Students without indefinite leave to remain are ineligible for student loans

11 September 2014 by

loanimage0 R (on the application of Tigere) v Secretary of State for Business, Innovation and Skills [2014] EWCA Civ 1216 (31 July 2014) – read judgment

The United Kingdom was not in breach of the human rights of those individuals ineligible for student loans because they did not have indefinite leave to remain in the country. The relevant legislation limits eligibility for student loans to those who are “settled” in the United Kingdom (within the meaning of the Immigration Act 1971 ) and who have been ordinarily resident in the UK for three years. According to the Court of Appeal, requiring the Secretary of State to link criteria for educational  eligibility to changes in immigration rules would “enmesh” him into immigration policy:

His picking and choosing candidates for settlement as eligible for student loans, while not … unconstitutional, would be a fragile and arbitrary basis for policy in an area where clarity and certainty are required.

This appeal turned on  issues in relation to the right to education under Article 2 of the first protocol (A2P1) and the prohibition of discriminatory treatment under Article 14 of the European Convention on Human Rights.


The claimant, a Zambian national, had been resident in the UK since the age of 6. However, after her father left the country in early 2003 when his leave expired, the claimant and her mother remained, unlawfully overstaying their leave. In September 2010 the UKBA served notice that they were liable to removal from the United Kingdom. Thereafter they were granted temporary admission, and on 13 January 2012, they were granted discretionary leave to remain (DLR) until 29 January 2015.

The problem is that DLR does not satisfy the conditions of eligibility for student loans under the Education (Student Support) Regulations 2011. There are eight categories of persons who were eligible for student loans. Seven of these categories comprise persons having rights or a status under EU law or associated rights. The remaining category consists of persons who are settled in the UK and who had been ordinarily resident in the UK throughout the three-year period preceding the first day of the academic year of the relevant course. “Settled” meant a person who was ordinarily resident here without being subject under the immigration laws to any restriction on the period for which he could remain.

The issue before the Court was whether the blanket exclusion from eligibility predicated entirely on the claimant’s leave to remain was a disproportionate interference with her right of access to education A2P1 and whether it had the effect of unjustifiable discrimination against her on the ground of her immigration status under Article 14.

The Court upheld the Secretary of State’s appeal against the finding below that the claimant’s rights had been breached.

The Court’s reasoning

Laws LJ, giving judgment, noted that the Secretary of State had accepted that eligibility for financial support for higher education fell within the scope or ambit of A2P1. It was also common ground “that the objective of husbanding limited funds to afford priority for individuals who are likely to remain in the UK in order to complete their education and benefit the UK economy is a legitimate aim.” Moreover,

no one contends that A2P1 requires the state to provide available funding to every successful candidate for higher education who needs it, whatever his or her immigration status. I note in that connection the funding decision in Belgian Linguistic Case (No. 2) [1968] 1 EHRR 252 at 280 to 281

The issue was therefore essentially one of proportionality. This was a case in which the legal challenge was directed at a “national strategic policy for the distribution of scarce resources in a field of great social importance”. The secretary of state had been justified in promulgating a bright-line rule. Further, that rule had been lawfully set.

this is surely an area in which everyone, especially the affected student or students, needs to know where they are and, in the nature of things, to know it within what may be a relatively short timescale. The court cannot commit the system of student loans to the emergency of nice arguments about the impact of the ECHR case by case. The objection is not merely that such a system would be expensive and effectively unworkable…

The real difficulty is that such a system would be uncertain and arbitrary. Some cases would be preferred over others on marginal grounds. Delays would occasion real hardship. Loss of confidence and even disrepute would, in consequence, dog the regime. (paras 27 – 28)

It was significant that the Education Act 1944 s.1(1) imposed on the Minister of Education a duty “to promote the education of the people of England and Wales”. That provision was replicated in the Education Act 1996 s.10. The phrase “the people of England and Wales” was not defined, but it provided a legitimate steer for the policy relating to student funding.

The relation between the government responsibilities setting immigration policy through the Immigration Rules and setting student funding policy by statutory instrument was at the centre of the case. The Secretary of State was entitled to adopt a criterion dependent on settlement and was not required to modify it by reference to the fact that the Home Office may alter the immigration rules by which settlement is achieved from time to time.

This approach serves the need of certainty and the avoidance of an arbitrary rule. If the Secretary of State is responsible for the education loan scheme and is required to uncouple the Rules he promulgates from the straightforward criterion of settlement, he is launched on a sea of arbitrary choices.

