We have heard anecdotal reports from a number of our clients in the further and higher education sector about specific impacts on them of the UK's decision to leave the EU.

The two key issues have attracted a lot of recent media coverage: the fees status of EU students and the availability of research funding from the EU.

EU students cannot currently be treated differently to UK students when it comes to fees. This is the result of EU free movement principles and the complementary right not to be discriminated against on the grounds of nationality when exercising free movement rights. That may change after Brexit (depending on the terms of the UK's departure from the EU) and universities may be able to deal with EU students as they currently deal with international students from outwith the EU, including by charging higher fees.

In Scotland, existing EU students and prospective students matriculating later this year can take some comfort from the joint statement issued by the Scottish Government and Universities Scotland on 1 July. The statement gave a clear commitment to continued free tuition for these students throughout the duration of their course, even if the UK ultimately leaves the EU before they have graduated. No similar representation has been made for students matriculating in subsequent years. Universities will be concerned that the lack of clarity over fees status may deter EU students from applying for courses before the Brexit process is complete. Dame Julia Goodfellow, President of Universities UK, has urged the government to give guarantees that EU students starting courses in the autumn of 2017 will retain the same access to loans, and be charged the same level of fees, as UK students.

This freezing effect is also being felt by universities in relation to research funding, particularly under Horizon 2020, the largest EU research and innovation programme. The Chancellor has recently promised that UK universities will continue to be allowed to bid for funding while the UK remains part of the EU, and also that the Treasury will underwrite payments of awards even where specific projects continue beyond the UK's departure.

However, universities continue to have concerns about the hesitancy of European institutions over UK participation in joint research projects. A number of universities claim to have had offers of partnership withdrawn or refused in light of the referendum outcome. Jo Johnson, Universities and Science Minister, has asked for evidence of such discrimination by EU universities in relation to funding bids and has said that the UK will make representations to Brussels.

Discrimination on the grounds of nationality in the context of the free movement principles is, of course, prohibited under EU law. Dropping or excluding UK institutions as partners from bids is likely to be discrimination on grounds of nationality. The parties responsible for that discrimination are not other EU countries, but private institutions and universities. Those institutions may be acting in breach of EU law, as the non-discrimination rules have been found by the Court of Justice of the EU to impose obligations on private individuals and bodies, not just states.

It seems the UK Government is attempting a political approach in the first instance, by raising concerns with the Commissioner for Science at EU level. There would be a separate right for UK universities to raise proceedings against their EU counterparts who have dropped them from bids.


Brenda Scott