I am aware that many UK PhD studentships are only open to UK/EU applicants (question 1, question 2). In my understanding, they cannot (pre-Brexit) legally discriminate between EU and UK applicants, but they can bar non-EU applicants. But my eyes fell upon eligibility requirements for this University of Newcastle PhD studentship, emphasis and link mine, which effectively bars EU applicants, too:

This studentship is available to UK applicants and EU applicants with settled status in the UK, meaning they have no restrictions on how long they can stay. All eligible applicants must also have been ‘ordinarily resident’ in the UK for 3 years prior to the start of the studentship, and not been residing in the UK wholly or mainly for the purpose of full-time education.

Such an additional requirement effectively discriminates between UK and EU applicants. The vast majority of EU applicants will not have been also resident in the UK for 3 years prior to the start of the studentship, or if they have, have been so for the purposes of education. Even some UK citizens will be ineligible if they spent any time studying abroad.

Is such discrimination between UK and EU applicants legal under EU law? It would appear to effectively amount to the same as stating "Europeans need not apply" by different means.

  • Good question. I think this requirement dates least as far back as 1995. As far as I recall an EU national would qualify for a 'fees only' studentship but no maintenance grant unless they were ordinarily resident in the UK. – Shane O Rourke May 1 '18 at 11:11
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    Note that whether or not you consider it discrimination, it's the funding body and not the university that's to blame. Your quote doesn't appear at the UCL link you give, but similar wording appears in the second paragraph under "UK/EU candidates". The very next paragraph starts "If you are from the EU but do not meet residency requirements, your fees are still set at the EU/UK rate, but you do not qualify for full STFC support. We normally have a limited number of departmental (non-STFC) studentships that will pay both EU/UK fees and maintenance. " – Chris H May 1 '18 at 14:45
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    Yes they can. They do. Before Brexit those grant existed. They dont discriminate the acceptance, its the funding that can get limited. In the same way that Marie Courie PhD fellowship (EU funded) do this, you can not have lived in the country in the last 3 years to get them. – Ander Biguri May 1 '18 at 14:51
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    @gerrit that one isn't so clear, but I think the same applies -- the funding body (a UK government agency) makes the rules. And employment legislation doesn't apply to studentships, making everything very confusing. In this case (unlike the previous UCL link) the studentship is part of a funded project so departmental funding can't be used instead for non-eligible students. – Chris H May 1 '18 at 15:31
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    @ChrisH It is confusing. Which is why I asked the question. I had not seen this before. – gerrit May 1 '18 at 15:35

You have answered your own question in the question: states can (under EU law) put conditions on, e.g., funding, based on residence, but not based on citizenship. As UK citizens who are not ordinarily resident would not be eligible for this funding, this does not discriminate on citizenship, so this is legal (*).

Anecdotally, in my experience a low single-digit percentage of "UK" applicants fail the ordinarily resident test, and I have seen at my institution roughly 5 students over the past 10 years refused funding from similar sources for this reason.

(*) I am definitely not a lawyer: the case law around ordinarily resident status shows that this issue is not unique to universities.

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    Neither your answer nor (contrary to what you said) the question offer any evidence that discrimination based on place of residence is actually legal. I agree with OP that this certainly appears to be de facto discrimination against EU citizens. In fact, it’s eerily similar to Trump’s embarrassingly transparent disguise for his “Muslim ban”. I’d love to see some actual evidence for the legality. – Konrad Rudolph May 1 '18 at 14:35
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    Discrimination laws generally restrict policies that have a disparate impact on a protected class, even if they do not explicitly discriminate. A policy against headscarves, for instance, would generally be considered discrimination against Muslims, even if Christians were also prohibited from wearing them. – Acccumulation May 1 '18 at 15:39
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    The problem in this case in determining if it's legal is that it's a UK government body which is discriminating, and it's backed up by UK legislation (legislation.gov.uk/uksi/2007/779/regulation/6/made). Is this law compatible with EU law? To my non legally trained eye it seems pretty shaky, but as far as I can tell, it's not been challenged in the decade since it was introduced, and the UK government obviously believes it to be legal. – MJeffryes May 1 '18 at 15:45
  • @Acccumulation Bad phrasing on my part: yes, this isn’t discrimination in that sense (“discrimination” legally only applies to certain characteristics). But it still seems to make illegal distinctions between EU and UK applicants in the sense of this question (at least in the spirit of the law, but potentially not in enforceably). – Konrad Rudolph May 1 '18 at 16:58

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