R Tigere v Secretary of State for Business, Innovation and Skills
| Jurisdiction | England & Wales |
| Judge | Lord Justice Laws,Lord Justice Floyd,Lord Justice Vos |
| Judgment Date | 31 July 2014 |
| Neutral Citation | [2014] EWCA Civ 1216 |
| Docket Number | Case No. C1/2014/2412 & C1/2014/2415 |
| Court | Court of Appeal (Civil Division) |
| Date | 31 July 2014 |
[2014] EWCA Civ 1216
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
(MR JUSTICE HAYDEN)
Royal Courts of Justice
Strand
London, WC2A 2LL
Lord Justice Laws
Lord Justice Floyd
Lord Justice Vos
Case No. C1/2014/2412 & C1/2014/2415
Ms H Mountfield, QC and Mr R Desai (instructed by Public Interest Lawyers) appeared on behalf of the Appellant
Mr S Kovats, QC and Mr V Sachdeva (instructed by Treasury Solicitors) appeared on behalf of the Respondent
This is an appeal with permission granted by the judge below brought by the Secretary of State against the decision of Hayden J in the Administrative Court on 17 July 2014 ( [EWHC] Admin 2452) on grounds one and two of the judicial review claim before him. The Claimant in the case cross appeals also against his decision on ground four.
The claim arises out of the effective refusal of a student loan to the Claimant, who is a Zambian national born on 29 August 1995, on the ground that she was not an "eligible student" within the meaning of the Education (Student Support) Regulations 2011. The case principally raises issues in relation to Article 2 of the first protocol (A2P1) and Article 14 of the European Convention on Human Rights.
The Claimant was brought to the United Kingdom by her parents when she was 6. She entered as a dependent of her father who had a student visa. She has lived in the United Kingdom with her mother ever since. All her education has been in the English educational system. She has done very well in school and is determined to go to university. She has had a number of offers of university places.
Her determination is demonstrated by the fact that after it became apparent that she would not obtain a student loan —I will, of course, come to that —she applied for places at local universities which she could attend while living at home. She accepted a place at Hull University and was able to pay the first tuition fee instalment. Her mother had changed jobs to earn more. The Claimant obtained a student overdraft, but she had to pull out of the course. She could not meet the ongoing costs. She was liable to forfeit the tuition fee payment and was left overdrawn on her student account. However, she now has a place to you study International Business Management at Middlesex University starting in October 2014. She will not be able to take it up unless she secures a student loan by September. Her place, as is generally the case, is conditional on payment of upfront fees, albeit in instalments. Anyone acquainted with the facts of the case would wish to pay tribute to the Claimant's single minded ambition to gather the benefits of higher education.
I should say a little more about the Claimant's immigration history. Her father left the United Kingdom in early 2003 when his leave expired. The Claimant and her mother remained, unlawfully overstaying their leave. So the matter stood, as I understand it, until 6 September 2010 when UKBA served notice that they were liable to removal from the United Kingdom. However, they were granted temporary admission. On 13 January 2012, they were granted discretionary leave to remain until 29 January 2015. According to published Home Office policy, the Claimant will then have the opportunity to apply for a further three year period of discretionary leave and thereafter in 2018 for indefinite leave to remain.
I will shortly describe the relevant legal provisions relating to the state backed student loan scheme which, under arrangements made by the Secretary of State, is administered by the Student Loans Company Limited, which was named as an interested party in the litigation. As the judge observed in paragraph 7 of his judgment, such loans are "plainly far more advantageous to the student than any commercial comparator". They are heavily subsidised by the tax payer. They are repayable only after the student has left his or her course and his or her earnings exceed £21,000 and then at the rate of 9 per cent of earnings over that figure.
The Claimant applied for a student loan in April 2013, but she did so online via the Student Finance England website. After seeking to grapple with questions regarding her immigration status, she obtained advice. On 20 May 2013, her solicitor confirmed that it was likely she would be refused a loan because of the immigration position. Indeed, she is ineligible on the face of the applicable regulations.
These proceedings were issued on 24 June 2013 seeking, among other things, a declaration that the provisions which exclude her from eligibility "on the sole basis that she has discretionary leave to remain" violate ECHR A2P1, the right to education, and/or Article 14 of the anti-discrimination provisions.
Supperstone J granted judicial review permission on 13 March 2014. There had been some procedural delays associated with the progress of another case raising like issues called Kebede [2013] EWHC (Admin) 2396 in which Burnett J gave judgment on 31 July 2013. An appeal to this court in Kebede was discontinued. As I understand it, the Claimants had obtained funding from an alternative source.
Now I will come to the relevant legislation. The public funding of students and institutions of higher education has quite a long legislative history outlined in the skeleton argument prepared on behalf of the Secretary of State by Mr Kovats, QC and Mr Sachdeva. I may go straight to the present day position.
Section 22 of the Teaching and Higher Education Act 1998 provides for regulations to be made authorising or requiring the Secretary of State to make grants or loans to eligible students in connection with their undertaking higher education courses. The regulations may, in particular, make provisions for determining whether a person is an eligible student in relation to any grant or loan available under section 22: see sub-section (2)(a). The regulations are made by statutory instrument subject to the negative resolution procedure: section 42(1) and (3). They may make different provisions for different cases, circumstances or areas: section 22(6). Pursuant to section 23(4) the Secretary of State has delegated his function of administering student loans to the Student Loans Company, which is owned by the department together with government agencies in Scotland, Wales and Northern Ireland.
The current regulations are the Education (Student Support) Regulations 2011 ("the 2011 regulations"). Regulation 4 provides, so far as material, that an eligible student is a person whom the Secretary of State has determined as falling within one of the categories set out in Part 2 of Schedule 1. There are eight such categories. Seven of the categories identify persons having rights or a status under EU law or associated rights. Thus they include the children of Swiss nationals and of Turkish workers. These categories are described by the judge in paragraph 17 of his judgment.
The remaining category is the "basic category" and is given in paragraph 2 of Part 2 of Schedule 1 to the regulations. It consists of persons who are settled in the United Kingdom and who have been ordinarily resident in the UK throughout the three year period preceding the first day of the academic year of the course. By paragraph 1(1) of Part 1 of Schedule 1 "settled" has the meaning given by section 33(2A) of the Immigration Act 1971; namely, a person who is ordinarily resident here without being subject under the immigration laws to any restriction on the period for which he may remain.
It is common ground that such a person, if not a British citizen, must have been granted indefinite leave to remain. It is also common ground that ordinary residence means lawful ordinary residence, though there is an issue arising on the Claimant's cross appeal on ground four of the judicial review grounds before Hayden J whether residence pursuant to the grant of temporary admission counts as lawful ordinary residence. On the face of the 2011 regulations, the Claimant does not fall within the basic category, nor, of course, any of the other seven categories.
A2P1 provides no person shall be denied the right to education. Article 14 provides:
"The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status."
The judge set out the grounds of challenge in paragraph 19 of his judgment. I adopt his summary with some adaptations. Ground one; the blanket exclusion from eligibility predicated entirely on the Claimant's leave to remain is a disproportionate interference with her right of access to education under A2P1. Ground two; the blanket exclusion has the effect of unjustifiable discrimination against the Claimant on the grounds of her immigration status and ultimately, therefore, linked to her national origin. Ground four; the Claimant meets the statutory requirements of three years lawful ordinary residence by virtue of her period of residence following a grant of temporary admission and thereafter a grant of leave to remain. I need not go into ground three, which is now of historic interest only.
Hayden J noted that there was a good deal of common ground before him. In particular (judgment; paragraph 20(ii)) the Secretary of State now accepted that eligibility...
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