 Okay. Good morning, and welcome to the 18th meeting of the Education, Children and Young People Committee in 2023. Stephanie Callaghan has sent her apologies this morning. Our first item of business is consideration of subordinate legislation, SSI 2023142, the Education, Fees and Student Support, Miscellaneous Amendment, Scotland Regulations 2023. Those regulations that are being considered under the negative procedure will amend the Education, Fees Scotland Regulations 2022 and the Student Support Scotland Regulations 2022 to include a new provision for individuals who have been granted a form of leave to enter or remain in the UK. The committee wrote to the minister for higher and further education and the minister for veterans for more information about the regulations and received a response. There were still some issues outstanding, so we welcome the minister for higher and further education and the minister for veterans Graham Day to give evidence on this this morning. The minister is joined by Nicola Nisbyt, head of strategic policy, Scottish Government and Magdalene Boyd of the Scottish Government legal directorate. Good morning, everyone, and thank you for your attendance, particularly in such short notice. We have agreed that the minister will give an opening statement before we move to questions from the committee members. Minister, you have up to three minutes please. Thank you, convener. Good morning. Thank you for the opportunity to address you today in regards to the amending regs before you. As I set out in my letter of 31 May following a judicial review at the Court of Session last year, the court declared that the long residence provisions within our education fees and student support regulations were unlawful. Those provisions were originally brought in following a judicial review at the UK Supreme Court on the position in England and with a view to providing an opportunity for students who were not born in the UK nor had indefinite leave to remain with an opportunity to access financial support when proceeding into further and higher education. Whilst the lengthy timescales associated with the long residence provisions drew criticism from the Court, the position of offering full support to those who live in Scotland and regard it as their home and are therefore more likely to stay here after study and contribute to society is a sound one. At the conclusion of the judicial review proceedings, ministers committed to bringing forward amending regulations for the start of the 2023-24 academic year to ensure that students who had made Scotland their home or who resided in the country and wished to study in further or higher education had parity of access to support like their school peers. The Scottish Government launched a public consultation exercise on the proposals in January 2023, alongside undertaking stakeholder engagement, all of which helped shape the proposals before you today. The proposals expand the pool of students from a range of immigration statuses who can now be deemed as Scottish domiciled. It means for the purposes of being assessed for a home fee place with access to tuition fees and in some instances access to student bus rates and or loans, all students, other than accepted groups, must now meet the same length of residence in the UK three years to access this support. This sets all potential students who have a lawful basis for residing in the UK and wish to proceed to further and higher education on a level footing with their school peers in terms of time in the UK or Scotland bar some noted exceptions. If those amending regulations were to be annalled, the substantive regulations would revert to our position pre-long residence. That would undoubtedly cause deep upset amongst many members of our communities who have made Scotland their home and wished to pursue further and higher education and would no longer be able to do so. I look forward to discussing this further and I should say that I have bought my most two well-versed officials with me in order to assess those proceedings. Thank you very much, minister, for coming, especially to short notice. We understand that it is not a normal circumstance, so we appreciate your time. The legislative landscape is constantly changing, particularly with Brexit. Are we confident that this will not open the door to the rest of the UK students being able to apply for those rights and opportunities in Scotland in the same way that this expanded group is entitled to? We are confident that the regulations still continue to require ordinary residence in Scotland. You have to have been in the UK for three years and are currently ordinary resident in Scotland. That term is used in a wide range of case law, but in our regulations we expand on the definition of ordinary resident for the purposes of student support. That includes a category clarifying the fact that if you are in Scotland just to access education, you are not considered to be ordinary resident in Scotland. That provision, which has always been in our regs, prevents forum shopping from the rest of the UK. You do not foresee any subsequent legal challenges that might open that opportunity. You are confident that this is robust. Yes, the Scottish Government is confident just now. Stephen Kerr supplementary on this? Yes, he said that he is confident just now, and that is probably legal speak for not setting anything concrete. I have concerns about how this will be interpreted because of the terminology of ordinary resident. For example, in the spice briefing for today's session, it says that the Scottish Government expects someone who is ordinary resident in Scotland to have made their home in Scotland with the intention of staying and living here. I feel that that is a huge open barn and door because how are we going to test expectations and intentions? Someone could move here, for example, at Easter and do a summer job basically through the spring into the summer, apply to go to a Scottish University, have an address in Scotland, be able to prove that they are resident there, produce the necessary documentation and then make an application. That is correct, is not it? Just to clarify, that is not something that is in these amending regs just now. That is something that has been in our student support legislation since the rest of the UK increased attrition phase, the ordinary resident's requirements. The message is not captured by the regs, but in the letter the criteria that is given is ordinary resident in the UK for three years, ordinary resident in Scotland on the relevant date, which is the date of the commencement of the course and granted a form of leave, etc. We absolutely want our friends that have joined us in Scotland for various reasons, most notably the Ukrainians, to have access to higher education and further education. You are saying that nothing will have changed in respect to people from