fee loan for the first £3,900, help with living costs and obtain a fee grant if the fees are above this level. Welsh publicly funded higher education institutions can charge fees of up to £9,000[51]. The £9,000 restriction does not apply to private higher education universities or colleges and they can charge at any level. If the course at the institution is ‘designated’ by the Welsh Government[52], an individual may be eligible for a tuition fee loan of up to £6,000 at private universities or colleges.[53]

Maintenance loans are available (different levels are available depending on whether the person applies for a loan based on household income or not and also where they are living when studying).[54]

The Welsh Government Learning Grant (WGLG) for higher education is available for those whose household income is £50,020 or below. The lower the household income of the person, the higher the grant that will be available. Please see the table on income and grants on the Student Finance Wales website for further details.[55]

A Special Support Grant is available (instead of the WGLG grant) to some students depending on their circumstances. This is for a maximum of £5,161 and is intended to help with the costs of books, course equipment and travel.[56] There are also various other grants and allowances available in certain circumstances, including childcare grants, travel grants for clinical training and studying abroad as part of the course and Disabled Students’ Allowances.[57]

A person may also be eligible for a Professional and Career Development loan from registered banks of between £300 and £10,000 if they are 18 or over and have lived in the UK for 3 years before the course starts and plan to work in the UK or elsewhere in the European Economic Area (EEA). The course must only last up to 2 years (or 3 years including 1 year of work experience).

Higher education - Eligibility for student finance


As noted above, a person’s immigration status can affect their eligibility for funding to pursue a higher education course. The Welsh Government has enacted various regulations in respect of the student support arrangements for higher education; the most recent being the Education (Student Support) (Wales) Regulations 2015 (as amended).[58] These regulations set out who is eligible for and who is excluded from student financial support (regulation 4 & schedule 1).[59] This briefing will now detail the rules regarding the eligibility for higher education student financial support for various groups of migrants by immigration status. Specific rules relating to the children of Swiss nationals and Turkish workers can be found within schedule 1 of the regulations.[60]

It is important to note that under section 3C of the Immigration Act 1971, an individual who makes an in-time, valid application to extend or vary a time-limited form of immigration status, will be able to exercise the same rights as they had before their status expired. For example, if someone had refugee status, that person would retain those rights once their status expired if they make a valid, in-time application for indefinite leave to remain and are still waiting on a Home Office decision or appeal decision.[61]

In many categories, student finance can depend on whether an individual is ordinarily resident on the first day of the first year of the course they intend to take. Ordinary residence is discussed further below.

The academic year does not mean the first day of the course the individual is taking (unless it falls on one of four dates mentioned above). The academic year, for student finance purposes, can be one of four dates:

  • 1st January (for courses starting 1st January to 31st March);
  • 1st April (for courses starting 1st April to 30th June);
  • 1st July (for courses starting 1st July to 31st July); or
  • 1st September, (for courses starting 1st August to 31st December)[62]

Indefinite leave to remain or settled

Indefinite leave to remain means that a person is settled in the UK and has no time limits or conditions attached to their leave. For the purposes of student support, this does not include EU citizens with permanent residence that derives from EU law.

People who have settled status in the UK (indefinite leave to remain) will be eligible for home fees and student support if:

  • They are settled in the UK on the first day of the first academic year of the course;
  • They are ordinarily resident in the UK (for home fees) and/or Wales (for student support) on the first day of the first academic year of the course; and
  • They have been ordinarily resident in the UK and Islands for 3 years prior to the first day of the first academic year of the course.[63]

The main purpose of the person’s residence in the UK and Islands over any of the 3 year period must not have been to receive full-time education.

Refugee status

Refugee status may be granted to an individual where that individual would be at risk of persecution in their home country.[64] In the UK, those granted refugee status will be granted 5 years leave to remain, following which they can apply for indefinite leave to remain.

If a child or young person has refugee status, they will be eligible for home fees and student support if they are:

  • Ordinarily resident in the UK (for home fees) and/or Wales (for student support) on the first day of the first academic year of your course; and
  • Have been granted refugee status by the UK Government and have been ordinarily resident in the UK and Islands since being granted this status.

This will also include children of refugees as long as they were under the age of 18 at the time the asylum application was made.

