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Cite as: [2013] EWHC 2396 (Admin), [2014] PTSR 92

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Neutral Citation Number: [2013] EWHC 2396 (Admin)
Case No: CO/13741/2012


Royal Courts of Justice
Strand, London, WC2A 2LL

B e f o r e :


- and -



Helen Mountfield QC and Shazia Akhtar (instructed by Public Interest Lawyers) for the Claimant
Vikram Sachdeva (instructed by The Treasury Solicitor) for the Defendant
Hearing dates: 16 and 26 July 2013



Crown Copyright ©

    The Hon Mr Justice Burnett:

  1. The claimants are two Ethiopian nationals. They each have discretionary leave to remain ["DLR"] in the United Kingdom until 30 November 2014. They wish to go to university but are ineligible for student loans to pay tuition fees made available to all those with a right to remain in the United Kingdom indefinitely, or who have humanitarian protection. Miss Mountfield QC advances two arguments in support of this claim for judicial review. First she submits that the failure to provide student loans to the claimants violates their rights under Article 2 of Protocol 1 of the European Convention on Human Rights ["A2P1 and the Convention respectively]. That provides:
  2. "No person shall be denied the right to education. In the exercise of any functions which it assumes in relation to education and to teaching, the State shall respect the right of parents to ensure such education and teaching in conformity with their own religious and political convictions."
    She submits that the lack of a loan has the effect of denying the claimants access to a university education. Additionally, Miss Mountfield submits that denial to the claimants of student loans on grounds of their immigration status amounts to unlawful discrimination contrary to article 14 of the Convention when read with A2P1. Article 14 provides:
    "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."
  3. Yonas Kebede was born on 1 November 1991 and Abiy Kebide was born on 17 May 1993. They were brought to the United Kingdom by their father in 2004 along with an elder brother. Shortly after they arrived their father left the country effectively abandoning the boys. Then in September 2007 the elder brother disappeared. Yonas and Abiy became the responsibility of Newcastle City Council under the Children Act 1989 ["the 1989 Act"]. The Council assumed parental responsibility. The claimants are now "former relevant children" for the purposes of that act.
  4. The claimants' elder brother had sought asylum but that was refused in February 2005. Both claimants claimed asylum in their own right in 2008 but were refused. Abiy's appeal was dismissed on 7 July 2009. Yonas did not appeal. His DLR expired on 6 January 2010. He did not apply for futher leave to remain before it expired, but instead made a late application, which was eventually granted on 1 December 2011 for a period of three years. An in-time application to renew DLR has the effect of extending it until the decision is made. Because Yonas did not apply in time, the result is that he was unlawfully in the United Kingdom between those two dates. After his asylum appeal failed, Abiy was granted DLR until 16 November 2010. He applied for further leave to remain before it expired. On 1 December 2011 he was granted DLR for three years.
  5. The current position is that both claimants have DLR until 30 November 2014. A material difference between them for the purposes of the relevant regulations is that whilst Abiy has three years continuous lawful residence in the United Kingdom, Yonas has not.
  6. The brothers completed their school education. In the autumn of 2011 they applied for university places, when Abiy was 18 and Yonas almost 20. Abiy was offered a place to read business studies at Manchester Metropolitan University. Yonas had a place to study air transport with commercial pilot training at the Buckingham New University. Both courses were due to start in the autumn of 2012. Having secured the places, both discovered that they were ineligible for student loans to finance tuition fees under the relevant regulations. Abiy now has unconditional offers to study business management at Manchester Metropolitan University and the University of East London. He wishes to take up one of those offers in September 2013. The position so far as Yonas is concerned is that he has abandoned the prospect of undertaking the air transport course. Instead, he has made applications to read engineering at Leeds, Kingston and Salford Universities. His witness statement of 28 June 2013 suggests that he has not yet secured a place but he was 'confident' that he would be offered one.
  7. On 22 August 2012 the claimants' solicitors wrote to the Secretary of State for Business Innovation and Skills ["BIS"] pointing out that because they did not have settled status they did not come within the categories of persons eligible for student loans to defray the costs of fees. They asked for the claimants to be treated as if they were settled in the United Kingdom for loan purposes. They both expected to take up their courses in mid-September. In parallel with their approach to BIS the claimants' solicitors wrote to the Council contending that they had obligations under the 1989 Act to fund the claimants' higher education. The response from BIS came through the Treasury Solicitor on 15 October 2012 (a protocol letter had been written in September).
  8. The position of the Council

