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England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Tigere, R (On the Application Of) v Secretary of State for Business, Innovation And Skills  EWCA Civ 1216 (31 July 2014)
Cite as:  EWCA Civ 1216
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ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
(MR JUSTICE HAYDEN)
London, WC2A 2LL
B e f o r e :
LORD JUSTICE FLOYD
LORD JUSTICE VOS
|THE QUEEN ON THE APPLICATION OF TIGERE
|SECRETARY OF STATE FOR BUSINESS, INNOVATION AND SKILLS
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Mr S Kovats, QC and Mr V Sachdeva (instructed by Treasury Solicitors) appeared on behalf of the Respondent
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"The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status."
"the question depends on an exacting analysis of the factual case advanced in defence of the measure, in order to determine (i) whether its objective is sufficiently important to justify the limitation of a fundamental right; (ii) whether it is rationally connected to the objective; (iii) whether a less intrusive measure could have been used; and (iv) whether, having regard to these matters and to the severity of the consequences, a fair balance has been struck between the rights of the individual and the interests of the community. These four requirements are logically separate, but in practice they inevitably overlap..."
"This policy concentrates what are inevitably limited public funds on those categories of persons with a lawful and substantial residential connection; those who are settled here without any restrictions upon the time they can remain in the United Kingdom. Such students can enjoy the benefit of the higher education that they have undergone here and are in a better position to make a significant economic contribution."
"There are rational reasons behind the policy aim and the amendment. First, it is considered that those with the permanent right of residence are more deserving of the limited funds at the Government's disposal. Second, those with the right to stay permanently at least have the right to remain and work in the United Kingdom indefinitely thereby contributing to the economy. Those with temporary leave to remain may or may not gain the right to stay permanently."
"To have created a category of exceptional case, as the Claimant appears to contend should have been done, would, with respect, have been unworkable. It would be both inefficient and impractical to administer for it would inevitably lead to inconsistent decisions in individual cases, each of which would need to be considered in detail. Further, the Claimant suggests that the basis of her right to a student loan is the near certainty, she alleges, that she will be granted settled status in due course. However, if the basis of an exceptionality policy was an applicant's potential immigration status, it would involve officials from the Department second guessing future decisions of officials from the Home Office; an obviously unworkable policy both from the perspective of institutional competence and as a matter of practicality."
"is aged 18 years or above and under 25 years and has spent at least half of his life living continuously in the UK (discounting any period of imprisonment)."
"(1) whether the objective of the measure is sufficiently important to justify the limitation of a protected right, (2) whether the measure is rationally connected to the objective, (3) whether a less intrusive measure could have been used without unacceptably compromising the achievement of the objective, and (4) whether, balancing the severity of the measure's effects on the rights of the persons to whom it applies against the importance of the objective, to the extent that the measure will contribute to its achievement, the former outweighs the latter."
Moreover, it seems to me beyond argument that the effect on the Applicant is very significant indeed. If her case is unsuccessful, she will be deprived of higher education at the time in her life when her primary and secondary education has led her reasonably to expect that she will go with her peers to university. She has no intention of leaving the United Kingdom. Her life was made here from the age of 6 and she is culturally and socially integrated into British society. Moreover, there is no possibility of her being removed from the United Kingdom by the SSHD when the time comes for her DLR to be extended because under Article 8 her removal is simply not an option.
The judge sought submissions from the parties as to when the Applicant could expect to obtain ILR and thereby become settled in the United Kingdom and eligible for student funding. He recorded these submissions at paragraph 21 of his judgment, but was not especially impressed with what he was told. In short, because the Applicant was granted DLR before 9 July 2012, the transitional provisions of the SSHD's new policy should enable the Applicant to obtain ILR after January 2018, which would mean that she would be 23 years old before she could start a course of funded higher education in September 2018. Had she not obtained her first DLR until after 9 July 2012, she would not have been able, under the current policy, to obtain ILR until 2022.
The policy was unlawful because it failed to take adequate account of section 55(1) of the Borders, Citizenship and Immigration Act 1971 (section 55) which provided that the SSHD must make arrangements for ensuring that her immigration functions were discharged, having regard to the need to safeguard and promote the welfare of children who are in the United Kingdom.
In my judgment, broadly for the reasons given by Laws LJ, the regulations are a proportionate bright line solution. It is not up to the Secretary of State to interfere in immigration policy. He is entitled to assume that the SSHD's immigration policies are in themselves lawful unless successfully challenged.
Mr Stephen Kovats, QC for the Secretary of State said that the concept of "settlement" had not changed. Only the immigration policies had changed, which was not his concern. I do not accept that submission because settlement involves, in this situation, having ILR. The Secretary of State knows that. Therefore, if ILR is not obtainable in circumstances where it was previously available, that may affect the operation and discriminatory effect of the Secretary of State's regulations for which he is responsible.