R (on the Application of Sheila Nyoni) v Secretary of State for Business, Innovation and Skills Student Loans Company (Interested Party)
| Jurisdiction | England & Wales |
| Judge | Sir Brian Keith: |
| Judgment Date | 04 December 2015 |
| Neutral Citation | [2015] EWHC 3533 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/4987/2015 |
| Date | 04 December 2015 |
[2015] EWHC 3533 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Sir Brian Keith
Sitting as a High Court Judge
Case No: CO/4987/2015
and
Ms Karon Monaghan QC and Mr David Lawson (instructed by Public Interest Lawyers) for the Claimant
Mr Vikram Sachdeva QC (instructed by the Government Legal Department) for the Defendant
The Interested Party did not appear and was not represented
Hearing date: 10 November 2015
Further representations: 18, 19, 23 and 27 November 2015
Introduction
This case is all about student loans. They are provided by the Secretary of State for Business, Innovation and Skills. To be eligible for such a loan, applicants had to be "settled" in the UK on the first day of the first academic year of their course. In R (on the application of Tigere) v Secretary of State for Business, Innovation and Skills [2015] 1 WLR 3820, the Supreme Court overturned a previous ruling of the Court of Appeal, and held that the requirement for Ms Tigere to be settled in the UK infringed her right under Art 14 of the European Convention on Human Rights ("the Convention") not to be discriminated against on the ground of her immigration status. The Supreme Court did not quash that requirement, but it left it to the Secretary of State to devise a more nuanced requirement which would avoid infringing the Convention rights of applicants in a similar position to Ms Tigere.
The claimant is Sheila Nyoni. Like Ms Tigere, she is not settled in the UK. She applied for a student loan after the Supreme Court's decision in Tigere had been handed down. Before her application had been considered, the Secretary of State issued an interim policy for determining applications for student loans from applicants who were not settled in the UK. He decided that Ms Nyoni was not entitled to a student loan under the interim policy and that there was nothing exceptional about her case. That is the decision which Ms Nyoni now challenges in this claim for judicial review. Her claim has three limbs. First, on a proper interpretation of the interim policy, she is entitled to a student loan. Secondly, if she is not, the interim policy is as unlawful as the original requirement which the Supreme Court held to be unlawful. Thirdly, even if it is not, the Secretary of State's decision not to treat her case as an exceptional one was one which the Secretary of State could not reasonably have reached.
The facts
Ms Nyoni is a citizen of South Africa. She was born on 12 March 1995, so she is now 20 years old. She says that she came to the UK on 26 March 2005 with her brother as dependants of her father, who had arrived here in 2001. There is nothing in the records of the Home Office to confirm the date of her arrival in the UK, but the Secretary of State is content to proceed on the basis of what she claims for the purposes of this case. Her mother joined them in 200Since Ms Nyoni's arrival in the UK, Ms Nyoni has lived in this country and been educated here, and for much of that time (but not for the whole of that time) she has had limited leave to remain here. She has had discretionary leave to remain in this country since 26 July 2011. That discretionary leave will continue until 26 March 2018, and she will be eligible to apply for indefinite leave to remain in the UK from 26 July 2017. It is accepted that because she only has limited leave to remain in the UK for the time being, she cannot be regarded as " settled" for the purpose of the regime governing student loans.