  9. The claimants' contention as regards the Council was that the proper construction of Sections 23C(4) and 24B(2) of the 1989 Act imposed a duty upon the Council to make grants to enable the claimants to meet expenses connected with their education or training to the extent that their welfare and their educational training needs required it. They succeeded in that argument in the High Court: [2013] EWHC 355 (Admin). The Council appealed. This morning, the Court of Appeal has handed down judgment and dismissed the appeal. The Court of Appeal rejected the argument that "expenses connected with his education" did not include tuition fees. It rejected the contention that in deciding the statutory question, the Council could take account of its limited resources. As Sir Stanley Burnton put it in paragraph 18 of the judgment,
  10. "… the test is objective: assistance is to be given to "the extent that [the former relevant child's] welfare and his educational or training needs require it". Whether and to what extent his welfare and his educational or training needs do require the assistance in question must be decided by the local authority, subject to conventional judicial review principles. Clearly, it requires input from the former relevant child, but the decision is that of the local authority."
  11. It had been suggested in correspondence on behalf of the claimants that their immigration status was irrelevant to the question whether their welfare and educational needs required the assistance in question. That contention was rejected.
  12. "Taken to its extreme, this would mean that a person whose leave to remain expires before, or shortly after, the commencement of a university course, with no likelihood of his leave being extended, has an educational need for a course he cannot complete. In my judgment, immigration status is manifestly relevant."
  13. At the heart of the claimants' factual contentions is the proposition that although both benefit from DLR rather than indefinite leave to remain ["ILR"], there is no realistic prospect of either being removed from the United Kingdom (absent criminal activity). That is because by the time their DLR expires at the end of 2014, they will have been in the United Kingdom for ten years having arrived here at the ages of 11 and 12 respectively. Miss Mountfield submits that the overwhelming likelihood is that both claimants will be granted ILR after December 2014. Come what may, she submits that there will be no reason to remove the claimants. So it will be contended that the Council cannot rationally refuse to provide the support in issue in the Court of Appeal on the basis that the claimants are vulnerable to removal in circumstances which put in doubt whether they would be able to complete their university courses.
  14. Procedural history

  15. The claimants threatened judicial review proceedings against both the Secretary of State and the Council. In due course, separate proceedings were issued against each. The proceedings against the Council were issued in September 2012 but these proceedings not until 19 December 2012. The Council was served as an interested party in these proceedings, but has taken no part. The original position of the claimants was that if they succeeded in their claim against the Council, these proceedings would become academic. That is because it was a founding premise of the claim against BIS that absent a student loan to cover the fees, the claimants would be denied access to university. There was a complete inability to secure funds from elsewhere. The claimants have been working from time to time but are reliant principally on benefits. Their evidence suggests that they have approached their banks for loans. Unsurprisingly, such loans have not been forthcoming. They appear to have made perfunctory efforts to investigate online the possibility of charitable support. Clearly, if the Council provides a grant or loan then there can be no question that the claimants are impeded in their access to university education by reason of the operation of the material regulations.
  16. In the face of the claimants' own suggestion that the claim against BIS would be academic if the claim against the Council succeeded, and in light of the fact that the claimants were publicly funded in respect of both claims, the claim against the Council proceeded first. In hindsight, it is clear that it would have been much better for both claims to be heard together. In a reply settled on behalf of the claimants in these proceedings it was said:
  17. "Obviously, if the claim against Newcastle City Council succeeds the present proceedings will become academic. Indeed, public funding for the present proceedings has been granted on the basis that the claimants will prosecute the present application to close of proceedings and thereafter to seek a stay pending the outcome of "Newcastle City Council's" claim."
    (Close of pleadings is what was meant)
  18. It may be that in making that assertion, the claimants' advisers were assuming that success against the Council would deliver a mandatory order that funding be provided, rather than a quashing order followed by redetermination. Be that as it may, whilst recognising that it is no longer possible for the claimants to sustain their essential founding premise, namely that no funds could be available to them other than the student loan scheme, Miss Mountfield submits that all of the issues that arise under A2P1 and article 14 of the Convention should nonetheless be determined on a hypothetical basis. She submits that it is at least possible that the Council will decline to provide financial support. She indicated that if that were the result of the Council's redetermination, then further judicial review proceedings would follow against them.
  19. Any claim arising under the Human Rights Act alleging a violation of one or more of the Convention Rights set out in the schedule to the Act must proceed by reference to the factual circumstances of the claimants in question. In one of the few Strasbourg cases on A2P1 cited in these proceedings, Ponomaryov v. Bulgaria (App. No. 5335/05), the Court observed that it was not its role to consider in abstract whether national law conforms to the Convention, but that it must confine itself to the particular circumstances of the case before it. The boys in question in that case, who were Russian but whose mother was married to a Bulgarian, had lived in Bulgaria since they were very young and been educated in Bulgarian state schools. They were obliged to pay school fees after they turned 18 because of their immigration status and because they had not made the necessary application to regularise that status in their own right.
  20. The importance of the facts which underlie this claim was highlighted by Collins J when he gave permission to proceed:
  21. "[The claimants] are in a very special position having been abandoned first by their father and then by their only other supporting relative … However, I think there is objective justification for the bar … particularly as those who have no indefinite leave are not in general those who would come onto the labour market here and so who would benefit, as would the economy generally, from their skills. The decision to limit loans to those who have humanitarian protection is accordingly in my view reasonable, since they are likely, unless circumstances change in the country of their nationality, to remain here.
    My only concern is that the claimants are, as I have said, someone special. It is said that they have a likelihood of Indefinite Leave to Remain – that seems prima facie to be right. Accordingly, it seems to me that it is arguable that there should be the possibility of discretion to be exercised if, but only if, funding is unavailable from any other source and the individual in question has a real likelihood of being able to remain in the UK workforce."

    Permission was granted after the claimants had succeeded in the High Court against the Council. Although it is clear that the claimants' solicitors had notified the Administrative Court Office of the decision it cannot have been before Collins J, given his reasons for granting permission.

    The Student Loan Scheme

  22. Section 22 of the Teaching and Higher Education Act 1998 provides that regulations shall make provision authorising or requiring BIS to make grants or loans to eligible students in connection with higher education. The making of student loans under section 22 is delegated to the Student Loans Company. There are three sets of regulations which are regularly amended. The Education (Student Support) Regulations 2011 ["the 2011 Regulations"] make provision for the payment of grants or loans to eligible students in connection with attending designated higher education courses. The Education (Fees and Awards) Regulations 2007 identify which students should be charged the overseas rate of fees and those entitled to home fee status. The Student Fees (Qualifying Courses and Persons)(England) Regulations 2007 determine which categories of student may benefit from regulated fees, that is fees capped at a maximum of £9,000 per annum.
  23. Schedule 1 of the 2011 Regulations sets out those who are eligible students for the purposes of receiving student loans to pay tuition fees. In broad terms nationals of the United Kingdom, the European Union, European Economic Area, Switzerland and Turkey and many of their close family are eligible. Otherwise categories of those eligible relevant for the purposes of this claim are set out in paragraphs 3 to 5:
  24. "3. –
    (1) A person who –
    (a) Is settled in the United Kingdom by virtue of having acquired the right of permanent residence;
    (b) Is ordinarily resident in England on the first day of the first academic year of the course;
    (c) Has been ordinarily resident in the United Kingdom and Islands throughout the three-year period preceding the first day of the first academic year of the course; and
    (d) In a case where the person's ordinary residence referred to in paragraph (c) was wholly or mainly for the purpose of receiving full-time education, was ordinarily resident in the territory comprising the European Economic Area and Switzerland immediately before the period of Ordinary residence referred to in paragraph (c).
    Refugees and their family members
    4. –
    (1) A person who –
    (a) is a refuge
    (b) is ordinarily resident in the United Kingdom and Islands and has not ceased to be so resident since the person was recognised as a refugee; and
    (c) is ordinarily resident in the England on the first day of their first academic year of the course.
    (2) A person who –
    (a) is the spouse of civil partner of a refugee;
    (b) was the spouse of civil partner of the refugee on the date on which the refugee made the application for asylum;
    (c) is ordinarily resident in the United Kingdom Islands and has not ceased to be so resident since being given leave to enter or remain in the United Kingdom; and
    (d) is ordinarily resident in England on the first day of the first academic year of the course.
    (3) A person who –
    (a) is the child of a refugee or the child of the spouse of civil partner of a refugee;
    (b) on the date on which the refugee made the application for asylum. Was the child of the refugee or the child of a person who was the spouse or civil partner of the refugee on that date;
    (c) was under 18 on the date on which the refugee made the application for asylum;
    (d) is ordinarily resident in the United Kingdom and Islands and has not ceased to be so resident since being given leave to enter or remain in the United Kingdom; and
    (e) is ordinarily resident in England on the first day of the academic year of the course.
    Persons granted humanitarian protection and their family members
    5. –
    (1) A person granted humanitarian protection who –
    (a) is ordinarily resident in the United Kingdom on the first day of the first academic year of the course; and
    (b) has been ordinarily resident in the United Kingdom and Islands throughout the three-year period preceding the first day of the first academic year of the course.
    (2) A person who –
    (a) is the spouse or civil partner of a person granted humanitarian protection;
    (b) was the spouse or civil partner of the person granted humanitarian protection on the date on which that person applied for asylum (the "asylum application date");
    (c) is ordinarily resident in the United Kingdom on the first day of the first academic year of the course; and
    (d) has been ordinarily resident in the United Kingdom and Islands throughout the three-year period preceding the first day of the first academic year of the course.
    (3) A person who –
    (a) Is the child of a person granted humanitarian protection of the child of the spouse or civil partner of a person granted humanitarian protection;
    (b) on the asylum application date, was the child of that person or the child of a person who was the spouse or civil partner of the person granted humanitarian protection on that date;
    (c) was under 18 on the asylum date;
    (d) is ordinarily resident in the United Kingdom on the first day of the first academic year of the course; and
    (e) has been ordinarily resident in the United Kingdom and Islands throughout the three-year period preceding the first day of the first academic year of the course."
  25. These paragraphs cover individuals with ILR, those with refugee status and those with humanitarian protection (and their families). Those with ILR must demonstrate that they are ordinarily resident on the first day of the course and have been ordinarily resident for the three years preceding that day. For these purposes 'ordinarily resident' means ordinarily and lawfully resident: R (Arogundade) v. Secretary of State for Business Innovation and Skills [2013] EWCA Civ 823. A refugee does not need to establish three years ordinary and lawful residence but someone with humanitarian protection does. A person with humanitarian protection will have been granted DLR for a period which can vary.
  26. It is readily apparent that the claimants fail to qualify for a student loan to pay tuition fees. They do not have ILR; they are not refugees and they do not have humanitarian protection.
  27. The same criteria apply to the question whether a student should be charged fees as an overseas student or have home fee status.
  28. These paragraphs were originally introduced by way of amendment to the Education (Student Support) Regulations 2009 ["the 2009 Regulations"]. Those regulations made the same provision in respect of those with ILR and who were refugees. But paragraph 5 covered a broader range. It concerned those "with leave to enter or remain and their family members". That term was defined by regulation 2 as,
  29. "Person with leave to enter or remain means a person-
    (a) who has been informed by a person acting under the authority of the Secretary of State for the Home Department that, although the person is considered not to qualify for recognition as a refugee, it is thought right to allow that person to enter or remain in the United Kingdom;
    (b) who has been granted leave to enter or remain accordingly;
    (c) whose period of leave to enter or remain has not expired or has been renewed and the period for which it has been renewed has not expired or in respect of whose leave to enter or remain an appeal is pending …; and
    (d) who has been ordinarily resident in the United Kingdom and Islands throughout the period since the person was granted leave to remain."
  30. Under paragraph 5 of Schedule 1 of the 2009 Regulations a person was eligible for a student loan if he fell within that definition, was ordinarily resident in England on the first day of the course and had been ordinarily resident in the United Kingdom and Islands throughout the three year period before then. Thus, it is not the case that all those with DLR benefitted under the 2009 Regulations but rather failed asylum seekers with DLR who could satisfy the three year ordinary residence test.
  31. The claimants' request for funding from BIS was governed by the 2011 Regulations. Had the 2009 Regulations remained in force Abiy would have qualified for a loan but Yonas would not. He would have been outside the scope of those Regulations because he could not satisfy the ordinary residence test. Although the claim includes no challenge to the three years ordinary residence test, Miss Mountfield has drafted amended grounds to cover the point and seeks leave to rely upon them on behalf of Yonas should it be necessary. Mr Sachdeva, who appears for BIS, recognises that such an argument might be joined at some stage. There is another outstanding claim for judicial review at the pre-leave stage which raises the point. But his clients have not yet responded to the challenge raised in the claimants' proposed amended grounds, which were provided during the adjournment between the two days of argument.
  32. Article 2 of Protocol 1

