Scottish legal academics have welcomed the prospect of a court ruling on whether it is discriminatory for English, Welsh and Northern Irish students to pay fees in Scottish institutions, while Scottish students are exempt.
Jack Rabinowicz, a partner at Teacher Stern Selby and an education law specialist, is preparing a Legal Aid case challenging the Scottish Executive's policy. He is acting on behalf of Emma Block, a Glasgow University student from England.
Mr Rabinowicz is taking advice from both English and Scottish counsel on whether the challenge should be mounted in London or Edinburgh. He said:
"We should be able to issue proceedings during February."
The executive is attempting to pass legislation that would allow universities to charge premium rates for courses at risk of being swamped by "fee refugees" from south of the border.
Mr Rabinowicz said the case would focus on the current situation but would allow for "at least one weather eye on the future".
He will invoke the Race Relations Act and the European Convention on Human Rights. He will also challenge the executive's view that equal treatment under European law means there can be discrimination within but not between member states. Students from other European Union countries are exempt from fees alongside Scots, but English and Welsh students will have to pay.
An executive spokesperson said: "We have carefully considered this and are satisfied that there are no discrimination issues in free tuition for eligible Scottish students. Our understanding is that EU rules apply to member states and do not prevent different regulations concerning tuition fees being in force within the UK."
But Tom McDonnell of Glasgow Caledonian University's division of law said the amended Race Relations Act covered national origin, which could apply to discrimination between English and Scots.
"This is something that should go before the courts and be for the courts to clarify," he said.