Yonas Kebede and Another v The Secretary of State for Business Innovation and Skills
| Jurisdiction | England & Wales |
| Judge | The Hon Mr Justice Burnett |
| Judgment Date | 31 July 2013 |
| Neutral Citation | [2013] EWHC 2396 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/13741/2012 |
| Date | 31 July 2013 |
[2013] EWHC 2396 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
The Hon Mr Justice Burnett
Case No: CO/13741/2012
Helen Mountfield QC and Shazia Akhtar (instructed by Public Interest Lawyers) for the Claimant
Vikram Sachdeva (instructed by The Treasury Solicitor) for the Defendant
The claimants are two Ethiopian nationals. They each have discretionary leave to remain ["DLR"] in the United Kingdom until 30 November 2014. They wish to go to university but are ineligible for student loans to pay tuition fees made available to all those with a right to remain in the United Kingdom indefinitely, or who have humanitarian protection. Miss Mountfield QC advances two arguments in support of this claim for judicial review. First she submits that the failure to provide student loans to the claimants violates their rights under Article 2 of Protocol 1 of the European Convention on Human Rights ["A2P1 and the Convention respectively]. That provides:
"No person shall be denied the right to education. In the exercise of any functions which it assumes in relation to education and to teaching, the State shall respect the right of parents to ensure such education and teaching in conformity with their own religious and political convictions."
She submits that the lack of a loan has the effect of denying the claimants access to a university education. Additionally, Miss Mountfield submits that denial to the claimants of student loans on grounds of their immigration status amounts to unlawful discrimination contrary to article 14 of the Convention when read with A2P1. 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."
Yonas Kebede was born on 1 November 1991 and Abiy Kebide was born on 17 May 1993. They were brought to the United Kingdom by their father in 2004 along with an elder brother. Shortly after they arrived their father left the country effectively abandoning the boys. Then in September 2007 the elder brother disappeared. Yonas and Abiy became the responsibility of Newcastle City Council under the Children Act 1989 ["the 1989 Act"]. The Council assumed parental responsibility. The claimants are now "former relevant children" for the purposes of that act.
The claimants' elder brother had sought asylum but that was refused in February 2005. Both claimants claimed asylum in their own right in 2008 but were refused. Abiy's appeal was dismissed on 7 July 2009. Yonas did not appeal. His DLR expired on 6 January 2010. He did not apply for futher leave to remain before it expired, but instead made a late application, which was eventually granted on 1 December 2011 for a period of three years. An in-time application to renew DLR has the effect of extending it until the decision is made. Because Yonas did not apply in time, the result is that he was unlawfully in the United Kingdom between those two dates. After his asylum appeal failed, Abiy was granted DLR until 16 November 2010. He applied for further leave to remain before it expired. On 1 December 2011 he was granted DLR for three years.
The current position is that both claimants have DLR until 30 November 201A material difference between them for the purposes of the relevant regulations is that whilst Abiy has three years continuous lawful residence in the United Kingdom, Yonas has not.
The brothers completed their school education. In the autumn of 2011 they applied for university places, when Abiy was 18 and Yonas almost 20. Abiy was offered a place to read business studies at Manchester Metropolitan University. Yonas had a place to study air transport with commercial pilot training at the Buckingham New University. Both courses were due to start in the autumn of 2012. Having secured the places, both discovered that they were ineligible for student loans to finance tuition fees under the relevant regulations. Abiy now has unconditional offers to study business management at Manchester Metropolitan University and the University of East London. He wishes to take up one of those offers in September 2013. The position so far as Yonas is concerned is that he has abandoned the prospect of undertaking the air transport course. Instead, he has made applications to read engineering at Leeds, Kingston and Salford Universities. His witness statement of 28 June 2013 suggests that he has not yet secured a place but he was 'confident' that he would be offered one.
On 22 August 2012 the claimants' solicitors wrote to the Secretary of State for Business Innovation and Skills ["BIS"] pointing out that because they did not have settled status they did not come within the categories of persons eligible for student loans to defray the costs of fees. They asked for the claimants to be treated as if they were settled in the United Kingdom for loan purposes. They both expected to take up their courses in mid-September. In parallel with their approach to BIS the claimants' solicitors wrote to the Council contending that they had obligations under the 1989 Act to fund the claimants' higher education. The response from BIS came through the Treasury Solicitor on 15 October 2012 (a protocol letter had been written in September).
The position of the Council
The claimants' contention as regards the Council was that the proper construction of Sections 23C(4) and 24B(2) of the 1989 Act imposed a duty upon the Council to make grants to enable the claimants to meet expenses connected with their education or training to the extent that their welfare and their educational training needs required it. They succeeded in that argument in the High Court: [2013] EWHC 355 (Admin). The Council appealed. This morning, the Court of Appeal has handed down judgment and dismissed the appeal. The Court of Appeal rejected the argument that "expenses connected with his education" did not include tuition fees. It rejected the contention that in deciding the statutory question, the Council could take account of its limited resources. As Sir Stanley Burnton put it in paragraph 18 of the judgment,
"… the test is objective: assistance is to be given to "the extent that [the former relevant child's] welfare and his educational or training needs require it". Whether and to what extent his welfare and his educational or training needs do require the assistance in question must be decided by the local authority, subject to conventional judicial review principles. Clearly, it requires input from the former relevant child, but the decision is that of the local authority."
It had been suggested in correspondence on behalf of the claimants that their immigration status was irrelevant to the question whether their welfare and educational needs required the assistance in question. That contention was rejected.
"Taken to its extreme, this would mean that a person whose leave to remain expires before, or shortly after, the commencement of a university course, with no likelihood of his leave being extended, has an educational need for a course he cannot complete. In my judgment, immigration status is manifestly relevant."
At the heart of the claimants' factual contentions is the proposition that although both benefit from DLR rather than indefinite leave to remain ["ILR"], there is no realistic prospect of either being removed from the United Kingdom (absent criminal activity). That is because by the time their DLR expires at the end of 2014, they will have been in the United Kingdom for ten years having arrived here at the ages of 11 and 12 respectively. Miss Mountfield submits that the overwhelming likelihood is that both claimants will be granted ILR after December 2014. Come what may, she submits that there will be no reason to remove the claimants. So it will be contended that the Council cannot rationally refuse to provide the support in issue in the Court of Appeal on the basis that the claimants are vulnerable to removal in circumstances which put in doubt whether they would be able to complete their university courses.
Procedural history
The claimants threatened judicial review proceedings against both the Secretary of State and the Council. In due course, separate proceedings were issued against each. The proceedings against the Council were issued in September 2012 but these proceedings not until 19 December 2012. The Council was served as an interested party in these proceedings, but has taken no part. The original position of the claimants was that if they succeeded in their claim against the Council, these proceedings would become academic. That is because it was a founding premise of the claim against BIS that absent a student loan to cover the fees, the claimants would be denied access to university. There was a complete inability to secure funds from elsewhere. The claimants have been working from time to time but are reliant principally on benefits. Their evidence suggests that they have approached their banks for loans. Unsurprisingly, such loans have not been forthcoming. They appear to have made perfunctory efforts to investigate online the possibility of charitable support. Clearly, if the Council provides a grant or loan then there can be no question that the claimants are...
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