SFE Assessing Eligibility Guidance 2013/14 - Practitioners - Student ...

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2013/14 HE Student Finance Assessing Eligibility Guidance Switzerland and Turkey) will normally retain the relevant connection with the UK (or EEA, Switzerland and Turkey), and therefore be eligible for support. The Department is of the view that the relevant period of their residence should not be regarded as being „wholly or mainly for the purposes of receiving full-time education‟ simply because they are still here and receiving education while their parents are temporarily employed abroad. Paragraph 2(2) of Schedule 1 states that the three years‟ residence in the UK and Islands was not wholly or mainly for the purpose of receiving full-time education does not apply to a person who is treated as ordinarily resident in the UK and Islands in accordance with paragraph 1(4) of Schedule 1. 55. A person who has entered the country on a student visa may initially be ordinarily resident here primarily for educational purposes, but the purpose of residence may subsequently change. However, as always, SFE should make a decision in such cases based on the particular facts. Possible considerations when establishing temporary employment abroad 56. In reaching a judgement, SFE will wish to satisfy themselves that the period abroad arises from employment; judge whether or not the absence is temporary; and decide whether, but for the employment of the applicant (or parents or spouse/civil partner etc.), he or she would have been ordinarily resident in the relevant place. In making their decision, SFE may wish to consider among other things, the nature of the posting; the terms of any contract or employer's letter; the period of time spent abroad; the time spent in this country; and whether a residence has been maintained in the UK (or as the case may be EEA, Switzerland and Turkey). 57. The onus is on the applicant to satisfy the authority that: his absence was due to employment abroad; and this employment was temporary; and were it not for temporary employment abroad he would be ordinarily resident in England or the United Kingdom and Islands (or the EEA, Switzerland and Turkey as appropriate). 58. In determining whether the absence was for purposes of employment, but the applicant was not in employment immediately after moving overseas, SFE may wish to consider: • Whether the applicant had applied for jobs prior to his or her departure; • The length of the time spent overseas before obtaining work; • Whether the applicant resided in the same overseas country before and after obtaining a job; • What the applicant was doing prior to obtaining a job, or between jobs. • In determining whether the employment was temporary or permanent, SFE should consider: The nature of the contract: • Does the contract include liability for UK (or EEA, Switzerland and Turkey) tax on earnings Version 1.8 16
2013/14 HE Student Finance Assessing Eligibility Guidance • Is the posting for a specified period If it is for an unspecified period, what is the reason for this • How long is the contractual period • Is the contract renewable Would it be normal or unusual for the contract to be renewed on its completion Has the contract already been renewed or is it one of a succession of contracts abroad • Does the contract convey automatic rights of return to this country from time to time • If there is no contractual period, how long has the employee already been resident abroad • The nature of the work: • Is it normal for the nature of the trade or profession to be mobile • Is mobility a condition of service A right of return: • Does the applicant (or parent, spouse/civil partner etc.) have an automatic right of return to work in his or her organisation (or a related one) on completion of the duty abroad Periods between overseas postings: • Have such periods been spent in this country, i.e. in the employer‟s HQ or UK (or EEA, Switzerland and Turkey) offices Previous contracts: • Is the present contract a first overseas posting of its type, or is it a continuation of previous similar contracts Authorities may wish to bear in mind domestic employment case law; industrial tribunals have ruled that a succession of similar temporary contracts can be construed as permanent employment. A series of short contracts may be the result of a genuinely temporary posting, which is kept under review or may indicate a long-term posting with the contract being renewed as a matter of formality rather than a real review. 59. The list above is not exhaustive. Nor will all of the questions apply in every case. It emphasises however that each case must be dealt with individually and that decisions on whether employment abroad is permanent or temporary must not be decided solely on the length of period spent abroad, but in conjunction with the nature of the work and the employment pattern of the applicant. Again, SFE will wish to consider whether it would be confident that its decision would be upheld if it were challenged in Court. Determining whether an applicant would have been ordinarily resident but for his temporary employment abroad 60. The applicant should be able to demonstrate that, other than for the temporary employment abroad, he or she would have been ordinarily Version 1.8 17
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SFE Assessing Eligibility Guidance 2013/14 - Practitioners - Student ...

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