Education is compulsory for children from 5 to 16. This includes children seeking asylum, who attend mainstream schools local to where they live under the same conditions, formally, as other children in their area. However, destitution may affect their access to education. For instance, children on Section 4 support are not entitled to free school meals or other benefits and yet have no cash to pay for school meals. There are not generally preparatory classes to facilitate access. If children seeking asylum have special educational needs these may be assessed and met as for other children.
There is no general legal bar to adult asylum seekers entering into education, although specific prohibitions on people claiming asylum can be placed through a bail condition, and many people have been affected by it, particularly as the first iteration of the guidance was unclear in the government’s position that there should not generally be bar on asylum seekers accessing education until a refusal of asylum. The Home Office also conceded a judicial challenge establishing that there should not be a general bar on refused asylum seekers accessing education.
Whilst children are entitled to access free school education, the barriers for adults in further and higher education are financial since (other than in Scotland) in addition to the high fees and lack of access to loans they also have no access to mainstream benefits or work. Indeed, the UK maintains different provisions for 'home' students and 'overseas' students for further and higher education. Regulations permit universities to charge higher fees to overseas students than to home students. The regulations do not compel universities to charge these higher fees, but a government subsidy is only paid for home students, and so for economic reasons universities charge the higher fees. Asylum seekers are routinely classed as overseas students, and are thus liable to pay overseas student fees for university education of £8,500 to £29,000 per year (approx. between €10,100 – €34,500). This is prohibitive generally for someone seeking asylum.
In Scotland, the child of an asylum seeker or a young asylum seeker (under 25) is treated as a home student if they meet a set of residence conditions including 3 years residence in Scotland.
In England, Wales and Northern Ireland some universities have agreed to treat asylum seekers (generally on a limited individual basis) as home students. However, there has been a judicial development in relation to education costs for young people who have been in local authority care. The Court of Appeal held that there is a duty on a local authority to make a grant for educational expenses as part of its support to a child leaving its care, to the extent that the child’s educational needs require this. The court held that their immigration status was relevant to their need. The resources of the local authority were not relevant.
If a person is eligible under the regulations to pay ‘home’ fees, it is worth checking the relevant student support regulations. Student support is governed by ordinary residence in the country where they have been living, not where the educational institution is. So someone could be a 'home' fee payer if studying in Wales, Northern Ireland or Scotland, but if ordinarily resident in England before moving to undertake their course, they would not be eligible for any student support at all when they claim it (from Student Finance England) in England. Even where a university agrees to treat an asylum seeker as a home student, that person may still need finances to pay the fees. The United Kingdom Council for International Student Affairs (UKCISA) gives advice and information on student finance and fee status.
As explained in Unaccompanied Children, young people whose asylum claim is refused are commonly given ‘UASC leave’. They may apply to extend this before their 18th birthday, and so may be applying to higher education while still on UASC leave. Young people in this position are also treated as overseas students. This can impose obstacles on young people who have sought asylum and are leaving local authority care.
Under certain conditions asylum seekers are treated as home students for the purposes of further education. In England, this is the case for those aged 16 to 18, or who have been waiting for a Home Office decision for more than six months, or who are on Section 4 support or other statutory assistance. In Wales those on asylum support are treated as home students. In Northern Ireland asylum seekers and their families are treated as home students. In Scotland, the conditions are as for higher education, and in addition full-time English courses for speakers of other languages (ESOL) and other part-time courses may be taken by asylum seekers as home students. One effect is that in England there is a six month wait for eligibility for free English classes. Research conducted in 2019 reported upon the practical barriers and provides a summary of the changes in ESOL provision in recent years.
In addition to financial difficulties, language, interrupted education due to experiences as a refugee, and incompatibility of educational systems and qualifications may all be barriers to access to further and higher education.
Duncan Lewis Solicitors, News: ‘Home Office concedes unlawful imposition of study restriction as a bail condition on individuals who are ‘appeals rights exhausted’, November 2019, available at: https://bit.ly/36qhFr3.
Reg. 4 Education (Fees and Awards) (England) Regulations 2007 SI 779; Reg. 4 Education (Fees and Awards) (Wales) Regulations 2007 SI 2310. The residence requirements in England are mitigated by Supreme Court judgment in R (on the application of Tigere) v Secretary of State for Business, Innovation and Skills UKSC  57 which held that the English requirement for the applicant to be settled (i.e. have indefinite leave to remain) was discriminatory and unlawful. Other residence requirements remain in place.
Reg. 4 Schedule 1 Higher Education (Fees) (Scotland) Regulations 2011 SI 389.
Court of Appeal, R (Kebede) v Newcastle City Council  EWCA Civ 960.
The residence requirements for access to student loans in England are mitigated by Supreme Court judgment in R (on the application of Tigere) v Secretary of State for Business, Innovation and Skills  UKSC 57 which held that the English requirement for the applicant to be settled (i.e. have indefinite leave to remain) was discriminatory and unlawful. Other residence requirements remain in place.