Memorandum by the Home
The Joint Committee has requested
a memorandum which addresses the following point.
Article 2(a) substitutes a new
head (ii) in the definition of "student" in Article
6(2)(h) of the 1994 Order in terms of a person who provides the
required assurance about resources to the Secretary of State "by
means of a declaration or by such alternative means as [the student]
may choose that are at least equivalent". Explain what alternative
means to a Declaration are contemplated and in what the "equivalent"
is to consist.
The new head (ii) in the definition
of "student" in Article 6(2)(h) of the Immigration (European
Economic Area) Order 1994 is designed to reflect more closely
the requirements of Article 1 of Directive 93/96/EEC on the right
of residence for students. Article 1 of that Directive provides
inter alia that
"... Member States shall
recognise the right of residence for any student who is a national
of a Member State and who does not enjoy that right under other
provisions of Community law ... where the student assures the
relevant national authority, by means of a declaration or by such
alternative means as the student may choose that are at least
equivalent, that he has sufficient resources to avoid becoming
a burden on the social assistance system of the host Member State
during their period of residence, provided that the student is
enrolled in a recognised educational establishment for the principal
purpose of following a vocational training course there and that
he is covered by sickness insurance in respect of all risks in
the host Member State."
The existing text of the 1994 Order
has been construed as entitling the Secretary of State to require
proof that the criterion of sufficient resources is met. The
Directive, on the other hand, does not permit Member States to
require proof of sufficient resources. Instead, it enables them
only to seek an assurance, which the student is permitted to give
either by means of a declaration or by such alternative means
as the student may choose that are at least equivalent. Accordingly,
the new head (ii) has been drafted to reflect what may be required
of a student under the Directive.
The substance of the requirement
is to give an assurance of sufficient resources. The minimum assurance
contemplated is a personal declaration by the student. If alternative
means are chosen by the student, they clearly have to give the
same or greater level of assurance as such a personal declaration.
Whilst ultimately the matter is one for the European Court of
Justice to determine, another means the Secretary of State considers
would give an equivalent assurance would be a declaration by an
apparently reputable person having knowledge of the student's
circumstances, as to the student's resources being sufficient.
Giving a higher level of assurance would be actual evidence of
resources such as bank statements; and undertakings by sponsors
in this jurisdiction to provide upkeep. However, the Secretary
of State would be prepared to consider any other means of assurance
provided by a student against the test set by the Directive and
now reflected in the Order.
3rd February 1998