Student loans for students who are not settled in the UK

January 17th, 2016

This is the latest instalment in the long-running tale about students who are not eligible for student loans because of their immigration status.

In the summer, the Supreme Court found that a student loans eligibility requirement that a student be settled in the UK breached their rights under Article 14 read with Article 2 of the First Protocol of the ECHR: R (Tigere) v Secretary of State for Business, Innovation and Skills [2015] UKSC 57. I posted it about the decision here: in summary, the Court found that the settlement criterion for student loans discriminated on ground of immigration status in the enjoyment of the right to education. The regulations in question pursued a legitimate aim, namely targeting resources on those students who were likely to stay in the UK to complete their education and afterwards contribute to the UK economy through their enhanced skills and the taxes they pay. However, the means chosen to pursue that legitimate aim were not rationally connected to it; Ms Tigere had discretionary leave to remain in the UK and an established private life here.  A bright line rule which more closely fitted the legitimate aims of the measure could have been chosen.

Following the Supreme Court’s decision, the Government put in place an interim policy for determining loan applications for those who were not settled in the UK. This required the applicant (i) to be aged under 18 and to have lived in the UK for at least seven years; or (ii) to be aged 18-25 and to have spent at least half their life in the UK.

The claimant in this case applied at a time when the interim policy was in place. She had arrived in the UK shortly after her 10th birthday, she started a university course in September 2014 when she was 19, she applied for a student loan and it was rejected after the Supreme Court decision in September 2015. She was refused because she had not spent half her life in the UK by the first day of the first year of her course in September 2014. She applied for judicial review of this decision, arguing that on a proper interpretation of the interim policy she was entitled to a student loan, in any event the interim policy was unlawful (for the same reasons as the original policy had been found to be unlawful) and in any event her application was exceptional and therefore should have been allowed.

In R (Nyoni) v Secretary of State for Business, Innovation and Skills [2015] EWHC 3533 (Admin), Sir Brian Keith criticised the drafting of the interim policy, but found that it was sufficiently clear and that it required an applicant to satisfy either criterion on the date on which the first year of their course started. This meant that the claimant’s student loans application fell to be rejected under the terms of the interim policy. Further, he found that the bright line rule based on long-residency in the interim policy was lawful. However, he went on to conclude that the claimant’s personal circumstances were such as to require the Secretary of State to treat her case as an exceptional one. She was in year two of her course, but she could not get funding for future years unless she gave up her course, re-applied for that or another course and then applied for a student loan before the new course started in 2016/17 (by which time she would be eligible under the interim policy because she would have spent more than half her life in the UK). In order to access this funding, she would have to repeat the year that she had already done and her graduation would be delayed by two years.

This is an interesting case because the Secretary of State’s policy was upheld but the claimant still succeeded because of her personal circumstances.

Rachel Kamm, 11KBW, @Kamm11KBW

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