In a rare example of a case engaging the right to education under Article 2 of the First Protocol of the European Court of Human Rights ("A2P1"), the Supreme Court has found in R (on the application of Tigere) v Secretary of State for Business, Innovation and Skills  UKSC 57 that the blanket exclusion from eligibility for student loans of people with limited leave to remain is unlawful. Although the case is only concerned with student loans, the issues raised are also of relevance for eligibility for home students fees.
In order to qualify for a loan under the Education (Student Support) Regulations 2011, a student must (a) be resident in England when the academic year begins; (b) have been lawfully ordinarily resident for the three years before then; and (c) be settled in the United Kingdom on that day.
The applicant was a Zambian national who had been brought to the UK by her parents in 2001 when she was 6 as a dependant of her father's student visa. When her father left the UK, her mother remained behind with her after their visas expired. Eventually they came to the attention of the Home Office and were granted discretionary leave for three years in January 2012. The applicant's leave was renewed for a further three years in 2015. An application for indefinite leave to remain (ILR ie settlement) was refused at the same time. She will qualify for indefinite leave to remain in 2018.
The applicant received reception, primary, secondary and sixth form education here, obtaining sufficiently good grades to be offered a place at Northumbria University. However, in order to fund her education, she needed a student loan, and was unable to satisfy the criteria above. Furthermore, Home Office policy is that a desire to qualify for a student loan does not constitute a good reason for granting ILR. In the absence of a loan, she was unable to take up the offer from Northumbria and instead attempted to take alternative courses but had to withdraw because of financial pressures.
The applicant complained that the denial of access to a student loan because of the settlement criterion and the three year residence criterion constituted a breach of her right to education under A2P1, and that this was also discrimination under Article 14 ECHR. By a bare majority, 3-2, the Supreme Court allowed her appeal on the basis of her complaint against the settlement criterion. It made a declaration that her Article 14 rights had been breached in conjunction with A2P1. It rejected her complaint about the lawful ordinary residence criterion, finding that there were strong public policy reasons for insisting on a period of lawful residence.
Giving the leading majority judgment, Lady Hale, with whom Lord Kerr concurred, found that although the Regulations pursued a legitimate aim, ie targeting resources on those students likely to stay in the UK to complete their education and contribute to the UK economy thereafter, the means chosen to pursue that aim were not rationally connected to it. In particular, although the applicant did not have ILR, her established private life meant she could not be removed from the UK unless she committed a serious criminal offence. She was just as closely connected and integrated into UK society as her settled peers.
Lady Hale then considered whether the Secretary of State was justified in adopting a "bright line" rule enabling the scheme to be administered quickly and easily. She found that an exclusionary rule, which allowed for no discretion to consider equally deserving unusual cases that fell on the wrong side of the line was hard to justify. She considered that a bright line rule which more closely fitted the legitimate aims of the measure could have been formulated, and that this would not be unworkable given the small numbers involved.
However, Lord Hughes, in a concurring judgment, appeared to disagree with significant aspects of Lady Hale's judgment. In particular, he concluded that although the applicant's Convention rights had been violated, and it was now for the Secretary of State to devise a rule which did not infringe those rights, he did not think that it would amount to an infringement of any Convention rights if he elected not to include an elastic "exceptional case" discretion in the new rules.
The judgment is welcome in that it may lead to some of those who are well established in the UK but are currently unable to pursue higher education because of their immigration status to do so. By all accounts, there is a relatively small number of people involved, and it is surely in the country's interest that people who are likely to remain here are enabled to further their education and careers. However, it remains to be seen how many people will actually benefit from this decision when the new Regulations are made.