Some English universities are exploring whether they could continue to charge European Union students lower fees despite Brexit, as the government keeps under wraps a report on how changes to funding for these learners could impact sector finances.

Until now, it has been widely assumed that students from the EU would move on to international fee status once the UK¡¯s departure from the bloc was complete. Reports last year indicated that the government could withdraw EU students¡¯ home fee status and access to public student loans from 2021-22 onwards.

However, Times Higher Education can reveal that a number of English universities are exploring whether they can find a legal justification to continue offering EU students the same ?9,250 fees as domestic students, amid fears that recruitment could suffer if fees were increased to the levels of those for non-EU overseas students. The average fee for non-EU overseas undergraduates at UK universities ¨C not subject to any cap ¨C was ?16,000 in 2019-20.

A University of Warwick spokesman said the institution has ¡°not made any decision on 2021-22 yet, but we are looking at the options to help us to continue to welcome EU students to Warwick¡±, confirming that it has taken legal advice on fee levels.

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Minutes from a recent meeting of the University of Sheffield¡¯s executive board say the institution is ¡°currently planning future recruitment strategy on two scenarios for the fee status of EU students from 2021-22 onwards¡±, although the university declined to add any further details.

With some universities drawing as much as 15?per cent of their total income from EU student fees, and these students viewed as an important element in creating international environments on campuses, the absence of clarity from the government for EU students starting courses from 2021 onwards is a pressing issue for the sector.

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Smita Jamdar, head of education at Shakespeare Martineau, said the law firm had explored with several client universities the question ¡°would you have to charge EU students overseas fees after Brexit?¡±

If universities were to identify students by EU nationalities and grant them access to the lower fee regime, that ¡°would clearly run the risk of being discriminatory¡± under the UK¡¯s Equality Act, she explained. But ¡°residency is not a protected characteristic¡± under that legislation, Ms Jamdar continued, raising the possibility that universities could grant students access to lower fees on the basis of EU residency.

Universities would then need to demonstrate a ¡°legal justification¡± to avoid claims of indirect discrimination, Ms Jamdar said.

Stressing that these legal questions remain untested, she added: ¡°For institutions who are able to identify a particular business driver that says they need to maintain close relationships with European institutions and European countries ¨C provided you were trying to apply the residence criteria in a fair way, you weren¡¯t indirectly bringing in nationality, we think you might be able to do that.¡±

É«ºÐÖ±²¥ understands that the Department for Education commissioned a report from consultants London Economics on the potential impact of Brexit on EU student demand at UK universities, originally scheduled for publication in April 2019. However, that report is yet to be published.

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The report is said to offer a similar analysis to one compiled by London Economics for the Higher Education Policy Institute in 2017, which found that raising EU student fees to the level currently charged to non-EU overseas students and removing access to fee loans could reduce enrolment from EU nations by 30,000, representing a 57?per cent decline at that time.

It also found that while the universities of Cambridge and Oxford could gain about ?10?million a year in fee income, some less prestigious institutions could lose about ?100,000 a year through reduced student numbers.

Universities UK¡¯s board agreed at a meeting on 31?January that it would press the government to extend the fees and funding status quo for EU students to those starting courses in 2021, as the recruitment cycle was already under way.

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Vivienne Stern, director of UUK International, said that ¡°even if [a?visa] system were to be in place by then, it would be too late to communicate the change to EU students ¨C who will be making decisions about where to study now¡±.

Some in the sector are still hopeful that the UK government could be pressed to offer long-term continued access to loans and a lower fee cap as part of a mutual UK-EU student exchange agreement within a wider trade deal.

MillionPlus, the association of modern universities, has previously called for such an agreement. Greg Walker, MillionPlus chief executive, said: ¡°At a time when the UK has set itself the ambition of growing overseas student numbers substantially, any actions that cause a steep decline in numbers would be concerning.¡±

A DfE spokeswoman said the London Economics research ¡°will be published in due course¡±.

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She added: ¡°Applications for courses starting in academic year 2021-22 do not open until September 2020. We will provide sufficient notice for prospective EU students on fee arrangements ahead of the 2021-22 academic year and subsequent years in future.¡±

john.morgan@timeshighereducation.com