Surinder Singh’s Scottish Studies

This is off-topic, and not quite topical, but I think it’s interesting and I haven’t seen it discussed elsewhere.

Universities in Scotland do not charge tuition fees to full-time undergraduate students, provided they are resident in Scotland before they start their course and are not resident here solely in order to attend university, or in the case of under 25s, provided their parents are resident here and not solely in order that their child attend university.

Citizens of other EU member states must be treated equally in accordance with the right to free movement of labour within the EU. This was established by the European Court of Justice in 1986, in Gravier v Liege, where it was held that access to higher education formed part of the right to free movement of labour and therefore there cannot be discrimination against nationals of other member states who are moving across borders in order to access higher education. It has been clarified that this applies only to tuition itself, and discrimination against non-residents is permitted in provision of help for student cost of living. Therefore citizens of other EU member states are entitled to move to Scotland in order to attend university and be treated the same as long term Scottish residents for the purposes of tuition fees, while people from other parts of the UK must notionally pay a fee and later pay a graduate contribution to this.

Is there any way for people within a member state to gain the same right? In other words, is there any way for students from England to attend a Scottish university on the same terms as a Scottish or non-British EU student? Well, it emerged last year that some students from Northern Ireland, most of whose inhabitants are at least entitled to hold both British and Irish nationality, were applying to Scottish universities as Irish students, and were therefore entitled to be treated the same as Scottish students on the basis that they were citizens of another EU member state. Indeed it is possible to acquire Irish nationality by virtue of the birth of one’s grandparents in Ireland, and there are many such grandchildren living in England as well, so this route could be open to many people. However, the Scottish Government announced that they would legislate to prevent this.

The legal basis for preventing this is, to my understanding, the McCarthy decision of the ECJ. This involved a British woman who married a Jamaican man and was unsuccessful in getting the appropriate visa for him to live with her in the UK. She then applied for Irish nationality on the basis that her parent or grandparent was born in Ireland. It is a well established principle of European law, that as part of the right to free movement of labour, an EU citizen has the right to live and work in another member state, and to be accompanied in doing so by their spouse and children, even if their spouse and children are not themselves EU citizens. Ms McCarthy therefore sought to have her husband’s right to live with her in the UK recognised by the Home Office. The Home Office didn’t accept this though. They argued that as a British citizen who’d lived her whole life in the UK and was currently living in the UK, she couldn’t take advantage of the European treaty rights to free movement of labour simply because she also held another nationality that she hadn’t really used. The case went all the way to the ECJ, who decided in favour of the Home Office. In addition to the changes proposed by the Scottish Government, the Home Office also changed the immigration rules to implement this decision.

There is, however, another way for citizens of a member state to acquire the right to be treated as if they are citizens of another member state when in their own country.

The Surinder Singh case was decided by the ECJ in 1992. Surinder Singh was an Indian national who married a British woman, in Bradford. They both subsequently lived and worked in Germany. After their divorce, the authorities sought his deportation. He challenged this, and the case ended up in the ECJ. The finding of the Court was that Mr Singh’s wife, having engaged in economic activity in a member state of which she was not a citizen, was entitled to be treated as if she were an EU migrant arriving in the UK when she returned home, and her husband therefore had the right to live and work in the UK as if he were married to a non-British EU citizen. The Court’s reasoning was that a “national of a Member State might be deterred from leaving his country of origin in order to pursue an activity as an employed or self-employed person as envisaged by the Treaty in the territory of another Member State if, on returning to the Member State of which he is a national in order to pursue an activity there as an employed or self-employed person, the conditions of his entry and residence were not at least equivalent to those which he would enjoy under the Treaty or secondary law in the territory of another Member State.”

So is this of general application, or does it only apply to spouses and immigration? A case of interest is Wallonia v Flanders. This case was brought by the Walloon Government against the Flemish Government, in Belgium. (By way of an extremely simplified outline, Belgium is a union of 2 nations, Wallonia, which speaks French, and Flanders, which speaks Dutch, each with their own government and parliament, in addition to the federal Belgian Parliament and Government.) The Flemish Government was providing a particular social security benefit to people who were resident in Flanders, but not to people working in Flanders but resident elsewhere. Among the questions raised was whether EU rights to free movement should be applied to movement between parts of a member state. This could also have had interesting implications for the UK had the ECJ agreed. The Court did not, reaffirming that Belgian residents of other parts of Belgium had no right to equal treatment in access to this benefit, since this was an internal matter for the member state. However, the Court did rule, based on the treaty provisions guaranteeing free movement of labour, that access to the benefit could not be restricted in a way that discriminated against citizens of other member states, merely because this was a matter devolved to the Flemish Government which is tasked with providing services to the people of Flanders. Quoting the opinion of the ECJ’s Advocate General, the Court said that “the Court has consistently held that a Member State cannot plead provisions, practices or situations prevailing in its domestic legal order, including those resulting from the constitutional organisation of that State, to justify the failure to observe obligations arising under Community law”. Furthermore, and this is the key point for the purposes of this article, access could not be restricted so as to discriminate against Belgians, regardless of residence, who had exercised their free movement rights within the EU, i.e. their Surinder Singh rights.

Read together with the Gravier decision, this strongly suggests that a student from England or Wales who wished to take advantage of the Scottish fee system for universities could simply take a year out, work in a bar in Ibiza or Dublin for a while, then apply to a Scottish University declaring that they were invoking their Surinder Singh rights. I wondered if this was a route that hadn’t been anticipated by the Government, but when I looked at the (extremely hard to follow) Education (Fees) (Scotland) Regulations 2011, it’s right there in paragraph 10 of Schedule 1. Nevertheless, and despite the publicity given to the other route, I haven’t heard of this being used so far.

References

eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:61983CJ0293:EN:HTML

eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:61990CJ0370:EN:HTML

eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:62006J0212:EN:HTML

eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:62009J0434:EN:HTML

www.bbc.co.uk/news/uk-23029195

www.bbc.co.uk/news/uk-scotland-scotland-politics-19600241

www.ind.homeoffice.gov.uk/sitecontent/documents/news/changes-imm-eea-regs.pdf

www.legislation.gov.uk/ssi/2011/389/regulation/3/made

www.ukcisa.org.uk/International-Students/Fees--finance/Home-or-Overseas-fees/Scotland-Higher-Education/#