Humanitarian Protection

The Home Office currently grants humanitarian protection to those who do not qualify for refugee status but are at real risk of suffering serious harm in their home country. Humanitarian protection is currently a 5-year grant of leave to remain, following which a person can apply for settlement.[65]

A person who has been granted humanitarian protection will be eligible for home fees if he or she has leave and is ordinarily resident in the UK on the first day of the first academic year.

They are also eligible for student support if they are:

  • Ordinarily resident in Wales on the first day of the first academic year of the course; and
  • Ordinarily resident in the UK and Islands for the three years preceding the first day of the first academic year of the course.

Limited leave to remain (including discretionary leave and UASC leave)

Limited leave to remain is a form of immigration status granted to a person in a variety of circumstances, including people living in the UK on a visa; those whose leave is granted on the basis of their human rights to family/private life; those granted discretionary leave and those children granted leave to remain as an unaccompanied minor where there are no adequate or safe reception arrangements in their home country.[66] There are different routes to settlement depending on the type of leave granted. Most grants of limited leave to remain or discretionary leave are now for 2.5 years on a 10-year route to settlement. It should be noted that UASC leave will not lead to settlement in most cases as it is not granted after a child turns 17.5 years old and will not normally meet the 10 year route to settlement. However, longer, or shorter, periods can be granted, and, if someone was granted leave to remain under an old route, they may have discretionary leave for 3 years on a 6-year route to settlement.

Under the Welsh student support regulations, an individual, or their spouse/partner/child, are eligible for student finance when that individual has either:

  • Made an application for asylum, been refused asylum but granted discretionary leave; or
  • Not applied for asylum but has been granted leave to enter or remain on the grounds of discretionary leave.

AND

  • ordinarily resident in the UK (for home fees) and/or Wales (for student support) on the first day of the first academic year of the course; and
  • ordinarily resident in the UK and Islands since they were granted leave to enter or remain.

Asylum Seekers

Asylum seekers can apply to study at a higher education institution. Beyond the age of 18 asylum seekers are entitled to study any course at any level, as long as they are able to satisfy the entry requirements and can pay the course fees. However, they will not be entitled to pay home fees or to student finance, even if they have been resident in the UK for three years. It is worth noting, however, that universities can, and sometimes do, use their discretion to allow asylum seekers to study as home students. Some provide information about this on their websites and a few offer bursaries for asylum seekers. Student Action for Refugees (STAR) provides a useful list of universities providing fees and financial support to asylum seekers.[67]

The most recent Welsh Government Delivery plan encourages higher education institutions to provide information, advice and guidance to asylum seekers on applying for places and financial support.[68]

EU citizens

Please note: Following the EU referendum result, the United Kingdom has announced its intended withdrawal from the European Union. However, the situation under EU law remains the same at the time of writing and the briefing reflects the current situation. The law, and available services, may change after the UK’s withdrawal from the EU.

For further information on free movement rights under EU law, please see Migrants’ Entitlements to Welfare Benefits in Wales. For further information for eligibility of EEA and EU nationals, please see categories 3-6 of the UKCISA website - Higher Education Wales section.[69]

For those who have acquired permanent residence, they need the following to be eligible:

  • To be ordinarily resident in the UK (for home fees) and/or Wales (for student support) on the first day of the first academic year of the course; and
  • To have been ordinarily resident in the UK and Islands for three years before the first day of the first academic year of the course.

In order to acquire permanent residence under EU law, an EU citizen must normally have exercised an EU treaty right for a continuous period of 5 years. While there is no obligation to do so, an EU citizen who has exercised an EU right of residence in the UK, or who has exercised such a right as the family member of such an EU citizen, for a continuous period of at least 5 years can apply to the Home Office for a residence card that confirms their right of permanent residence.

For those EU citizens exercising treaty rights (for example working, job-seeking, self-sufficient, self-employed or studying) in the UK, they need the following to be eligible:

  • To be an EU citizen on the first day of the first academic year of the course;
  • To be ordinarily resident in the UK (for home fees) and/or Wales (for student support) on the first day of the first academic year of the course; and
  • To have been ordinarily resident in the UK and Islands for the three-year period before the first day of the first academic year of the course.