In April 2014, Ms Nyoni accepted the offer of a degree course in international business management at Heriot Watt University commencing in September 201On 29 May 2014 she applied online for a student loan for the first year of the course, the 2014/15 academic year, on the basis that she had been granted humanitarian protection. Her solicitors have said that that was the option she selected on the application form because it was the one which she thought most closely matched her situation. On the other hand, it has been suggested on behalf of the Secretary of State that Ms Nyoni selected that option (even though she must have known that it did not apply to her) because she knew that she was not entitled to a student loan on the basis that she was settled in the UK unless Ms Tigere's claim succeeded. At that stage no decision had been made on it even by the High Court. Indeed, her counsel, Ms Karon Monaghan QC, told me that Ms Nyoni had been following Ms Tigere's case closely as the two of them were friends. It is likely, therefore, that Ms Nyoni knew that no decision had yet been made on Ms Tigere's claim. However, by the time Ms Nyoni's course started, the High Court had allowed Ms Tigere's claim and the Court of Appeal had overturned the judgment of the High Court. That is why Mr Vikram Sachdeva QC on behalf of the Secretary of State asserted that Ms Nyoni started her course at a time when she knew that her only chance of being able to complete the course which she had been offered was if her parents were able to fund her tuition fees and living expenses or if the requirement that she be settled in the UK was eventually ruled unlawful by the Supreme Court. She was therefore taking a risk in starting her course at a time when she would have realised that her only chance of getting public funding depended on success for Ms Tigere in the Supreme Court. It might be said that that was a risk worth taking. The worst case scenario was that Ms Tigere's appeal to the Supreme Court was dismissed, and Ms Nyoni had to give up her course after a while, whereas if Ms Tigere's appeal succeeded, there was every chance that Ms Nyoni would get funding for the whole — or at least the majority — of her course.
Ms Nyoni was requested to provide more information about her status. She did so on 10 August 2015, and unsurprisingly her application was refused by a letter dated 14 August 2015 — correctly since she had not been granted humanitarian protection. By then, of course, the 2014/15 academic year was coming to an end, and Ms Nyoni had had to fund her tuition fees (which amounted to £9,000 a year) and her living expenses. A bursary of £2,250 had reduced the tuition fees she had had to pay to £6,750, and her parents were to pay £3,000 towards those fees on 24 August 2015, but by the beginning of the 2015/16 academic year Ms Nyoni still owed £3,750 for the fees for the 2014/15 academic year. It is said that in order to support Ms Nyoni during that year, her parents had had to borrow some money from one of Ms Nyoni's cousins as well as using their own savings, that her mother had had to work overtime, and that Ms Nyoni had had to work herself during her gap year. That is said to show her commitment and that of her family to her getting her degree, as was the fact that she had done well in the first year of her course.
On 16 August 2015, a couple of days after her application for a student loan for the 2014/15 academic year had been rejected, Ms Nyoni applied online for a student loan for the 2015/16 academic year. There is no evidence about the basis on which she made that application, but by then the Supreme Court had handed down its judgment in Tigere (it had been handed down on 29 July 2015), and Ms Nyoni was presumably anticipating that the new requirements for eligibility for a student loan which the Secretary of State would be devising to render them Convention-compliant would make her eligible for a student loan. Accordingly, on 28 August 2015, Ms Nyoni's solicitors (who had also represented Ms Tigere) wrote to the Student Loans Company which administered the student loan scheme for the Secretary of State, pointing out that Ms Nyoni's personal circumstances were "very similar" to those of Ms Tigere, and that such differences as there were between their personal circumstances were such that they could have "no effect on the general principles" which could be derived from the Supreme Court's decision in Tigere. They were saying, in effect, that if the denial of a student loan to Ms Tigere had been unlawful, so too would the refusal of a student loan to Ms Nyoni. They asked for confirmation that Ms Nyoni was now entitled to a student loan for all four years of her course, including the 2014/15 academic year. When they did not get a substantive response to that request, they threatened legal action.
As I have said, on 16 September 2015, the Secretary of State issued an interim policy for determining applications for student loans from students who were not settled in the UK, and it was after that that the Government Legal Department informed Ms Nyoni's solicitors on 18 September 2015 that she was not entitled to a student loan under it, nor would she be given a student loan on an exceptional basis. Her solicitors wrote to the Government Legal Department on 22 September 2015 challenging the Secretary of State's interpretation of the interim policy, as well as his view that Ms Nyoni's case was not exceptional, but by its letter of 1 October 2015, the Government Legal Department informed Ms Nyoni's solicitors that the Secretary of State maintained his view. This claim for judicial review was commenced very promptly — on 14 October 2015 — and permission to proceed with the claim was given by Goss J without waiting for the Secretary of State's summary grounds for resisting the claim. He ordered an expedited hearing of the...
To continue reading
Request your trial