The High Court has recently considered human rights issues engaged by the eligibility rules for student loans. Mr Justice Hayden considered the issues on 17 July 2014 in R (Tigere) v Secretary of State for Business Innovation and Skills and The Student Loan Company [2014] EWHC 2452 (Admin). The claimant challenged the Secretary of State’s policy under which she was ineligible for a student loan. She was a Zambian national who had been granted discretionary leave to remain until 2015. She applied for and was granted a university place. However, her application for a student loan was refused on the basis that she was ineligible, under Part 2 of Schedule 1 to the Education (Student Support) Regulations 2011 because she had not been ordinarily resident in the UK throughout the three-year period preceding the first day of the academic year of her course. Whilst she had been living in the UK, indefinite leave to remain (rather than discretionary leave to remain) has been required to establish eligibility since 9 February 2011 (with a limited number of exceptions, which did not apply to the claimant). The claimant contended that this blanket exclusion was:
- a disproportionate interference with her right of access to education under Protocol 1 art.2 ECHR; and
- discrimination on grounds of her immigration status, linked to her national origin, contrary to art.14 ECHR
because it did not take into account the strength of her connection with the UK and her real prospect of being granting indefinite leave to remain in future. It was common ground that education was a right that enjoyed direct protection under ECHR, being expressly enshrined in Protocol 1, art.2. Higher education was capable of falling within the ambit of that right, as was eligibility for financial support for higher education. It was common ground that the objective of husbanding limited funds to afford priority to individuals who were likely to remain in the UK in order to complete their education and benefit the UK economy was a legitimate aim. A Member State’s margin of appreciation in that domain increased with the tier of education concerned, so that a wider margin would be afforded at university level than at primary level, where schooling concerned basic literacy and numeracy. Mr Justice Hayden found that by excluding the claimant from eligibility for a student loan, she was deprived of the opportunity to fulfil her promise, which would have an impact on her dignity and also would impact on social cohesion (because it would strike her peers as arbitrary and unfair that her talents, personal experiences and perspectives had not been harnessed to best effect). Whether considering Protocol 1, art.2 or art.14 ECHR, very careful scrutiny was required in order to evaluate whether interference with those rights was proportionate to a legitimate aim. He considered the Equality Impact Assessments (which post-dated the changes to the eligibility for student loans) and concluded that the Secretary of State’s policy gave no real consideration to the detrimental impact of a potentially significant period of delay in accessing higher education for those who had no alternative source of funding. There had been no real engagement by the Secretary of State in a justification of the rationality or proportionality of the blanket exclusion. The mere saving of costs could not justify discrimination. For these reasons, the blanket exclusion was unlawful and the claimant’s claim succeeded. The Secretary of State has appealed and the Court of Appeal heard the appeal in late July. Judgment is awaited.
Rachel Kamm, 11KBW