A senior European Commission source told The Herald proposals for the new charge would be open to challenge on the grounds of discrimination.
The warning came after Michael Russell, the Education Secretary, told the Scottish Parliament he would look at generating £22 million through a new “service charge”.
Currently operating in Ireland, the payment is not a tuition fee, but funds elements of administration such as student registration, exams, and library and IT services.
“We will bring forward a package of measures. This includes plans ... to explore the suggestion that we adopt the Irish model, which generates income from EU students,” Mr Russell told Holyrood.
However, a crucial difference between the Irish model and the scheme suggested by Mr Russell is that no Scottish students would have to pay, compared with some 60% of Irish students. That could be deemed to be indirect discrimination because it would impact on a substantially higher proportion of students based on their nationality.
The EC source said: “An Ireland-style scheme could be introduced, but it would have to be genuinely means-tested and it would have to cover Scottish students, which would inevitably mean some would have to pay.
“If a European student challenged the fairness of the scheme, the European Court of Justice could well rule against the Scottish Government.”
Alastair Sim, director of Universities Scotland, which represents university principals, also questioned the scheme.
“It’s important that Government looks seriously at whether it may be able to change its policy in this area, but it’s not yet clear whether this would be achievable under EU law,” he said. “Until these legal uncertainties are resolved, we cannot rely on projected income from EU students as a means of addressing the funding gap.”
A spokesman for Mr Russell said: “Details of this are still being examined, including all aspects of EU law, but given this has been successfully implemented in Ireland, it would be odd if the Scottish Government did not take a serious look at whether it could work here.”
The plan is part of wider proposals to close a funding gap of up to £200m between Scotland and England as a result of the introduction of annual tuition fees of up to £9000 south of the Border.
It is feared Scottish universities could fall behind rivals in England and Wales as they would no longer be able to attract the best academics or keep facilities at the cutting edge. The Scottish Government has put forward a raft of suggestions, including higher fees for students from England, private-sector investment and philanthropy. Ministers have also pledged to fill any remaining funding gap directly out of public funds.
Yesterday, Mr Russell also stressed the importance of looking at ways of raising income from EU students following the arrival of record numbers in recent years – currently nearly 1600 costing the taxpayer £75m a year.
European law means the Scottish Government is obliged to pay the fees of such students but, with public spending cuts ahead, Mr Russell said this was no longer an option.
The scheme would see all students charged the £1700 fee but only EU students would actually pay it, with the contribution for Scottish students going directly to institutions from the Scottish Government.
Margaret Smith, the Scottish Liberal Democrats’ education spokeswoman, agreed with Mr Russell that more should be done to get additional income from EU students. “We have to make Scotland’s universities the most competitive they can be,” she said.
However, Des McNulty, education spokesman for the Scottish Labour Party, said the Government should already have known whether the current scheme was legal.
“The fact this idea is being raised in Parliament without Mr Russell knowing whether it is legal or not is an indication of the lack of serious attention the SNP is giving to this issue,” he said.
Liz Smith, education spokeswoman for the Scottish Conservatives, said she believed the funding gap was even larger than outlined by Mr Russell and that a graduate contribution was needed.
The warning came after Michael Russell, the Education Secretary, told the Scottish Parliament he would look at generating £22 million through a new “service charge”.
Currently operating in Ireland, the payment is not a tuition fee, but funds elements of administration such as student registration, exams, and library and IT services.
“We will bring forward a package of measures. This includes plans ... to explore the suggestion that we adopt the Irish model, which generates income from EU students,” Mr Russell told Holyrood.
However, a crucial difference between the Irish model and the scheme suggested by Mr Russell is that no Scottish students would have to pay, compared with some 60% of Irish students. That could be deemed to be indirect discrimination because it would impact on a substantially higher proportion of students based on their nationality.
The EC source said: “An Ireland-style scheme could be introduced, but it would have to be genuinely means-tested and it would have to cover Scottish students, which would inevitably mean some would have to pay.
“If a European student challenged the fairness of the scheme, the European Court of Justice could well rule against the Scottish Government.”
Alastair Sim, director of Universities Scotland, which represents university principals, also questioned the scheme.
“It’s important that Government looks seriously at whether it may be able to change its policy in this area, but it’s not yet clear whether this would be achievable under EU law,” he said. “Until these legal uncertainties are resolved, we cannot rely on projected income from EU students as a means of addressing the funding gap.”
A spokesman for Mr Russell said: “Details of this are still being examined, including all aspects of EU law, but given this has been successfully implemented in Ireland, it would be odd if the Scottish Government did not take a serious look at whether it could work here.”
The plan is part of wider proposals to close a funding gap of up to £200m between Scotland and England as a result of the introduction of annual tuition fees of up to £9000 south of the Border.
It is feared Scottish universities could fall behind rivals in England and Wales as they would no longer be able to attract the best academics or keep facilities at the cutting edge. The Scottish Government has put forward a raft of suggestions, including higher fees for students from England, private-sector investment and philanthropy. Ministers have also pledged to fill any remaining funding gap directly out of public funds.
Yesterday, Mr Russell also stressed the importance of looking at ways of raising income from EU students following the arrival of record numbers in recent years – currently nearly 1600 costing the taxpayer £75m a year.
European law means the Scottish Government is obliged to pay the fees of such students but, with public spending cuts ahead, Mr Russell said this was no longer an option.
The scheme would see all students charged the £1700 fee but only EU students would actually pay it, with the contribution for Scottish students going directly to institutions from the Scottish Government.
Margaret Smith, the Scottish Liberal Democrats’ education spokeswoman, agreed with Mr Russell that more should be done to get additional income from EU students. “We have to make Scotland’s universities the most competitive they can be,” she said.
However, Des McNulty, education spokesman for the Scottish Labour Party, said the Government should already have known whether the current scheme was legal.
“The fact this idea is being raised in Parliament without Mr Russell knowing whether it is legal or not is an indication of the lack of serious attention the SNP is giving to this issue,” he said.
Liz Smith, education spokeswoman for the Scottish Conservatives, said she believed the funding gap was even larger than outlined by Mr Russell and that a graduate contribution was needed.
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