EU citizens, who have not been ordinarily resident in the UK and Islands for the three-year period before the first day of the first academic year of the course, and their relevant family members, can be eligible for home fees and student support for their tuition fees only. In order to be eligible, the EU citizen must have been ordinarily resident in an EEA country or Switzerland (and ‘the overseas territory’ for fee status) for the three-year period before the first day of the first academic year of the course. The student’s ordinary residence must not have been for the main purpose of receiving full-time education at any time during that three-year period.

Undocumented/appeal rights exhausted

A person who is undocumented/has irregular status (for example is a refused asylum seeker whose appeal rights are exhausted or someone who has overstayed their visa) is not excluded from accessing education services. However, those without immigration status will generally not be eligible for student finance. Although institutions do have a measure of discretion to allow students who are ineligible for student finance to attend courses, they may charge fees for this and will generally not offer assistance for living or travel costs. Therefore both financial and practical barriers and difficulties will arise and it is likely that many undocumented people will not be able to attend higher education institutions.

English for Speakers of Other Languages (ESOL)


English for Speakers of Other Languages (ESOL) is a course provided to people (over the age of 16) whose first language is not English or Welsh. English language and ESOL in mainstream education is funded through the Welsh Government’s funding streams, awarded on an annual basis to local authorities and Further Education Colleges.

The Welsh government has published a policy on ESOL provision setting out what provision will look like over the coming years, particularly in relation to further education and funding for such provision.[70] The Welsh Government Guide to post-16 planning and funding framework also sets out eligibility for such provision for those meeting the age, residency and immigration status requirements.[71] If an ESOL student is under the age of 19 and enrolling on a Welsh government funded course, tuition fees are not payable. See further education funding eligibility above for information on eligibility for funding for ESOL courses at further education institutions.

There are organisations that also offer ESOL courses outside of the further and higher education system, including the Welsh Refugee Council.[72] The Community Learning Partnership has a list of ESOL courses in the Cardiff & Vale area.[73]


Further resources

Key legislation

UK and Welsh Government guidance:

Information on resettlement:

Useful websites

Acknowledgments
We would like to thank Jonathan Price and colleagues at Coram Children’s Legal Centre for their helpful feedback on previous drafts of this briefing.

 


[1] Please see the following website to search for legal advice near to you: http://find-legal-advice.justice.gov.uk

[2] UNCRC, Article 28

[3] Section 1, Rights of Children and Young Persons (Wales) Measure 2011 http://www.legislation.gov.uk/mwa/2011/2/section/1

[4] Cyprus -v-Turkey App 25781/94, para. 275-280

[5] Paragraph 6 (Interpretation), Immigration Rules: Introduction, https://www.gov.uk/guidance/immigration-rules/immigration-rules-introduction

[6] Powers were devolved under the Government of Wales Act 1998 & further powers were devolved through the Government of Wales Act 2006

[7] Set out in Schedule 3 of the School Funding (Wales) Regulations 2010

[8] Welsh Government Refugee and Asylum Seeker Delivery Plan, March 2016

[9] Welsh Government, Qualified for Life, October 2014 http://gov.wales/docs/dcells/publications/141001-qualified-for-life-en.pdf

[10] Welsh Government, Pupil Deprivation Grant Essential Guidance http://gov.wales/docs/dcells/publications/150323-pdg-essential-guidance-en.pdf

[12] The UK Government’s Welfare Reform agenda means that the eligibility criteria for FSM will need to change as Universal Credit is rolled out and replaces existing benefits. Support under Part VI of the Immigration and Asylum Act 1999 and the guarantee element of State Pension Credit are not being replaced and will remain as eligibility criteria for FSM.

[17] Schools admission code, Welsh Government, July 2013

[18] Schools admission Code, 2.29

[19] Regulation 2, The Education (Admission of Looked After Children) (Wales) Regulations 2009 http://legislation.data.gov.uk/wsi/2009/821/made/data.htm

[20] Regulation 5, The Education (Admission of Looked After Children) (Wales) Regulations 2009, ibid

[21] Foundational Phase curriculum, revised August 2015, p3

[22] Curriculum for Wales: Foundational Phase Framework, August 2015, p9

[23] Welsh Government, Personal and Social Development, Well-Being and Cultural Diversity, 2008 http://gov.wales/docs/dcells/publications/141111-personal-and-social-development-well-being-and-cultural-diversity-en.pdf

[24] Learning Wales, Resources: National Literacy and Numeracy Framework, October 2014 http://learning.gov.wales/resources/browse-all/nlnf/?lang=en

[27] Education (Pupil Exclusions and Appeals)(Maintained Schools)(Wales) Regulations 2003;  the Education (Pupil Exclusions & Appeals) (Wales) (Miscellaneous Amendments) Regulations 20014; and the Education (Reintegration Interview) (Wales) Regulations 2010

[29] Statutory Guidance, Exclusions from Schools and Pupil Referral Units, Welsh Government, April 2015

[31] Refugee and Asylum Seeker Delivery Plan 2016, p17

[32] The Welsh Government are proposing to replace the existing legislative system for special educational needs and have drafted an Additional Learning Needs Bill and accompanying draft code of practice – see Welsh government website for further details http://gov.wales/topics/educationandskills/schoolshome/pupilsupport/additoinal-learning-needs-reform/?lang=en

[33] Section 312(1), Education Act 1996

[34] Welsh Government, Special Educational Needs Code of Practice for Wales, 2004 http://learning.gov.wales/docs/learningwales/publications/131016-sen-code-of-practice-for-wales-en.pdf

[35] A school specifically designed to cater for special educational needs

[36] National Assembly for Wales, Special Educational Needs (SEN)/ Additional Learning Needs (ALN) in Wales, June 2015 p10

[38] Section 312(3), Education Act 1996

[39] Inclusion and Pupil Support guidance, Welsh Government, March 2016, chapter 3.5

[40] National Assembly for Wales, Special Educational Needs (SEN)/ Additional Learning Needs (ALN) in Wales, June 2015

[41] Welsh Government, Welsh-medium Education Strategy: next steps http://gov.wales/docs/dcells/publications/160309-next-steps-en-v2.pdf

[43] For full details of the criteria, please see the Student Finance Wales website section on EMA, “Can I get it?” http://www.studentfinancewales.co.uk/fe/ema/can-i-get-it.aspx#.V5j2FvkrKUk

[50] This has been discussed in case law including Shah v London Borough of Barnet 1983 All ER 226  https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/258236/ordinaryresidence.pdf & R (Tigere) –v- BIS 2015 UKSC 57 https://www.supremecourt.uk/cases/uksc-2014-0255.html

[52] Designated courses are defined in Regulation 5 & Schedule  2 of the Education (Student Support) (Wales) Regulations 2015 http://www.legislation.gov.uk/wsi/2015/54/schedule/2/made See also the Student Finance Wales website http://www.studentfinancewales.co.uk/practitioners/policy-information/designated-courses.aspx

[59] Part 2: Categories, Schedule 1, The Education (Student Support) (Wales) Regulations 2015 http://www.legislation.gov.uk/wsi/2015/54/schedule/1/made

[62] Section 2(1), The Education (Student Support) (Wales) Regulations 2015

[63] Part 2: Categories, Schedule 1, The Education (Student Support) (Wales) Regulations 2015

[65] Historically, humanitarian protection is a rarer form of leave granted in the UK (around 1% of all grants of leave to remain). However, the resettlement schemes announced by the UK government will increase the amount of children and young people with this form of status. It has already been established that those resettled under the vulnerable families and unaccompanied children from outside the EU are or will be granted humanitarian protection. The type of status that those children within the EU who are resettled in the UK has not been announced, but it is likely to be humanitarian protection. For further information on the resettlement schemes, please see the following links: https://www.gov.uk/government/publications/syrian-vulnerable-person-resettlement-programme-fact-sheet; https://www.gov.uk/government/news/new-scheme-launched-to-resettle-children-at-risk; and  https://www.gov.uk/government/news/unaccompanied-asylum-seeking-children-to-be-resettled-from-europe

[68] Welsh Government, Refugee and Asylum Seeker Delivery Plan, March 2016: http://gov.wales/docs/dsjlg/publications/equality/160316-refugee-asylum-seeker-delivery-plan-en.pdf

[70] Welsh Government, English for Speakers of  Other Languages (ESOL) policy for Wales, 2014 http://dera.ioe.ac.uk/20373/1/140619-esol-policy-en.pdf

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