This case looked eligibility for student finance for long-term residents of the UK who do not have indefinite leave to remain.
The case involved a Zambian young person, now aged 20, who came to the UK country in 2001 at the age of six. She and her mother overstayed and she was unlawfully resident until 2012 when she regularised her immigration status. She now has discretionary leave to remain in the UK and will be able to apply for indefinite leave to remain in 2018. Having been educated entirely in the UK and obtained good grades, she wanted to go to university but was been unable to take up the university places offered to her as she was not eligible for a student loan because of her immigration status.
In order to qualify for a loan, a student must (a) be resident in England when the academic year begins; (b) have been lawfully ordinarily resident in the UK for the three years before then; and (c) be settled in the UK on that day. This means that all students with limited or discretionary leave to remain in the UK are not eligible for student loans.
The Supreme Court looked at whether either criterion (b) or criterion (c) breached the appellant’s right to education, under article 2 of the First Protocol to the European Convention on Human Rights, or unjustifiably discriminated against her in the enjoyment of that right. The Supreme Court allowed the appeal by a majority of 3:2. It found that the settlement criterion was unjustified but that the requirement of three years’ lawful ordinary residence was justified.
Relevant points in the judgment
- The denial of student loans has a very severe impact upon those it affects and denying or delaying higher education for these individuals also harms the community and the economy (paras 40 – 41).
- The Secretary of State did not consider the impact of removing eligibility from all people with discretionary leave to remain or limited leave to remain, irrespective of the strength of their connections with the UK, when making the regulations (para 20).
- The settlement rule is a good rule of thumb for identifying those who definitely should be eligible for student loans, but there are also people who have lived here for many years and cannot in reality be removed from the country unless they commit a serious crime (para 38).
- Given the comparatively small numbers involved, it has not been shown that it would be administratively unworkable to provide student loans to at least some of those with discretionary or limited leave to remain (para 38).
- The Department of Business, Innovation and Skill should devise a more carefully tailored criterion for student finance which will avoid breaching the Convention rights of other applicants, now and in the future (para 49). This could be based on long residence (para 38).
- There are strong public policy reasons for insisting on a period of lawful ordinary residence before a person becomes entitled to public services (para 45).