  33. Miss Mountfield submits that the failure of BIS to provide student loans to the claimants amounts to a violation of their rights under A2P1. The submission involves the proposition that the failure to provide public funding to the claimants in this case involves a breach of A2P1 by the state because they have been denied the right to education.
  34. The Strasbourg Court has considered alleged violations of A2P1 in very few cases. At paragraph 19.60 of Clayton and Tomlinson, The Law of Human Rights, 2nd edition 2009 the authors note that only 24 such cases had by then come before the Court. In none of those cases is there any support for the proposition that the State is under a positive obligation to provide financial support to students in higher education as part of its obligations under A2P1. Indeed in the Belgian Linguistics Case (No 2) (1968) 1 EHRR 252, 280, para 3 the Strasbourg Court said:
  35. "The negative formulation indicates … that the Contracting Parties do not recognize such a right to education as would require them to establish at their expense, or to subsidise, education of any particular type or at any particular level."
  36. In the years that followed there was a lively debate about the levels of education to which A2P1 applies. In Sahin v. Turkey the Grand Chamber considered the reach of A2P1 in a difficult case relating to a rule in Turkish universities that a woman wearing a headscarf would be denied access to lectures and examinations. The applicant was a Muslim medical student. She alleged that the rule which denied her access to the examinations violated A2P1. Between paras 134 and 142 the Grand Chamber noted that the essential purpose of the first sentence of A2P1 was to establish access to primary and secondary education, but that nevertheless institutions of higher education also some within the scope of A2P1. It added:
  37. "Although the Article does not impose a duty on the Contracting States to set up institutions of higher education, and State doing so will be under an obligation to afford an effective right of access to them."
    The Grand Chamber concluded that any institutions of higher education existing at a given time come within the scope of A2P1. In doing so it took a different approach from the Commission in earlier cases which had declared inadmissible a number of applications relating to institutions of higher education. Nonetheless, it considered the restriction in that case justifiable.
  38. Miss Mountfield points to the Grand Chamber's observation in Sahin in connection with A2P1 that the Convention is a living instrument in need of interpretation in the light of present-day conditions (para 136); and the willingness of the Strasbourg Court to interpret A2P1 in the light of other international instruments dealing with education, in support of her submission that A2P1 has the reach for which the claimants contend. But in my judgment to arrive at that conclusion would be to run ahead of the Strasbourg jurisprudence in a way which is impermissible – see R (Ullah) v. Special Adjudicator [2004] 2 AC 323 at para 20, per Lord Bingham.
  39. Article 14

  40. Miss Mountfield submits that even if the claimants are unable to rely directly upon A2P1 the funding of university education comes within the ambit of A2P1 for the purposes of article 14 of the Convention. Mr Sachdeva submits that the decision of the Court of Appeal in R (Douglas) v. North Tyneside Metropolitan District Council [2003] EWCA Civ 1847 is binding authority in this jurisdiction for the proposition that individual funding arrangements for students do not fall with the ambit of A2P1 for the purposes of article 14 of the Convention.
  41. The claimant in that case was in his late 50s. He enrolled on a course to obtain a Higher National Diploma as a mature student. He applied for a student loan but was refused because he was over 55. His claim was based upon article 14 of the Convention. The Court of Appeal noted that there were two alternative sources of funding available. First, there was a scheme for fee waiver and secondly a hardship fund. The claimant in fact entered and completed his further education. In paragraph 19 of his judgment Scott Baker LJ, with whom Jonathan Parker and Thorpe LJJ agreed, identified the issues for decision in this way:
  42. "(1) Whether article 2 of the First Protocol … extends to tertiary education; (2) whether, if it does, the arrangements for loans to students fall within in; and (3) if they do, whether those arrangements are justifiable so that they do not contravene the anti-discrimination provision in article 14."
    He rejected the argument that A2P1 had nothing to do with tertiary education. On the second issue the conclusion was:
    "… the claimant has failed to show that the loan arrangements under the Student Support Regulations are within the scope of article 2. Accordingly article 14 of the Convention is not engaged and the Secretary of State is not required to justify any age discrimination in the provision of those loans." (para 65)

    A little earlier Scott Baker LJ said:

    "In my judgment although the tentacles of article 14 stretch to the field of higher education they do not, as a matter of course stretch to the funding for it. If the funding arrangements had been specifically designed to discriminate against a particular category of person that might have been another matter, for then the arrangements could then be said to be necessarily concerned with the right to education. But that is not this case. The funding arrangements here are not within the right." (para 59)
  43. I do not read these paragraphs as providing a hard edged rule that university funding arrangements for individual students are necessarily outside the reach of article 14. The facts of Douglas were very particular and appear to have influenced the conclusion in that case, in particular that the absence of the loan made no difference to the claimant's ability to complete the course. The claimants in this case allege that the funding arrangements under the 2011 Regulations, were designed to discriminate against foreign nationals who did not have ILR, were not refugees and did not have humanitarian protection.
  44. R (Hurley and Moore) v Secretary of State for Business Innovation and Skills [2012] EWHC 201 (Admin) concerned a challenge to the rise in university fees (from about £3,000 per annum to a maximum of £9,000 for domestic students). It was argued that the increase amounted to a breach of A2P1 and was also discriminatory, and thus in breach of article 14, because of its disproportionate impact on the poor. The applicability of article 14 was accepted without objection by BIS. The factual situation was different from Douglas. It concerned the imposition of fees, rather than how students might be able to discharge them. There was a further argument that BIS had breached the public sector equality duty. The Divisional Court rejected the claims under A2P1 and article 14 but accepted that BIS had failed fully to carry out the equality duty.
  45. The approach to article 14 in these circumstances is illuminated by Ponomaryov (supra). The Court considered that the requirement to pay fees fell within the ambit of article 14 because it was within the general scope of A2P1. In coming to that conclusion the Court noted that secondary education is covered by that provision and that, having set up secondary schools, the state was under a duty to afford access to them. The applicants had enrolled at secondary school and were later required to pay fees. For that reason, the Court concluded that the complaint fell within the scope of A2P1 for the purposes of article 14 (para 49). It concluded that the applicants were treated less favourably than others at secondary school by reason of their nationality and immigration status (an 'other status' for the purpose of article 14). It regarded the two groups as analogous. Mr Sachdeva argues that the claimants are not in an analogous position with any of those who are entitled to receive student loans under the 2011 Regulations, but I do not accept that can be right. There are differences between the immigration status of the claimants and those granted asylum or humanitarian protection, but it seems to me that they are all in an analogous situation so far as tertiary education is concerned.
  46. The Court went on to consider whether the difference in treatment had an objective and reasonable justification. It noted (para 52) that there was a wide margin of appreciation in assessing whether and to what extent differences in otherwise similar situations justify different treatment when it comes to general measures of economic and social strategy (para 52). It accepted that the right to education calls for regulation by the state including by reference to the resources available (para 53). The Court continued:
  47. "The Court must solely determine whether, once a State has voluntarily decided to provide such education free of charge, it may deny that benefit to a distinct group of people, for the notion of discrimination includes cases where a person or group is treated, without proper justification, less favourably then another, even though the more favourable treatment is not called for by the Convention. …
    54. Having thus clarified the limits of its inquiry, the Court starts by observing that a State may have legitimate reasons curtailing the use of resource-hungry public services – such as welfare programmes, public benefits and health care – by short term and illegal immigrants, who, as a rule, do not contribute to their funding. …
    55. Although similar arguments apply to a certain extent in the field of education … they cannot be transposed there without qualification. It is true that education is an activity that is complex to organise and expensive to run, whereas the resources that the authorities can devote to it are necessarily finite …It is also true that … the State must strike a balance on the one hand, between the educational needs of those under its jurisdiction, and, on the other, its limited capacity to accommodate them. However, the Court cannot overlook that, unlike some other public services, … education is a right that enjoys direct protection under the Convention. It is also a very particular type of public service, which not only benefits those using it but also serves broader societal functions. …
    56. For the Court, the State's margin of appreciation in this domain increases with the level of education, in inverse proportion to the importance of that education for those concerned and for society at large. Thus, at the university level, which so far remains optional for many people, higher fees for aliens – and indeed fees in general – seem to be commonplace and can, in the present circumstances, be considered fully justified. The opposite goes for primary schooling, which provides basic literacy and numeracy … and is compulsory in most countries.
    57. Secondary education, which is at issue in the present case, falls between the two extremes. … However, the Court is mindful of the fact that with more and more countries now moving towards what has been described as a "knowledge-based" society, secondary education plays an ever increasing role in personal development and in the social and personal integration of the individuals concerned …
    58. These considerations militate in favour of the Court's applying stricter scrutiny to the assessment of the proportionality of the measure affecting the applicants.
    59. In assessing the proportionality the Court does not need, in the very specific circumstances of this case, to determine whether the Bulgarian State is entitled to deprive all irregular residing aliens from educational benefits – such as free education – that it has agreed to provide to its nationals and certain limited categories of aliens. It is not the Court's role to consider in the abstract whether national law confirms with the Convention … The Court will therefore primarily have regard to the personal situation of the applicants. "
  48. Mr Sachdeva submits that the provision of a loan to pay fees is one removed from the imposition of fees itself, and so should be taken as too remote to fall within the scope of A2P1 for the purposes of article 14. To my mind that is a technical approach which does not accord with the broad view the Strasbourg Court takes on such matters. Nobody can have access to university education unless funding is found to discharge the fees. State support for the discharge of fees by way of loans will be, for a very large number of people, the only practical way of paying them. It is therefore an important feature in providing practical and effective access to university education. For this reason I do not accept that the current arrangements relating to funding are too remote from the right guaranteed by A2P1 to fall outside its ambit and therefore to be considered by reference to article 14.
  49. A very large volume of authority has been cited by both Miss Mountfield and Mr Sachdeva on the question of what margin of appreciation the Strasbourg Court would allow the state in this discrimination case, and the allied question of the extent to which this Court should recognise a wide or narrow area of discretionary judgment to the executive in domestic law terms. Miss Mountfield submits that a fine, evidenced based inquiry into proportionality and justification is required, of the sort undertaken in the context of article 8 and an immigration rule which prevented a husband from joining his wife in the United Kingdom in R (Quila) v. Secretary of State for the Home Department [2012] 1 AC 212. Mr Sachdeva submits that the provision of loans to students is far removed from the heart of A2P1, that the 2011 Regulations are measures relating to economic and social strategy and are concerned with tertiary education so that the margin of appreciation in Strasbourg terms would be very wide.
  50. The passages from the judgment of the Strasbourg Court in Ponomaryov cited above show that the starting point for the Court was the wide margin of appreciation to which Mr Sachdeva refers. It found reasons, in connection with secondary education, to apply a stricter scrutiny although, with respect to the Court, it is not entirely clear how far from the starting point as a matter of principle it considered it appropriate to move. That said, however, in the arena of university education the Court explicitly recognised a wide margin of appreciation. In Hurley and Moore at para 64 Elias LJ said:
  51. "I do not accept the claimants' submission that the Ponomaryov case suggests that the normal deference that might be shown to resource decisions ought not to apply to higher education."

