R Beaurish Tigere v Secretary of State for Business, Innovation & Skills Student Loans Company Ltd (Interested Party)

JurisdictionEngland & Wales
JudgeMr Justice Hayden
Judgment Date17 July 2014
Neutral Citation[2014] EWHC 2452 (Admin)
Docket NumberCase No: CO/7850/2013
CourtQueen's Bench Division (Administrative Court)
Date17 July 2014

2014 EWHC 2452 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

Mr Justice Hayden

Case No: CO/7850/2013

Between:
The Queen on the Application of Beaurish Tigere
claimant
and
Secretary of State for Business, Innovation & Skills
Defendant
Student Loans Company Ltd
Interested Party

Ms Helen Mountfield QC & Mr Raj Desai (instructed by Public Interest Lawyers) for the Claimant

Mr Steven Kovats QC & Mr Vikram Sachdeva (instructed by Treasury Solicitors) for the Defendant

Hearing dates: 2 nd, 3 rd & 4 th July 2014

Mr Justice Hayden
1

This claim concerns a challenge to the exclusion of the Claimant from eligibility for a student loan.

2

The Claimant is a Zambian national who having been born on the 29 th August 1985, is now 18 years old. She was brought into the United Kingdom by her parents when she was 6 years old, legally entering as a dependent of her father on his student visa. She has lived in the United Kingdom with her mother ever since, in effect for the majority of her life. Her entire education has been through the English system. The Claimant's father left the United Kingdom in early 2003 and has played no active part in her upbringing. Those bald facts indicate a challenging start to life but they have been overcome. The Claimant has worked extremely hard and been very successful at school.

3

In her senior school Burnhome Community College she was Head Girl and obtained 7 GCSE's and 4 A-levels, (A) business information and communications; (A star) technology; and (C) media. She is not only hard working, she is plainly ambitious and has great plans for her future. I have no doubt that these have been encouraged and re-enforced by her mother who has been present at court with her during the course of this hearing.

4

In pursuance of her goals the Claimant applied in January 2013 through the central UCAS application process to read for a degree in International Business Management. Her applications were predictably well received and offers came in from the universities of her choice and in particular her first choice Northumbria University. The fees for this course were broadly representative of equivalent courses at other institutions.

5

The Claimant and her mother had been granted temporary admission under Schedule 2, Paragraph 21 of the Immigration Act 1971 on the 6 th September 2010. They were granted 3 years discretionary leave to remain ('DLR') on the 30 th January 2012. According to the present published policy of the Home Office the Claimant will have the option to apply for a further 3 year period of DLR in 2015 and in consequence of that the option to apply for indefinite leave to remain ('ILR') also known as 'settlement', in 2018.

6

Though the Claimant brought into the country legally by her parents the Claimant's mother had overstayed her leave following the father's return to Zambia and did not regularise her daughter's immigration status until September 2010. Inevitably therefore the Claimant's current immigration status is entirely the consequence of her mother's own decision to over stay and subsequent delay in regularising the Claimant's position.

7

Along with her school cohort the Claimant applied in April 2013 for a student loan. The position as I understand it is that all higher education placements in the United Kingdom make offers to candidates conditional upon payment of fees on an 'up front' basis and in instalments. The system operates on the premise that eligible students have access to state guaranteed loans to meet these fees which they repay later during the course of their working lives. They are plainly far more advantageous to the student than any commercial comparator. I say, at once, that I am perfectly satisfied that outside the loan scheme there is no other realistic option for this Claimant. In her statement in these proceedings dated 23 rd June 2013 she states

"I have no money myself to pay the amount required for fees. The only other person who offers me financial support is my mother. My mother is a support worker and earns between £100 and £220 per week. The amount she earns depends upon how many hours she is able to work that week. With her income, she supports not just me but also her sister and her two children who also live with us and are not employed. My mother is therefore supporting five people on a very small wage. She is not in a position to provide me with money for university fees.

