Supreme Court: a right to a student loan?

3 August 2015 by David Hart KC

R (Tigere) v. Secretary of State for Business [2015] UKSC 57, 29 July 2015 read judgment here

Ms Tigere is 20.  She arrived in the UK from Zambia when she was 6. She did very well at school. In 2013, she applied for a student loan to fund a university place.

The current English system does not allow her to apply for a loan, because of her immigration status. In particular, she did not

(1) have Indefinite Leave to Remain  (ILR) here (and so did not comply with the “settlement rule”), and

(2) have three years of “lawful” ordinary residence here (so did not comply with “the residence rule”).

In a very close run thing, the Supreme Court decided that the application of the settlement rule was incompatible with her Convention rights, under Article 2 of the First Protocol and/or Article 14. By contrast, the residence rule was not incompatible with her rights.

The result was 3-2, and Lord Hughes (of the majority) disagreed with important elements of the reasoning of Lady Hale and Lord Kerr who found for Ms Tigere.

The case is a perfect example of the difficulties of deciding human rights cases in the context of social benefits, as we shall see.

The facts

A bit more fact before we get to the law. Ms Tigere arrived as a dependent of her father who had a student visa. He left in 2003, and her mother (and she) over-stayed. In 2010, the UKBA warned her mother of this, but granted them temporary permission to remain. In January 2012, this permission was extended to Discretionary Leave to Remain (DLR).

She will be entitled to apply for ILR (and hence potentially for a student grant), but not until 2018. So, if the settlement rule (only ILR counts) is valid, she cannot apply for a student loan until (at very earliest) she is 23, and all probability she will be considerably older once the UKBA has done its stuff, and she gets her university place again. The only realistic reason why she would not get ILR is if she committed a serious criminal offence in the meanwhile, so in all probability, the outcome is loan delayed, not loan denied.

The effect of the residence rule is less significant. In her case, it was an obstacle when she applied in April 2013, but she had three years of lawful ordinary residence under her belt by January 2015, thanks to the grant of DLR in January 2012.

These rules arise out of immigration legislation when read with education legislation: for the minutiae, see [14]-[18].

The law

A2P1 provides (under the heading “Right to education”) that “no person shall be denied the right to education“. (Lady Hale slightly misquotes this in [23]). The negative formulation means that there is no right to public financial support for that education ([73]), but Art.14 prohibits discrimination on the grounds of “other status”, which includes immigration status ([26], [74]).

The Big Issue in the case was whether the discrimination caused by this composite legislation could be justified.

The minority (Lords Sumption and Reed) said that the test was whether the loan system was “manifestly without foundation”, drawing on cases (in the UK and in Strasbourg) involving sex discrimination, housing, spousal leave to enter, and subsistence benefits: see [77] for all this.

As trailed above, we need to keep our eyes on the three strands of opinion found in the judgments.

Strand 1

Lady Hale (with whom Lord Kerr agreed) disagreed –  “education is rather different”: [28].  It is given special protection by A2P1. Of course deference ought to be paid to the judgements of the SoS as primary decision-maker, but in this case there was no evidence that the SoS had considered the particular problem or indeed that it had been debated in Parliament.  Lady Hale could see no justification as to why Ms Tigere was any less connected with the UK than an ILR comparator. There was no justification for a “bright line” being drawn where it was; a line could have been drawn more closely fitting the aims of the measure, which would not have excluded Ms Tigere. Indeed, there should be an exceptional cases discretion.

A voluntary gap year is one thing, but an enforced gap of several years is quite different.

A declaration should be made to make it clear that Ms Tegere was entitled to a student loan, though it was for the SoS to come up with a more carefully tailored criterion to avoid breaching the rights of other applicants.

Strand 2

Lord Hughes emphasised that the real issue in the case was discrimination. The settlement rule could not be justified: [57]. Those like Ms Tigere who had lived in the UK for most of their lives, were in any ordinary language were “settled”here. As the SoS lengthened the period between arrival and ILR, so there was “increasing separation” between technical “settlement” and actual ties with UK society. Hence the settlement rule goes further than is necessary to achieve the objectives of the government in targeting its subsidy on those likely to produce long-term benefits via their tertiary education.

He however disagreed with Lady Hale s to whether a “bright line” could be adopted by the SoS. It was entirely understandable that the SoS should choose general rules over an individualised assessment of each applicant’s community ties. But those general rules could be better tailored, and it was for the SoS to come up with a fresh system which did so.

..the present rule…fails altogether to address the position of those such as this appellant whose long residence is such that they are in reality “home grown” students.

He agreed with the declaration in favour of Ms Tegere, but as to others it was entirely a matter for the SoS to decide whether a fresh scheme did or did not include an “exceptional case” discretion.

Strand 3

Lords Sumption and Reed thought that there was no principled reason why education benefits should be subject to any different justification test as compared with other benefits, where the “manifestly without justification” test applies. The problems in judges second-guessing the government are precisely the same, and ([77])

The majority has not advanced a single reason in support of abandoning it in the case of state financial support for education except that the words “manifestly without foundation” do not appear in the judgment of the Strasbourg court in Ponomaryov v Bulgaria (2014) 59 EHRR 20, a case in which the nature of the test was not discussed and does not appear to have been in issue.

If Ponomaryov decided anything, it was that the margin of appreciation increased as the level of education increases, and, they thought, the current claim would be most unlikely to succeed in Strasbourg.

There were good reasons for bright-line rules, both practical and linked to the rule of law, designed to promote legal certainty.

There are some tart apothegms in their judgment. In the context of applications, “…candour cannot always be assumed in this field.” “…proportionality cannot be tested by reference to outlying cases” and, underlying the decision

it is not open to the courts to take the decision-making function out of the hands in which Parliament has placed it and assume that function themselves

Conclusion

I said that this was a perfect illustration of a difficult human rights decision – whatever one thinks of the underlying merits. To my mind, the minority had the better argument in terms of precedent, but the majority the better argument on merits. In those circumstances, there is always the temptation to find some lack of consideration by the decision-maker to justify a decision which is harsh when applied to Ms Tigere and many other students in her position. The majority’s best point is that no-one in government had really thought through why an ILR would-be student would be a better bet for society as a whole than a DLR would-be student.

I have absolutely no problems with the result (on the contrary), but it will not be easy in the next educational social benefits discrimination case to chart a course between those instances where it needs to be shown that the decision was “manifestly without foundation” and others such as the present, where “education is rather different.”

It is also of interest to compare the alignment of justices in this case with the Coventry case (see my post here), where the Supreme Court, 2 weeks ago, was weighing up whether the no-win-no-fee/ATE scheme was capable of being justified, despite its harsh impact on certain litigants. Lord Sumption was in the majority, saying it was justified, with Lady Hale in the minority, saying that it could not be justified under Article 6. And key guidance in the Strasbourg case of Animal Defenders v United Kingdom (2013) 57 EHRR 21 being relied upon in each case – with the majority in Coventry observing that

it is no answer to say that other measures could have been taken which would have operated less harshly on non-rich respondents.

Therein lies the dilemma. General rules, and you risk including the unmeritorious or excluding the meritorious; and individualised assessment, and you paralyse the process in potentially unpredictable bureaucracy.

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