A small number of UK universities have opted to keep European Union student fees at the same or similar levels as those for home students despite Brexit, at least in the short term, with suggestions that others are considering following suit.

The UK¡¯s departure from the bloc and the end of transition arrangements mean that UK universities will no longer be legally required to charge EU students the same fees as British students (capped at ?9,250 a year in England). EU students will also lose access to the UK¡¯s public loans system.

Some UK universities draw as much as 15?per cent of their total income from EU student fees, with fears that recruitment could be severely hit if fees rise to the levels levied on non-EU overseas students, whose uncapped fees averaged ?16,000 for undergraduates in 2019-20.

While some universities will charge EU students full fees for the 2021-22 academic year, others are weighing up EU fee discounts and whether or not those might expose them to legal challenge.

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Smita Jamdar, head of education at the law firm Shakespeare Martineau, said: ¡°We have had a lot of institutions asking for information about what their options might be. And I think some are probably still deciding exactly what they are going to do.¡±

The University of Leicester that ¡°EU, EEA and Swiss student nationals will not be required to pay increased tuition fees¡±, while Royal Holloway, University of London starting in September 2021 a ¡°fee reduction scholarship which brings your fee into line with the fee paid by UK students¡± for the duration of their course.

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In Scotland, where previously no fees were levied on domestic or EU students, the University of Aberdeen is offering worth up to ?8,000 to EU students starting in 2021.

Ms Jamdar said the legal question was whether differential fees for EU nationals could be deemed a form of race discrimination under the UK¡¯s Equalities Act.

But ¡°in my mind there¡¯s a question over whether ¡®EU national¡¯ really is a nationality-based discrimination¡±, she added. It is possible for individuals to lose all the rights associated with EU membership without any change in their nationality status, as Brexit shows, she pointed out.

If such questions were tested in court, EU fee discounts might be judged ¡°indirect discrimination¡± ¨C which is capable of being justified in certain circumstances under the act ¨C if universities argued that they were offering transitional arrangements on the basis of student domicile rather than nationality to mitigate what would otherwise be a very steep, immediate rise in fees, Ms Jamdar said.

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She suggested that the category of person with the most obvious standing to challenge EU student fee entitlements would be a non-EU foreign student disgruntled at not having their fees discounted in the same way. In the event of a judgment of unjustifiable discrimination requiring a financial remedy, there would be a question over what financial loss such a student would have suffered and whether such a claim would be of any benefit to the student if the university then moved to charging all overseas students higher fees, she added.

For some universities, immediately charging EU students full overseas fees is ¡°potentially going to kill their market¡­they could build up to [that level of fee], but not immediately,¡± said Ms Jamdar. ¡°That¡¯s why I?think some institutions are trying to find a justified, proportionate response to what would otherwise be quite a financial detriment to subject this group of potential students?to.¡±

john.morgan@timeshighereducation.com