UK - R (on the application of Tigere) v Secretary of State for Business, Innovation and Skills 2015, 29 July 2015

Facts:

T was Zambian, born in 1995. She came to the UK with her parents in 2001. Her father had a student visa and she and her mother came with him, lawfully, as his dependants. Her father left the UK in 2003, but she and her mother stayed on after their visas had expired. She had been educated in the UK and had excelled enough to be offered a university place for which she would need a student loan. Her mother, unbeknownst to T, had not regularised their immigration status since the father left.

T has had discretionary leave to remain since 30 January 2012. However, T was denied a public student loan in 2013. T did not meet criterion (c) (see abstract) because her residence had not been "lawful". She did not meet criterion (a) because "settlement" for the purposes of the immigration legislation was defined in terms of indefinite (not discretionary) leave to remain. The issue was whether criteria (a) and (c) breached T's right to education or unjustifiably discriminated against her in the enjoyment of that right.

She has unconditional offers from 5 universities, despite having had to start and prematurely end three other courses of higher education due to being denied a public student loan. 

Decision & reasoning:

In the order the issues were dealt with in the judgment:

(1) Criterion (c), lawful residence for 3 years prior to the start of the course, was compatible with T's right to education and to not be discriminated against unjustifiably in accessing education. There are strong public policy reasons for stipulating a period of ordinary residence before becoming entitled to public services. Further, if the requirement were to be relaxed for people in T's position, it would also have to be relaxed for all the other categories of persons eligible for student loans to whom the requirement of three years' ordinary residence applied; people just as likely as T to be the victims of their parents' decisions rather than their own. The administrative burden involved in making the moral judgments required would be intolerable.

(2) As to (a), being settled in the UK, this criterion was in breach of T’s Convention rights, specifically Article 14 read with Article 2 Protocol 1. That said, it should not be quashed entirely as it may sometimes be compatible with those rights. Instead, a declaration of incompatibility in this case is appropriate. The claim is ultimately based on unjustified discrimination, as the right to education does not itself oblige countries to provide or fund tertiary education. In this case, T had lived the majority of her life in the UK, passed through secondary and primary education, and had been treated as a member of UK society; the only chance of removal would have been grave misconduct. All of this amounts to being settled, in ordinary language – so while the settlement rule was a good rule of thumb for identifying those who definitely should be eligible for student loans, it did not cater for people like T who clearly were settled, just not by the legislation’s definition. While the aim of the settlement rule is legitimate (i.e. ensuring that the loans are targeted to people more likely to pay them back), it does not fulfil that aim, excluding those who meet the criteria which the aim is designed to include, thereby creating discrimination outside the legitimate range of administrative decisions available to the Secretary of State (i.e. unjustified discrimination).

It would be for the Secretary of State to draft a clear and simple rule that includes T’s cohort, namely extending the eligibility on the basis of long (although not necessarily lawful) residence. A template for use could be that included in Immigration Rule 276ADE(1). It would not have to be an elastic “exceptional case” discretion in order to be rights-compliant.

Lady Hale, Lord Kerr and Lord Hughes were all in favour of the above.

Lord Sumption and Lord Reed dissented.

Outcome:

Appeal allowed in part.

Observations/comments:

This case summary was written by Ben Wild, a trainee solicitor with an MA in International Law from UN University for Peace in Costa Rica.

Other sources:

Higher education: student loans Ed. L.M. 2016, Feb, 7-9

Allocation of housing and reservations for "working households" and "model tenants" H.L.M. 2016, May, 4-12

Public law in the Supreme Court 2014-2015 J.R. 2016, 21(1), 1-30

Education: recent developments Legal Action 2016, Apr, 35-37

Higher education: immigration controls and student loan entitlement Ed. L.M. 2015, Aug/Sep, 8-10

Student loans: human rights Ed. Law 2015, 16(4), 272-276

Education - higher education - student loans H.R.U. 2015, 150(Sep), 14-15

A right to a student loan? L.G.L. 2015, Aug 7, Internet

Human rights P.L. 2015, Oct, 690-693

Government policy on student loans unlawful S.J. 2015, 159(30), 9

De Smith's Judicial Review 7th Ed. Second Supplement: Chapter 9 - Procedural Fairness: Fettering of Discretion: Section 2. - Fettering of Discretion by Self-Created Rules or Policy

De Smith's Judicial Review 7th Ed. Second Supplement: Chapter 13 - Convention Rights as Grounds for Judicial Review: Section 4. - The Human Rights Act 1998

Dicey, Morris & Collins 15th Ed. Third Cumulative Supplement: Chapter 6 - Domicile and Residence: Section 3. – Residence