Further and Higher Education
How will the Learning and Skills Council’s (LSC) plans to remove automatic eligibility for publicly funded Further Education (FE) provision from asylum seekers from August 2007 affect asylum seeking children and young adults?
Background:
The Learning and Skills Council (LSC) - the funding body for the Further Education (FE) sector - issued its annual statement of priorities for learning and skills funding in England for the academic year 2007-08, with the following changes directly affecting asylum seekers:
- "The Government has been reviewing the public support available to asylum seekers awaiting the outcome of their applications, to ensure consistency of access to benefits. To bring FE funding into line with other Government departments ministers propose that asylum seekers aged 19+ should no longer be automatically eligible for publicly funded FE provision from 2007/08. Only those granted refugee status, humanitarian protection or discretionary leave will be eligible. Asylum seekers aged 16-18 will remain eligible for funding." [1]
- "From 2007/08 ESOL [2] learning will no longer attract automatic fee remission. Free tuition will still be available to priority groups, for example, for people who are unemployed or receiving income based benefits" [3]
However, in March 2007 the Minister of State for Lifelong Learning, Further and Higher Eduation announced important changes to the proposals announced in Raising our Game [4]. For 2007/08 the following groups are eligible for LSC funding:
- asylum seekers who after 6 months are still waiting for a decision on their claim or appeal.
- people who have been refused asylum, are unable to return because of circumstances beyond their control and are receiving Section 4 support.
Analysis:
Under the new arrangements the following groups of asylum seekers would still have access to free ESOL and other publicly funded FE provision:
Asylum seekers over statutory school age and under the age of 19 including:
Asylum seekers who turn 19 while on a course will remain eligible for funding until the end of the course.
- asylum seekers over 18 who after 6 months are still waiting for a decision on their claim or appeal.
- people over 18 who have been refused asylum, are unable to return because of circumstances beyond their control and are receiving Section 4 support.
The guidance for 19 year olds and over will come into effect in August 2007. It will prevent these adult asylum seekers from receiving LSC subsidised ESOL or other publicly funded education provision. They will no longer be able to enrol as students paying a concessionary fee and will instead have to pay the full fees.
The guidance on ESOL appears to be specifically directed at asylum seekers as fee remission will still be given to 'priority groups' such as the unemployed or those in receipt of benefits. Asylum seekers are not generally classed as unemployed as they do not have permission to work. [5]
Unaccompanied Asylum Seeking Children (UASC)
UASC stop being 'asylum seekers' at the point they are granted any form of 'leave to remain' - Refugee Leave, Humanitarian Protection (HP) or 'Discretionary Leave' (DL). According to the LSC guidance any form of leave will allow free access to ESOL and other publicly funded FE provision. Eligibility would apply during the currency of any form of leave.
Current leave
Many UASC will apply for an extension of their time-limited leave (of whatever sort) prior to its expiry. In the case of DL, the application is made shortly before it expires at age 18 (or at 17.5, if the leave was granted on or after 1st April 2007). Where an application to extend leave is made during the currency of the original leave (i.e. before it expires), the leave is deemed to be automatically extended and therefore remains 'current' until a further decision on the application has been made by the UK Border Agency and, where further leave is refused, until the time limit for appealing the refusal has passed or where an appeal is brought, until the appeal has been finally determined [6].
Effect on ESOL/ publicly funded FE provision
While the UASC has current leave they would still be eligible for free ESOL and other publicly funded FE provision under the LSC guidance. However, it is likely, as is presently the case with many benefits offices, that FE college admissions offices may require evidence of the young person's entitlement to free provision. The UK Boreder Agency have now stopped issuing 'acknowledgement letters' for those applying for an extension of Discretionary Leave.
It is unclear what evidential requirements colleges will impose under the new guidance when assessing eligibility for free provision and how staff at college level will be trained to assess such evidence. A refusal to provide someone who had current leave with access to free ESOL or other publicly funded provision through restrictive evidential requirements would be open to challenge by way of judicial review.
'Looked after' UASC refused asylum 'outright' (not granted Discretionary Leave)
It is also worth bearing in mind that many UASC who have turned 18 will have been 'looked after' by a local authority for sufficient time to entitle them to a leaving care service up until at least the age of 21. There is a clear duty in the Children Act 1989 to provide such 'former relevant children' with 'assistance of the kind referred to in section 24B(2) to the extent that his welfare and his educational or training needs require it ' [7] That assistance includes: 'making a grant to enable him to meet the expenses connected with his education or training'.
Although entitlement to this leaving care assistance is affected by immigration status [8] the following groups would be entitled to a leaving care service and therefore may also be entitled to have their college fees paid by the local authority under their Children Act duties as set out above.
- Those former UASC who have been 'looked after' for more than 13 weeks prior to their 18th birthday and were still asylum seekers on their 18th birthday (either because they have not yet had an initial decision or because they are appealing an initial refusal of their claim) and who remain asylum seekers at the time their entitlement to free ESOL (19th birthday) expires.
- Those former UASC who were still asylum seekers (as above) on their 18th birthday, had applied for asylum at a port of entry and were granted temporary admission (rather than having applied 'in country') but who were now 'appeal rights exhausted'. These failed asylum seekers are not unlawfully in the UK and must be provided with a leaving care service until they fail to co-operate with specific removal directions issued to them by the immigration service.
In either of the above two scenarios the local authority should pay the fees of the student concerned where ESOL or other publicly funded provision is no longer available.
Revised 20/05/08
Notes
[1] " Raising our Game - Our Annual Statement of Priorities" Learning and Skills Council , October 2006, page 25.
[2] ESOL - English for Speakers of Other Languages
[3] " Raising our Game - Our Annual Statement of Priorities" Learning and Skills Council , October 2006, page 25.
[4] The changes were announced in a speech delivered by Bill Rammell MP, Minister of State for Lifelong Learning, Further and Higher Education on 7 March 2007. For full text, click here. For furthe elboration, see Department for Schools, Children and Families news section here.
[5] A concession (introduced in February 2005, see para 360 Immigration Rules Part 11B) resulting from implementation of the EU 'Reception Directive' allows asylum seekers who have been waiting for over a year for an initial decision on their asylum application to apply for permission to work. This only applies to the principal applicant in an asylum claim. If permission to work were to be granted in such circumstances and the applicant remained unemployed, it is arguable that they would be entitled to fee remission in spite of their status as asylum seeker as they would then fall within a 'priority group' as identified in the LSC guidance. If the LSC remain silent on whether such a person could access free ESOL the position would need to be tested.
[6] Immigration Act 1971, section 3C
[7] Children Act 1989, s 23C (4) (b)
[8] Nationality, Immigration and Asylum Act 2002, Schedule 3
