Students without indefinite leave to remain are ineligible for student loans

R (on the application of Tigere) v Secretary of State for Business, Innovation and Skills [2014] EWCA Civ 1216 (31 July 2014) - read judgment

The United Kingdom was not in breach of the human rights of those individuals ineligible for student loans because they did not have indefinite leave to remain in the country. The relevant legislation limits eligibility for student loans to those who are “settled” in the United Kingdom (within the meaning of the Immigration Act 1971 ) and who have been ordinarily resident in the UK for three years. According to the Court of Appeal, requiring the Secretary of State to link criteria for educational  eligibility to changes in immigration rules would “enmesh” him into immigration policy:

His picking and choosing candidates for settlement as eligible for student loans, while not … unconstitutional, would be a fragile and arbitrary basis for policy in an area where clarity and certainty are required.

This appeal turned on  issues in relation to the right to education under Article 2 of the first protocol (A2P1) and the prohibition of discriminatory treatment under Article 14 of the European Convention on Human Rights.

Background

The claimant, a Zambian national, had been resident in the UK since the age of 6. However, after her father left the country in early 2003 when his leave expired, the claimant and her mother remained, unlawfully overstaying their leave. In September 2010 the UKBA served notice that they were liable to removal from the United Kingdom. Thereafter they were granted temporary admission, and on 13 January 2012, they were granted discretionary leave to remain (DLR) until 29 January 2015.

The problem is that DLR does not satisfy the conditions of eligibility for student loans under the Education (Student Support) Regulations 2011. There are eight categories of persons who were eligible for student loans. Seven of these categories comprise persons having rights or a status under EU law or associated rights. The remaining category consists of persons who are settled in the UK and who had been ordinarily resident in the UK throughout the three-year period preceding the first day of the academic year of the relevant course. “Settled” meant a person who was ordinarily resident here without being subject under the immigration laws to any restriction on the period for which he could remain.

The issue before the Court was whether the blanket exclusion from eligibility predicated entirely on the claimant’s leave to remain was a disproportionate interference with her right of access to education A2P1 and whether it had the effect of unjustifiable discrimination against her on the ground of her immigration status under Article 14.

The Court upheld the Secretary of State’s appeal against the finding below that the claimant’s rights had been breached.

The Court’s reasoning

Laws LJ, giving judgment, noted that the Secretary of State had accepted that eligibility for financial support for higher education fell within the scope or ambit of A2P1. It was also common ground “that the objective of husbanding limited funds to afford priority for individuals who are likely to remain in the UK in order to complete their education and benefit the UK economy is a legitimate aim.” Moreover,

no one contends that A2P1 requires the state to provide available funding to every successful candidate for higher education who needs it, whatever his or her immigration status. I note in that connection the funding decision in Belgian Linguistic Case (No. 2) [1968] 1 EHRR 252 at 280 to 281

The issue was therefore essentially one of proportionality. This was a case in which the legal challenge was directed at a “national strategic policy for the distribution of scarce resources in a field of great social importance”. The secretary of state had been justified in promulgating a bright-line rule. Further, that rule had been lawfully set.

this is surely an area in which everyone, especially the affected student or students, needs to know where they are and, in the nature of things, to know it within what may be a relatively short timescale. The court cannot commit the system of student loans to the emergency of nice arguments about the impact of the ECHR case by case. The objection is not merely that such a system would be expensive and effectively unworkable…

The real difficulty is that such a system would be uncertain and arbitrary. Some cases would be preferred over others on marginal grounds. Delays would occasion real hardship. Loss of confidence and even disrepute would, in consequence, dog the regime. (paras 27 – 28)

It was significant that the Education Act 1944 s.1(1) imposed on the Minister of Education a duty “to promote the education of the people of England and Wales”. That provision was replicated in the Education Act 1996 s.10. The phrase “the people of England and Wales” was not defined, but it provided a legitimate steer for the policy relating to student funding.

The relation between the government responsibilities setting immigration policy through the Immigration Rules and setting student funding policy by statutory instrument was at the centre of the case. The Secretary of State was entitled to adopt a criterion dependent on settlement and was not required to modify it by reference to the fact that the Home Office may alter the immigration rules by which settlement is achieved from time to time.

This approach serves the need of certainty and the avoidance of an arbitrary rule. If the Secretary of State is responsible for the education loan scheme and is required to uncouple the Rules he promulgates from the straightforward criterion of settlement, he is launched on a sea of arbitrary choices.

Vos LJ added his observation that the secretary of state had to ensure that the applicable regulations operated properly in the context of immigration policy. While he could not be expected to make frequent adjustments to the regulations as the Immigration Rules changed, he had to review the situation periodically to ensure that, for example, the requirement of “settlement” remained appropriate in the light of the way the immigration processes operated. What saved the eligibility requirements in the 2011 Regulations was the fact that there had at all relevant times been a discretion to grant indefinite leave to remain to children on the grounds set out in Section 55 of the Borders, Citizenship and Immigration Act 2009.
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