the rest of the United Kingdom, whereas the way that it reads, to me, as a non-lawyer—very important, I make that point—sounds like there are ways to get around that. Yes, no, there is nothing in our current amending regulation that has changed the position of access to Scottish universities or funding arrangements for students from the rest of the UK. The scenario that I suggested, that individual who has an address in Scotland who has been here for a few months would not qualify. No, they potentially would qualify, depending on the assessment by SAS, but that has always been the case. If SAS determines that they have made Scotland their home, even if it can be immediately, if that family has moved house from England prior to the relevant date, it is a bit on-going intention. You are talking about deeming the system. That is not going to happen. That is not going to happen, because we have the fallback of SAS as well. I appreciate the minister putting you on the record. The reason that I am labouring on this point is that I am sure that the minister understands that this is the nature of the cap, the nature of the number of places and the financial commitment of the Scottish Government around those places. I am obviously anxious that Domicile Scots should be able to take up those places. I hope that that is seen as a natural inclination that I would have as a Scot. Thank you minister for coming along this morning. I want to reiterate my colleague Willie Rennie's thanks to you for that, because I know that it is an unusual situation. I do really appreciate you shifting things around and being here. The issue first came to my attention when a colleague of mine, Paul Sweeney, who was then an MP, wrote to John Swinney in 2017 about a family that was really struggling to get access and wanted to contribute through this system. I understand value and support the changes that are in the SSI. My concern is that universities in the current circumstances need to understand what that will mean for places and finance. How many people will be able to access home tuition fee rates and living costs as a result of the changes in the SSI? What additional pressure will there be? We estimate the numbers to be somewhere between 36 and 76. To put that in perspective, we are looking at somewhere between not 0.03 and not 0.06 per cent of a pressure. How have you come to the conclusion of those figures? In the response from the 31st of May, we had set out where the parity was, which is the payment scheme that is running at the moment through SAS to support those students that have been impacted by the judicial review decision. At the moment, we have under 80 students in each of the year cohorts 2020 to 2021 and 2021 to 2022 academic years. However, we have also done some kind of manual looking at the amount of applications that have come through since SAS opened for applications in April. Out of that, we reckon from the amount of applications that have come through that there is about 0.03 per cent that are of new students that would not have been eligible previously. That is just based on the applications. Obviously, this is the first year that we will be intending to run these new regulations. That is what we can give just now, as that percentage point over the 120,000 students that would access funding through HE. That is where the figures came from, that kind of variance. Are you confident that that will not increase as a result of the SSI? That is the number. The 20 numbers are using the parameters from the SSI. The payment scheme was on the eligibility, which is in a very similar vein to what is in the SSI now as well. Can I ask, does that include the changes for postgraduate study? The changes for postgraduate study is a technical change. It is to do with students who wish to study in the rest of the UK before there could not be an equivalent in Scotland in order to do that, and that removes that requirement now. It is not expected to be big numbers. Many of the students who were studying in England, Wales or Northern Ireland were choosing to go into postgraduate study, and if there was no equivalence, they were able to do that and be funded. The other change for postgraduate study is that the tuition fee has increased as well for 2324. On what basis do you think that it is a technical arrangement only? My understanding is that there are approximately 11,000 undergraduate students, and 5,000 go on to do postgraduates elsewhere in the UK. That is a pretty big number. Do you know how many of those people will now be able to access free tuition as a result of the changes? I do not know, but I can definitely take that back and report back. Just to put on the record, it is a really beneficial change. I can see that it would mean that people could naturally follow on their course of education, but I think that the numbers are quite big. Can you tell us again, minister, if there is going to be any additional funding associated with some of those changes for universities? Given the numbers, no, not at this stage. Is that something that you would look at doing in the future? How many would need to increase before you would start to give universities more money? It is impossible to answer that, but we are always reviewing how we provide support, and there are on-going processes that will follow from that. Of course, we will continue to look at it. Clearly, if there was a very substantial increase, that would have to be taken on board. What would you consider to be a substantial increase? I am not going to be pinned down on a number. I think that we can all work out what a substantial increase ballpark would look like. I give the assurance that we will continue to look at this. I appreciate that assurance, and I welcome it. I welcome the further correspondence on the numbers, but I am not giving a particular number of what you consider to be substantial. It presents the question for universities who already know that there is demand for capped places and that that demand outstrips the supply. That could further increase that demand for good reason, as I set out when I started. However, it is only fair that universities have an understanding about what the likely costs could be and what the implications for funding in capped places will be. I am in no doubt that they will be seeking such an understanding, and we would provide that, although it would always be reasonable. I also clarify some of the terminology that was used by the member, Pantheon. It is not free tuition for post-graduates that it is. In fact, it is a loan. Can you confirm that for the rest of Nicola? Tuition fee loan and living cost loan for the full-time post-graduate study students, those who are doing part-time tuition fee loan. Minister, in relation to tuition fees, are you willing to consider ideas that have been put forward by Sir Peter Matheson to allow Domicile Scots the opportunity, if unable, to