Vos LJ added his observation that the secretary of state had to ensure that the applicable regulations operated properly in the context of immigration policy. While he could not be expected to make frequent adjustments to the regulations as the Immigration Rules changed, he had to review the situation periodically to ensure that, for example, the requirement of “settlement” remained appropriate in the light of the way the immigration processes operated. What saved the eligibility requirements in the 2011 Regulations was the fact that there had at all relevant times been a discretion to grant indefinite leave to remain to children on the grounds set out in Section 55 of the Borders, Citizenship and Immigration Act 2009.
Sign up to free human rights updates by email, Facebook, Twitter or RSS

Related posts on education



1 comment;

  1. cidermaker says:

    That is a good judgement. I, personally, think 3 years is too short a definition of settled, 5 years at least should be the minimum.

Comments are closed.

Welcome to the UKHRB

This blog is run by 1 Crown Office Row barristers' chambers. Subscribe for free updates here. The blog's editorial team is:
Commissioning Editor: Jonathan Metzer
Editorial Team: Rosalind English
Angus McCullough QC David Hart QC
Martin Downs
Jim Duffy

Free email updates

Enter your email address to subscribe to this blog for free and receive weekly notifications of new posts by email.




Aarhus Abortion Abu Qatada Abuse Access to justice adoption AI air pollution air travel ALBA Allergy Al Qaeda Amnesty International animal rights Animals Anne Sacoolas anonymity Article 1 Protocol 1 Article 2 article 3 Article 4 article 5 Article 6 Article 8 Article 9 article 10 Article 11 article 13 Article 14 article 263 TFEU Artificial Intelligence Asbestos Assange assisted suicide asylum asylum seekers Australia autism badgers benefits Bill of Rights biotechnology blogging Bloody Sunday brexit Bribery British Waterways Board care homes Catholic Church Catholicism Chagos Islanders Charter of Fundamental Rights child protection Children children's rights China christianity citizenship civil liberties campaigners civil partnerships climate change clinical negligence closed material procedure Coercion Commission on a Bill of Rights common law communications competition confidentiality consent conservation constitution contact order contact tracing contempt of court Control orders Copyright coronavirus costs costs budgets Court of Protection crime criminal law Cybersecurity Damages data protection death penalty defamation DEFRA deportation deprivation of liberty derogations Detention Dignitas diplomacy diplomatic relations disability disclosure Discrimination disease divorce DNA domestic violence duty of care ECHR ECtHR Education election Employment Environment Equality Act Equality Act 2010 Ethiopia EU EU Charter of Fundamental Rights EU costs EU law European Convention on Human Rights European Court of Human Rights European Court of Justice evidence extradition extraordinary rendition Facebook Facial Recognition Family Fatal Accidents Fertility FGM Finance foreign criminals foreign office foreign policy France freedom of assembly Freedom of Expression freedom of information freedom of speech Gay marriage gay rights Gaza Gender genetics Germany Google Grenfell Gun Control hague convention Harry Dunn Health HIV home office Housing HRLA human rights Human Rights Act human rights news Human Rights Watch Huntington's Disease immigration India Indonesia injunction Inquests insurance international law internet inuit Iran Iraq Ireland islam Israel Italy IVF ivory ban Japan joint enterprise judaism judicial review Judicial Review reform Julian Assange jury trial JUSTICE Justice and Security Bill Law Pod UK legal aid legal aid cuts Leveson Inquiry lgbtq liability Libel Liberty Libya lisbon treaty Lithuania local authorities marriage Media and Censorship mental capacity Mental Capacity Act Mental Health military Ministry of Justice modern slavery morocco murder music Muslim nationality national security naturism neuroscience NHS Northern Ireland nuclear challenges nuisance Obituary ouster clauses parental rights parliamentary expenses scandal patents Pensions Personal Injury physician assisted death Piracy Plagiarism planning planning system Poland Police Politics Pope press prison Prisoners prisoner votes Prisons privacy procurement Professional Discipline Property proportionality prosecutions prostituton Protection of Freedoms Bill Protest Public/Private public access public authorities public inquiries quarantine Radicalisation refugee rehabilitation Reith Lectures Religion RightsInfo right to die right to family life Right to Privacy right to swim riots Roma Romania round-up Round Up Royals Russia saudi arabia Scotland secrecy secret justice Secret trials sexual offence shamima begum Sikhism Smoking social media social workers South Africa Spain special advocates Sports Standing starvation statelessness stem cells stop and search Strasbourg super injunctions Supreme Court Supreme Court of Canada surrogacy surveillance sweatshops Syria Tax technology Terrorism The Round Up tort Torture travel treason treaty accession trial by jury TTIP Turkey Twitter UK Ukraine universal credit universal jurisdiction unlawful detention USA US Supreme Court vicarious liability Wales War Crimes Wars Weekly Round-up Welfare Western Sahara Whistleblowing Wikileaks wildlife wind farms WomenInLaw Worboys wrongful birth YearInReview Zimbabwe


This blog is maintained for information purposes only. It is not intended to be a source of legal advice and must not be relied upon as such. Blog posts reflect the views and opinions of their individual authors, not of chambers as a whole.

Our privacy policy can be found on our ‘subscribe’ page or by clicking here.

%d bloggers like this: