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These Regulations amend the Education (Fees and Awards) Regulations 1997 ("the 1997 Regulations") in relation to Wales. The 1997 Regulations were made under sections 1 and 2 of the Education (Fees and Awards) Act 1983. The powers under section 2 (which relate to discretionary awards) were devolved to the National Assembly in relation to Wales in 1999 (when the Assembly acquired its first functions). The powers under section 1 (which relate to the charging of fees at further and higher education institutions) were not, however, transferred until June 2006.
The 1997 Regulations provide that, in specified cases, it is lawful to differentiate between the persons mentioned in the Schedule to those Regulations and persons not referred to in the Schedule in respect of the charging of fees and the making of awards. By virtue of section 26 of the Teaching and Higher Education Act 1998 and section 29 of the Higher Education Act 2004, no condition imposed to limit tuition fee amounts under those Acts applies in relation to any fees which are payable by students other than those who fall within the prescribed class of persons who have a specified connection with the United Kingdom under regulations made under section 1 of the Education (Fees and Awards) Act 1983. The Schedule to the Regulations (as amended) sets out the class of persons who have that specified connection with the United Kingdom.
Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 (OJ L158, 30.04.2004, p77-123) is about the rights of citizens of the Union and their family members to move and reside freely in the territory of the member states. Certain categories of person who were not formerly entitled to equal treatment with nationals of the United Kingdom in relation to tuition fees and maintenance support will be eligible as a result of the Directive.
The changes needed in order to give full effect to the Directive in relation to tuition fees and discretionary awards were implemented by the Education (Fees and Awards) (Amendment) Regulations 2006 made by the Secretary of State for Education and Skills. The changes made by those Regulations apply to Wales insofar as they relate to tuition fees (which were not devolved until June 2006). In their application to discretionary awards (where the power to make regulations had already been devolved), the changes apply only to England. The effect of the present Regulations is to apply those latter changes to Wales.
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