R (on the application of Tigere) v Secretary of State for Business, Innovation and Skills
| Jurisdiction | England & Wales |
| Judge | Lady Hale,Lord Kerr,Lord Hughes,Lord Sumption,Lord Reed |
| Judgment Date | 29 July 2015 |
| Neutral Citation | [2015] UKSC 57 |
| Court | Supreme Court |
| Date | 29 July 2015 |
[2015] UKSC 57
Lady Hale, Deputy President
Lord Kerr
Lord Sumption
Lord Reed
Lord Hughes
Appellant
Helen Mountfield QC
Raj Desai
(Instructed by Public Interest Lawyers)
Respondent
Steven Kovats QC
Vikram Sachdeva QC
(Instructed by The Government Legal Department)
Intervener (Just for Kids Law)
Karon Monaghan QC
Nick Armstrong
Sarah Hannett
(Instructed by Just for Kids Law)
Heard on 24 and 25 June 2015
(with whom Lord Kerr agrees)
As is common knowledge, the whole system of funding higher education was reformed, broadly in accordance with the recommendations of Lord Browne's Report, Securing a Sustainable Future for Higher Education (October 2010), in 2011. The aims were further to widen participation in higher education, so that everyone who had the potential to do so should be able to benefit from it; to increase student choice and therefore competition between institutions; and to produce more investment for higher education. The fees which universities were allowed to charge their students would increase to something closer to what it cost to educate them; the fees paid by the students, and a sum for their maintenance, would be financed by loans from Government (through an arms-length entity); these loans would only be repaid when the students could afford to do so and at a rate which they could afford. This case is about the criteria for eligibility for those loans, which exclude young people who have been settled here for many years in the factual sense but are not so settled in the legal sense.
In order to qualify for a loan, a student must (a) be resident in England when the academic year begins; (b) have been lawfully ordinarily resident in the United Kingdom for the three years before then; and (c) be settled in the United Kingdom on that day. The issue is whether either criterion (b) or criterion (c) breaches the appellant's right to education, under article 2 of the First Protocol to the European Convention on Human Rights, or unjustifiably discriminates against her in the enjoyment of that right.
The appellant is a national of Zambia, born in 1995. She came to this country with her parents in 2001, at the age of six. 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. The appellant has lived in the UK since 2001. She has been educated here, through reception, primary, secondary and sixth form studies, has worked hard and has done very well. She was Head Girl of her secondary school and went on to the sixth form at Archbishop Holgate's School in York. She has obtained seven GSCEs and the equivalent of three A levels with grades of A*, A, and C.
These would have been sufficient to enable her to take up the place she had been offered by Northumbria University to read for a degree in International Business Management in the academic year 2013–2014; but in order to do so she needed a student loan. Hayden J was "perfectly satisfied that outside the loan scheme there is no other realistic option" for her to fund university education (para 7). Accordingly, on 20 April 2013, she applied on-line to Student Finance England (the trading name of the Student Loans Company Ltd, which administers the scheme). They requested further information about her immigration status. She took legal advice and discovered that she was not eligible for a student loan.
Her mother had taken no steps to regularise their immigration status after her father had left in 2003, but the appellant states that "growing up, I had no idea what my immigration status was", which seems likely. In September 2010, the UK Border Agency (UKBA) served upon her mother and her (as her mother's dependant) forms notifying them that they were over-stayers and thus liable to removal from the UK, but at the same time granting them temporary admission to the UK. On 30 January 2012, the UKBA granted them both discretionary leave to remain (DLR) until 29 January 2015. The letter stated that "You are free to take a job and do not need the permission of any Government Department before doing so. You are free to use the National Health Service and the social services and other services provided by local authorities as you need them". The grant of DLR was not subject to a condition that she did not have recourse to public funds. Accordingly, she is not excluded from state benefits such as income-based job-seeker's allowance and housing benefit (Immigration and Asylum Act 1999, section 115).
