The legal view: Brexit, tuition fees and equality legislation

What tuition fees will the 125,000 non-UK European Union students studying in the UK pay in the event of a Brexit?

The short answer is we don't know. What we do know, however, is that equality legislation may prove a barrier to any institution wishing to diverge from whatever UK legislation is then in place that defines who may be treated as a home student for fee-charging purposes.

Universities are required by the Equality Act 2010 to treat students in a way that does not discriminate on the grounds of any "protected characteristic" such as race (which includes nationality), age, sex and disability. An exception to this rule is where the discrimination is mandated by other legislation.

It is this exception that currently enables universities to charge UK and other EU students home fees with a higher level of overseas fees being paid by those from outside the EU.

Secondary legislation made in each of England, Scotland, Wales and Northern Ireland provides for this lower level of fees to be paid by students from across the EU who come to study in the UK. Notably, the detail of the regulations governing who qualifies as a home student are complex and an EU applicant's entitlement to pay home fees rests on both nationality and residency requirements and also extends to most European Economic Area nationals.

If the UK votes to leave the EU on Thursday, the treatment of EU students at universities will no doubt be one of the many items to be addressed during the Brexit negotiations.

If these negotiations conclude with EU students being re-categorised as overseas students (and a similar re-categorisation presumably being made for UK students studying elsewhere in the EU), then the secondary legislation allowing this differential fee status will require amendment. Once the amendment is enacted, universities are unlikely to have any option but to charge those EU students the higher level of overseas fees.

Universities offering any special fee treatment for EU students that gives them preferential treatment in comparison to other overseas students could face claims of discrimination under the Equality Act, given that there will (presumably) no longer be an exception to the general principle of treating students equally in the terms of their admission and treatment.

Any such claims may be quite difficult to defend, since the discrimination – if deemed to be direct – could not be justified. It is also difficult to identify other exceptions under equality law that might facilitate differential fee-charging for a limited period, absent this being authorised by legislation.

While it must be hoped that transitional provisions would ensure that students currently studying in the UK would not face a significant fee increase while partway through a course, there is no certainty on this, and much will depend on the approach to the broader negotiations between the EU and the UK government.

For a student whose fee status changed midway through their course, the increase could more than triple their fees. The increase will be particularly significant for those undertaking laboratory-based courses or medical degrees, where overseas fees can be as high as £35,000.

The options for universities wishing to provide some meaningful information to prospective applicants from the EU are currently very limited. If the UK does vote for Brexit, then it may be some time before we know the impact on EU students studying in the UK, given that it is likely to be months before any Brexit negotiations get under way.

Elizabeth Jones is a senior associate at Farrer & Co law firm.