I have been asked if it would be possible for my mother to take out a loan from a bank. I do not think my mother earns enough money to be able to get and make payments on a loan. Nor do I want to put her under pressure to do so."

8

The Claimant only became aware there was any difficulty with her eligibility for a student loan after making an online application towards the end of April 2013. In her statement she described how she visited the Student Finance England website and responded to the tick box formula. Confronting the question directly as to when she first became aware of a problem with her being able to secure a student loan she states as follows

"It was after the time when I did this online application. When there were lots of questions about my immigration status in the application and the requests for further information, my mother and I became confused about what the problem was and so contacted a friend of ours who worked with migrants and asylum seekers in the York area. She did some research and told us she thought I might not get a loan because of my immigration status. She then arranged for us to be put in touch with my current solicitor. I met with him for the first time on 20 May 2013 and he confirmed that it was likely I would be refused a loan due to my immigration status."

9

Although judicial review is overwhelmingly concerned with the law and not the merits of the particular case it is impossible not to note that this Claimant's work ethic courses through her veins. Notwithstanding the considerable obstacles put in her path by the adverse decision on eligibility for the student loan scheme she and her mother were determined that she should attend university if that was at all possible. The Claimant therefore applied through the UCAS 'clearing process' for places at local universities which she could attend whilst living at home. She accepted a place to study International Business Management at the University of Hull and was able to pay the first tuition fee instalment. That was achieved through a combination of her mother maximising her own working hours and taking a better paid job albeit far from the family home along with the Claimant obtaining a student overdraft facility. That arrangement foundered as it became clear the Claimant could not manage the ongoing costs associated with travelling to the University for lectures four times a week. With reluctance she was compelled to withdraw from the course, in fact potentially forfeiting the tuition fee payment and leaving her overdrawn on her student account. She is presently working part time at a supermarket.

Procedural History

10

For convenience I have cross fertilised the chronologies as prepared by both legal teams. What is perhaps most important to note is the impact on this case of the decision Burnett J in R (Kebede & another) v Secretary State of Business, Innovation and Skills [2013] EWHC 2396 (Admin). Its immediate consequence has been unavoidably to cause delay in the hearing of this claim. It is doubtless the case that had Kebede proceeded to appeal, as contemplated, some of the key issues that fall to be considered by me would have by now been authoritatively resolved. The decision to delay the hearing pending the outcome of that appeal was inevitable. I note too that Burnett J refused an application for a joint hearing (with this case) in part due to his view that the facts and issues in the respective claims are not identical. However, he plainly felt that there was sufficient overlap between the Kebede decision and this case to express the view in his order 31 st July 2013 that

"in the light of my conclusion in Kebede (if they survive the scrutiny of the Court of Appeal) this claim (Tigere) is unarguable."

11

I am told in submission by Ms Mountfield QC and Mr Desai on behalf of the Claimant that Burnett J having dismissed the JR application in Kebede granted permission to the Court of Appeal both on the grounds of 'a real prospect of success' and because of 'wider public importance of issues'. Against this back drop an appeal from my decision seems inevitable as both Counsel have indicated. Conscious of the delay that has already occurred and the impact on the Claimant from the delay in terms of her ambition to go to University in the next academic term I have liaised with the Court of Appeal office and fortunately they have been able to secure a hearing of this appeal by the 28th July. The case plainly raises an important point. Like Mr Justice Burnett almost exactly 12 months earlier therefore I find myself constrained to deliver this judgment expeditiously.

12

The background is as follows:

III. Summary of procedural history

The Student Loan Scheme

2001–2003

C arrived in UK with her parents and was granted leave as a dependent of her student father, the leave expiring in early 2003 and her father returning to Zambia, C and her mother remaining here as overstayers.

6 th September 2010

UKBA served on C and her mother notice that they are liable to removal from the UK, and granted them temporary admission.

30 th January 2012

C is granted discretionary...

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2 cases
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