New Judgment: R (Tigere) v Secretary of State for Business, Innovations and Skills  UKSC 57
29 Wednesday Jul 2015
On appeal from:  EWCA Civ 1216
In order to qualify for a loan from the Government to help with University fees a student must be settled in the United Kingdom, and have been lawfully resident on the first day of the course. The Appellant, who has discretionary leave to remain (“DLR”), does not meet these criteria. She challenged the decision to refuse her a student loan on the basis that it breached her right to education, under A2P1 of the ECHR, or unjustifiably discriminated against her in the enjoyment of that right on the grounds of her immigration status.
The appellant came to the UK with her parents in 2001 lawfully as a dependant of her father. The appellant overstayed after the expiry of her visa, but obtained DLR in 2012. She is highly likely to obtain indefinite leave to remain (and thus settled status, and eligibility for a student loan, in 2018).
Giving the leading majority judgment Lady Hale stated that, following the well-established justification test, the criterion had to be considered in light of whether it has a legitimate aim to which it was rationally connected, and whether there was no less intrusive measure that could have been used instead after a fair balance had been struck between the rights of the individuals concerned and the interests of the community. Lady Hale concluded that the application of the settlement rule to the appellant could not be justified and was incompatible with her convention rights because, although it may be legitimate to target resources on those students who are likely to stay in the UK to complete their education and contribute to the economy afterwards, the criterion had not struck a fair balance between the rights of the individual and the community and it could not be said that no less intrusive measure could have been used instead. She stated that the harm caused to both the individuals concerned and the community as a whole cannot be outweighed by the administrative benefits of the bright line rule, particularly as the savings for the government will only be short term as most of them will eventually qualify for loans whilst in the meantime the benefit of their enhanced qualifications to the exchequer and the economy will be lost. She reasoned that individuals between 18 and 25 who have spent half their lives living continuously in the UK might reasonably be added to exceptional cases discretionary given the comparatively small number involved.
In relation to the criterion requiring three years’ ordinary residence, Lord Hale ruled that there was ample justification and strong public policy reasons for the rule insisting that a period is required before a person becomes entitled to public services. She stated that if the requirement were more relaxed for the appellant it would also have to be relaxed for all the other categories of persons eligible for student loans whom the requirement applies. The administrative burden involved in making the moral judgment would be intolerable.
Lord Hale stated the appellant was clearly entitled to a declaration that the application of the settlement criterion breached her rights under art 14 and A2P1 of the convention. This would leave the department in no doubt that the appellant was entitled to a student loan and leave it open to the Secretary of State to devise a more carefully tailored criterion which will avoid breaching the convention rights of other applicants.
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