On 29 January 2015, the appellant applied for a further grant of DLR, using the correct form for doing so. On 30 April 2015, this was granted until 30 April 2018. Her covering letter asked that the Secretary of State also consider granting her indefinite leave to remain (ILR), but this was subsequently rejected on the ground that she had not shown compelling reasons for dispensing with the normal qualifying period of DLR. Under the terms of a published Home Office policy, which applies to those like the appellant who were granted DLR before 9 July 2012, she will be entitled to apply for ILR after six years of DLR, that is, in 2018. For those granted DLR after that date, however, consecutive periods of ten years of limited leave to remain are required before a person in her position is eligible to apply for ILR. Applications can be made for ILR to be granted outside the Rules, but the current guidance makes it clear that the Home Office does not regard the desire to qualify for a student loan as a good reason for granting ILR (Immigration Directorate Instruction, Family Migration: Appendix FM, section 1.0b, para 11.3.1).
These proceedings were launched in June 2013, but delayed while the proceedings in R (Kebede) v Secretary of State for Business, Innovation and Skills [2013] EWHC 2396 (Admin), [2014] PTSR 92, which raised the same issues, were continuing. They were renewed after the appeal against the refusal of relief in that case was withdrawn.
Meanwhile, the appellant did not take up the offered place at Northumbria, but applied through clearing for a place closer to her home in York. She was offered a place and started the course at the University of Hull in October 2013, with the aid of a commercial student overdraft facility and her mother, who took a better-paid job in London in order to help her. But it soon became apparent that she would not be able to afford the travelling costs and so she withdrew after two weeks. She made another attempt to start a course at Middlesex University in the academic year 2014–2015, again with the help of her mother and her mother's partner, but withdrew from that after the first term, because of her concerns about the financial pressures on her mother and the quality of the course. She still hopes to be able to start again in the academic year 2015–2016 and has unconditional offers from five universities, including Manchester Metropolitan University, her top choice. Whether this is a realistic possibility depends upon the outcome of these proceedings.
The appellant is not alone in her predicament. The Coram Children's Legal Centre and the interveners, Just for Kids Law, are aware of many other young people who have been in this country for years, have studied alongside their British classmates, and have planned and qualified to go on to university when their classmates do. Often they were unaware of their immigration status and the barrier it would pose to achieving their academic potential and ambitions. Save (perhaps) for those who arrived as unaccompanied asylum-seeking children, their immigration status is not their fault, but that of their parents or those responsible for their welfare (such as the local authority looking after the claimants in Kebede). Some of these young people have set up their own campaign group, under the auspices of Just for Kids Law, called "Let us Learn". Alison East, of the Coram Children's Legal Centre, describes the impact upon them thus:
"Our experience … suggests that young people find not being able to go to university, when that would be a natural educational progression alongside their peers, incredibly difficult. They have worked hard to do well at school and at college, and aspire to achieve the best they can. … Seeing their friends and peers go to university when they cannot, and being aware of being held back for as long as ten years in pursuing qualifications that are essential in a competitive job market, inevitably causes these young people to feel marginalised. … They feel that it is deeply unfair as they are not asking for a grant of money but only to be loaned the money which will allow them to progress, alongside their peers, into well-paid work so that they can pay that loan back."
No-one knows how many such young people there are. In his first witness statement on behalf of the Secretary of State, Paul Williams assumed that there might be 2,400 extra applicants for student loans in any one year. In his second witness statement this had come down to around 2000. In fact, the Home Office statistics reveal that in 2013, a total of just over 2000 people aged 16 to 23 were granted either DLR or its replacement, limited leave to remain (LLTR). These grants are, of course, for 30 months or two years. But not all of these young people will aspire to go to university or apply for student loans. It is perhaps fair to say that the numbers affected are not insignificant but a tiny proportion of the student loans which are made each year. It is also relevant to note that the cap on the number of home and EU...
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