Students from Northern Ireland facing £9,000 in annual tuition fees at Scottish universities will benefit if a legal challenge to the policy is successful.
The Scottish government yesterday defended charging the fees to students from the rest of the UK following reports that a human rights lawyer intends to mount a challenge in the courts.
Phil Shiner, of Public Interest Lawyers, is reportedly preparing to argue that the policy breaches discrimination rules under the European Convention on Human Rights, and may also breach the UK Equality Act.
Under EU rules, governments are not allowed to discriminate against students from any other EU state.
Scotland is not an EU state but a region within the UK, and is one of the most popular destinations for students from Northern Ireland.
The Scottish government maintains that EU rules do not apply to different policies within member states.
A Scottish government spokeswoman said: "We are clear that the proposals set out are lawful. Tuition fee arrangements are based on 'ordinary domicile' not nationality.
"In an ideal world, no students would pay fees. Our main priority has to be to protect opportunities for Scottish students to study at Scottish institutions by maintaining free education north of the border.
"With the UK Government introducing tuition fees south of the border of up to £9,000 per annum, Scottish students studying in England will continue to receive financial support in the form of bursaries and loans."
The spokeswoman added that there was no record of any correspondence by Mr Shiner regarding his challenge.
The Scottish government is also trying to find a way to charge students from the rest of the EU.
Liz Smith MSP, Scottish Conservative education spokeswoman, said: "This is further proof of the shambles which is the SNP's policy on higher education funding.
"I am not surprised to hear there will be a legal challenge as there is a clear issue of discrimination against students from the rest of the UK.
"This is grossly unfair to these individuals and a threat to the reputation of our universities.
"It is also likely to distort the admissions process. If Scottish universities have to look to fee-paying students in order to obtain greater income, then it sends a clear message that finance matters more than academic merit."
Northern Ireland remains the only UK region not to have officially set tuition fees for 2012.
Fees here are currently £3,290 but the average in England and Wales next year are set to be £8,666, and in Scotland they will be a maximum of £9,000.
It is understood there will be no increase in tuition fees in Northern Ireland above inflation.