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supremecourt_1494675cIn R (Tigere) v Secretary of State for Business Innovation and Skills [2015] UKSC 57 the Supreme Court held, by a 3:2 majority, that the blanket requirement that all applicants for a student loan have “indefinite leave to remain” is discriminatory.

Background

The appellant came to the UK with her parents lawfully as a young child in 2001, as a dependant of her father. She overstayed (with her mother) after the expiry of her visa. The appellant completed all of her primary and secondary education in the United Kingdom, was head girl of her secondary school and obtained 7 GCSEs and the equivalent of 3 A levels at grades A*, A and C. She received a number of offers to attend university. The appellant obtained discretionary leave to remain (“DLR”) in 2012 and is highly likely to obtain indefinite leave to remain in 2018. However, she was treated as ineligible for a student loan because she did not have ‘settled’ immigration status.

In order to qualify for a student loan from the Government to cover University fees and maintenance under the relevant regulations, an applicant must both: be settled in the United Kingdom, and have been ordinarily resident throughout the three year period prior to the first day of the course. The appellant, who had only DLR, did not meet these criteria. She challenged the application of the criteria to a person (such as her) who had a clearly established private life right to remain in the UK. On that basis she argued that they breached her right to education, under Article 2 of Protocol 1 of the ECHR, and unjustifiably discriminated against her in the enjoyment of that right on the grounds of her immigration status, contrary to ECHR, art 14.

The High Court found that the blanket exclusion from eligibility for student loans based on the appellant’s immigration status was a disproportionate interference with her right of access to education under A2P1 and unjustifiable discrimination linked to national origin contrary to article 14. The Court of Appeal allowed the Secretary of State’s appeal on the basis that this was an area of national strategic policy related to the distribution of scarce resources, and so a broad margin of appreciation should be afforded to government policy. The appellant appealed to the Supreme Court.

Supreme Court judgment

Giving the leading majority judgment, Lady Hale applied the familiar four-stage domestic proportionality test to the two criteria and not the ‘manifestly without reasonable foundation’ test. She concluded that the application of the settlement criterion to the appellant could not be justified because, although it may be legitimate to target resources on those students who were likely to stay in the UK to complete their education and contribute to the economy afterwards, the settlement criterion was not rationally linked to that aim. It 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. Higher education benefited both individuals and the community, and the harm caused to both the individuals concerned and the community as a whole by application of the exclusion could not be outweighed by the administrative benefits of a bright line rule. In particular, the savings for the government would only be short term, as most young people like the appellant would eventually qualify for loans – whilst in the meantime the benefit of their enhanced qualifications to the Exchequer and the economy would be lost. She reasoned that an exception, such as for individuals aged between 18 and 25 who had spent half their lives living continuously in the UK (based on the para. 276ADE(v) of the Immigration Rules, on the grant of leave based on private life), might reasonably be added or an exceptional cases discretion created given the comparatively small numbers likely to be eligible under the exception.

In relation to the criterion requiring three years’ ordinary residence, however, Lady Hale ruled that there was ample justification and strong public policy reasons for the rule that a period of lawful residence is required before a person becomes entitled to public services, and this did not impose the same detriment on the Appellant as the settlement requirement. Lady Hale said 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.

Lady Hale held that 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.

Lord Kerr agreed with Lady Hale, Lord Hughes upheld the appeal on slightly different reasons (see paras 50–68). Lord Sumption and Lord Reed gave a joint dissenting judgment

Comment

Those who have previously been held to be ineligible simply because they have the wrong type of lawful residence are caught by the judgment. The decision will therefore benefit many other young people like the appellant who have been living in the UK since a young age. It is also of wider legal interest in holding both that the right to education is special such that the blunt instrument “manifestly without reasonable foundation” justification test applicable to discrimination in the provision of other services provided by the state does not apply; and that it was not enough that a bright-line rule can be justified but that the Government must justify as proportionate the particular bright-line rule adopted.

The ruling will also have an impact on the circumstances in which higher educational institutions are required to exercise their discretion to charge lower home fees rates to students.