In ITS recent intervention into the independence debate, the Universities Scotland umbrella body gave the impression of thinking it has played a blinder by latching on to a possible residence test as a way of justifying discrimination against students from other European Union member states. Relying on legal advice, it argues that – after independence – it might be possible to require students from other EU states to pay fees while Scottish students do not. It is said that some sort of residence test can be applied, according to which, presumably, a minimum period of residence in Scotland must be satisfied before higher education is “free”.
In this way, Scottish students will almost always not have to pay fees while students from elsewhere in the EU will almost always have to. Of course, the German student leaving school in Scotland will benefit while the Scottish pupil at a German school will not. No doubt this will be played as a trump card to explain why a residence rule is not discriminatory. But it does not avoid the fact that the vast majority of Scottish school-leavers will automatically satisfy a residence test while almost all school-leavers in other EU states will not. You only have to put the matter this way to see that any residence test is likely to fall foul of EU law.
The European Union Court of Justice in Luxembourg has discussed the operation of residence tests in a number of cases, usually unfavourably. It is true that in the 2005 Bidar case, the court accepted that a residence requirement to qualify for maintenance loans could be justified, despite its discriminatory effects.
And in a 2010 ruling, the court accepted, albeit through gritted teeth, that Belgium might be able to impose a residence requirement for medical students to qualify for admission to Belgian universities. The need to keep open places for home students in that field could outweigh EU equal treatment rules. In many other cases, however, the Luxembourg Court has disapproved of residence requirements.
Additionally, its older case law indicates a stricter approach to equality in relation to tuition fees. This does not augur well for justifying a blanket residence requirement for all students.
The court has also been clear that migrant workers must enjoy all the same rights as host state workers. In EU law, it is very easy for an EU citizen to qualify as a worker in another member state. For example, if a French citizen got a summer job during the Edinburgh Festival, she would almost certainly qualify as a “worker” in EU law. This would accord her all of the rights that Scottish “workers” enjoy and, at least in some circumstances, she would have the right to go to university in Scotland on the same conditions as Scottish students; that is, without paying upfront fees.
In other words, any residence test could easily be avoided because of the ease with which “worker status” can be obtained and retained in EU law. Indeed, the UK government’s attempts to condition entitlement to social security benefits on a residence test has generated years of litigation, with very mixed results.
Even if a residence test could fly, the reasons for having it would have to be balanced against its impact on EU free movement rights. Those reasons would have to be very significant in order to justify discrimination against EU citizens, which was inevitably built into any residence test.
Free movement of students is one of the EU’s prize achievements. Both the Luxembourg court and the European Commission have, for a long time, been keen to encourage student mobility across the EU. This is hardly surprising. Student mobility is a big contributor to breaking down national barriers. Students learn other languages, they stay on, get work, make friends and relationships and some of them become part of national life. In time, they make the EU a real life rather than just an abstract political project.
Indeed, student mobility has never been more important than in these difficult economic times. If prospects are bad in some EU countries, what better way to relieve some of the problems than going to study in a part of the EU where prospects are brighter?
To underline the importance of student mobility, you only need to remember that the EC clothed itself with powers in the field of higher education long before the European treaties acknowledged the existence of some EU competence in this field.
So, any attempt by the Scottish Government to justify different rules for EU students will have to grapple with these legal, economic and political realities. Putting it mildly, justifying different treatment for EU students will be an uphill task.
The news of Universities Scotland’s residence test was also badly timed. On the very day it was released late last month, the UK government was once again hauled before the Luxembourg court in a challenge to the legality of the “right to reside” test for social security benefits. The right to reside test for social benefits is more or less a legislative version of Margaret Thatcher’s famous “no, no, no” to the EU. That this test ever became law in the first place only goes to show that, if there is one government in the EU which seems to get more debatable EU law advice than the Scottish Government, it is the UK government.
If the Luxembourg judges follow through on their earlier free movement decisions, then the right to reside test in UK social security law is unlikely to survive. But whichever way the latest UK case goes, Scottish universities are unlikely to find any comfort in it. The fact is that discrimination against EU students at Scottish universities does not sit well with Scotland’s place in the EU. Think of it this way: what a strange beauty it will seem, the morning after independence, for Scotland to be ironing out its relationship with the EU while arguing for protectionism for Scottish students.
Scotland has some strong cards to play in the EU, from energy to fisheries. But the residence test which Universities Scotland appears to favour is a very weak hand indeed.
• Denis Edwards is an advocate at Terra Firma Chambers