Nothing has changed but everything is different

It is very difficult to make predictions about the legal consequences of the UK’s referendum on the EU, as so much uncertainty abounds as to the timing, nature and practical consequences of a Brexit. Entirely understandably, however, universities are having to think about what it might mean for all aspects of their operation.

A very important part of their deliberations will relate to the impact on both current and potential future EU students. The main questions that need to be answered relate to: (a) their eligibility to be here; (b) the fees that they can be charged and their access to support for paying those fees.

The immediate answer - as Jo Johnson's statement has clarified - is that nothing has changed. These students legal rights are exactly as they were before last Thursday’s vote. As many readers will already know, the referendum result is advisory and not legally binding. Only when the UK Government makes an Article 50 notification to the European Council will the process of agreeing the terms of our departure from the EU begin. It must be completed in two years unless extended by agreement of all member states. So for up to two years after the formal notification (and possibly longer) EU students' legal position will not change. That bald statement of law is not in any way intended to understate how such students will be feeling very differently about their engagement with the UK as a result of the vote.

Looking to the future, there is a clear possibility for significant change. Unless the UK agrees to continued freedom of movement as part of any new deal with the EU, applicants from the EU will have to be subject to some form of immigration control. This will most likely through the Tier 4 route, although there is nothing to stop a separate route being developed for students from particular regions. There are already variations in the requirements for, for instance, English language testing for different groups and this could be further developed to create bespoke immigration requirements for EU students within the Tier 4 route.

Even if the new visa requirements are minimised, they will still create additional cost and administrative burdens for recruitment, and may reduce the pool of potential applicants, particularly if any financial means requirement is set at a high level. As the government’s plans for Brexit develop, universities must campaign for a lighter touch and proportionate form of immigration control they want to see. If the free movement of non-skilled EU migrant workers comes to an end, it may become politically possible to liberalise the controls for students and skilled migrant workers, which would have obvious benefits for universities.

Assuming that free movement principles are no longer agreed, what fees will universities will be able to charge these students and what student support will be available to them? The existing fees legislation ensures that UK/EU and certain other European students cannot be charged more than “Home” fees (either the statutory maximum for qualifying courses or the home fees the university sets for courses to which the statutory maximum does not apply). Overseas (i.e. non-UK/EU students) may be charged higher fees. There is no obligation to charge overseas students more; it is merely lawful to do so. Exit from the EU will move students from the former to the latter category and it will be possible to charge them higher fees. It is to be expected that the legislative change needed to re-categorise students from the EU in this way will make it clear that the change will only apply to new students enrolling on courses after the law comes into force. This is how legislation increasing fees to date has worked.

The alternative is to permit substantial fee increases midway through a course (assuming it is even permissible under the terms of the contract with these students) and to remove student support midway through a course. Not only would this be unfair (something one would hope Parliament would continue to want to avoid in legislating) but it creates risks both for students, who may not be able to afford the increased fees and may therefore have no choice but to withdraw, and institutions, for whom such withdrawals would represent the loss of budgeted fee income at the lower rates.

Failing to increase fees for EU students once they are no longer treated the same as home students by legislation might expose universities to claims for discrimination by other overseas students. This depends on whether the continued differential fees is regarded as direct discrimination on the grounds of nationality, which cannot be justified in any circumstances, or indirect discrimination on the grounds of residence/settled status, which may be capable of justification.

For all these reasons, universities will need to try to ensure that legislation removing EU students' special status for fee and student support only affects new students, and not those already enrolled at that date.

There will come a point where universities may have to start advertising courses without knowing exactly what the fees and student support position for EU students will be. From a consumer law perspective, there will need to be clear statements on websites and prospectuses about the fact that the future fees/ student support position is unknown.

Brexit will not only affect EU students, but also UK ones. Many universities have academic collaborations and placement agreements with institutions in other EU countries. These will need to be reviewed to see if they need renegotiating or amending to deal with cross-border regulatory changes around movement and study. This may reduce the amount of these opportunities that UK students have. The Erasmus scheme is also obviously at risk.

Universities who rely heavily on staff from EU countries may also need to be aware that some of these staff may choose or be required to leave the country once the terms of the negotiation are known. The capability and capacity gaps created could potentially affect the delivery of programmes, which in turn may expose institutions to complaints and claims from students.