obtain a place on a course at a Scottish Institution? You only need to answer this as briefly as you require, Mr Day, because the context of this is specifically on the SSI in front of us today. I would refer Mr Kerr to the answer that I gave previously while sitting here a few weeks ago. Can we move to questions now from Bob Dorris, please? It is interesting to talk about what I gave a few weeks ago, because I want us to go back to the future a little bit in relation to this. When I was first elected in 2007, a young constituent of mine from Sight Hill, originally from Mogadishu in Somalia, couldn't go to university because of roles and regulations at that time. I made representations to the then Cabinet Secretary for Education Fiona Hyslop and regulations brought in place to allow young people from asylum-seeking families to go to university. That is something that we have previously fixed and dealt with appropriately before. Unfortunately, through the passage of time, we have not kept the required legislation as attentive as it had to be to make sure that future generations of young people in the asylum process could get their right to an education. My question is that those provisions will be kept under review to make sure that we do not find ourselves in that back to the future position again, where we previously, as a Scottish Government, did the right thing, certainly for my young constituent, was the first asylum-seeking under 18 to go to university in Scotland with a fully funded place. We were talking about this prior to coming into the committee today about the need to ensure that all regulations that cover the area are kept up to date, as far as that is possible to do. It would be very much our intention to accept the pressures that exist on Government in a variety of ways. That is helpful. I said back to the future proofing. I have a constituent who was over 18 at the time where they arrived in Scotland, but they behaved for a heck of a long time way beyond three years. They still have no decision on their case. They have no temporary leave to remain. They are keen to get a higher education place at City of Glasgow College. They will not be captured by those regulations, and I absolutely understand why. At some point, of course, something has to give. Preferably, the Home Office will get their decisions correctly and speedily to give my constituent the rights to deserve, but at what point will the Scottish Government return to look at those matters for adults who wish to be students who are caught up in a system, not from their making, to address those points? Will the Scottish Government look at that at some point for the benefit of my constituent? Yes. We have put it into a future work plan, and it was put as part of the consultation analysis report that was published on 12 May of areas of work that were highlighted through the consultation and stakeholder engagement that would need to have further engagement, which is what Government officials would have to have further engagement on. One of those is asylum seekers who have submitted a claim over the age of 18. That is an area of work that we have recognised that there were issues raised through the engagement process. I think that it is relevant to the statute. Yes, I get that, but I am asking you to be more concise with your question. I thought that I was given the appropriate context. My constituent, who I have got City of Glasgow College to accept that they would charge home student fees if they were able to uptake that place and have no right to funding from SASS, is the Government looking at any pot of cash that is hugely challenging in the current times that may be accessible for students in that situation where the higher education institutions agreed to charge home student fees where they do not have to but they are willing to to allow my constituent others to access higher education? Yes, the guidance for the discretionary funds and further in higher education for both further and higher education have provision for support for asylum seekers who are facing financial hardships. Even if they are not SASS funded, there is a way that asylum seekers can access hardship support that comes through Scottish Government funding to the colleges and universities. Thank you. A final question, convener. All relevant to the statute. I understand that. I am just trying to meet you. I know that we are here to scrutinise the statute, convener. There is another issue that I have experienced that is students who apply to university who have temporary leave to the main but that are overall futures uncertain for universities in the past have been reluctant to accept them because they may not be able to give a guarantee that they can finish their course. That may be a thing of the past now but is the minister aware of that as having an issue previously and should it be an issue? It is not an issue that I am alive to but please bear in mind that I have been in post about nine weeks. Thank you very much for those responses. Do members have any further comments that they wish to make? That is where you would prompt any further action. I am just making that clear now. Are we all okay? Okay. Thank you very much. We would like to thank you for your time this morning and we will take a short suspension to allow our witnesses to leave. Okay. Thank you. Thank you very much. Welcome back. The committee must now decide whether it wishes to report on the negative instruments. When I look for members to speak. I think that we asked all the questions that we had concerns about and I think that we had as clear of assurances that you could expect from the minister. I suspect that this may come back again in another form at some point but I think that for now I am satisfied. I too am satisfied. I appreciate the minister's willingness to send information to the committee when he has it. As long as we have a mechanism to make sure that that is forthcoming then I am content. Stephen Kerr? Yes, I completely agree with Willie Rennie. The minister gave categoric assurances around things but obviously we will have to monitor the situation as it develops because there are clear issues that may come back to us in due course. I welcomed the instrument before I heard from the minister. I got the assurances that were required from the minister that it is a robust instrument. The only further assurance is one in the future of course that our committee will continue to monitor this and perhaps return to this in the next parliamentary session to see how successful it has been and how we have to improve it further. Okay. Thank you very much. Anyone else wishing to comment? So is the committee agreed that it does not wish to make any recommendations in relation to this instrument? Agreed. Okay. So thank you and that concludes our business in public this morning and we will now move into private for our final agenda items.