    I too reject Miss Mountfield's submissions to similar effect in this case.

  52. Humphreys v. Revenue and Customs Commissioners [2012] 1 WLR 1545 was a case concerning article 14 read with A1P1 (peaceful enjoyment of possessions), an area where the Strasbourg Court has generally accorded a wide margin of appreciation. Between paras 15 to 20 of her judgment, Lady Hale discussed the test for justification in that context: manifestly without reasonable foundation. The same test had been applied by the Supreme Court in R (RJM) v. Secretary of State for Work and Pensions [2009] AC 311 in the context of income support to rough sleepers. Lord Neuberger applied that test and asked himself whether the view taken by the executive was 'unreasonable'. And added:
  53. "The fact that there are grounds for criticising, or disagreeing with, these views, does not mean that they must be rejected. Equally, the fact that the line may have been drawn imperfectly does not mean that the policy cannot be justified. Of course, there will come a point where the justification for a policy is so weak, or the line has been drawn in such an arbitrary fashion, that, even with the broad margin of appreciation accorded to the state, the court will conclude that the policy is unjustifiable."
  54. By analogy with these cases, and in the light of the approach indicated by the Strasbourg Court in Ponomaryov to questions of funding for tertiary education, the question on justification is whether the measure is manifestly without reasonable foundation.
  55. Miss Mountfield was critical of the slow way in which BIS provided pleadings and evidence in this case relating to justification, which took little notice of directions made by the Court, and even now remains lacking in detail. That criticism had some justification.
  56. The position which evolved was this. The Summary Grounds of Defence identified one justification of the change in 2011 as being increased pressure on the student support package. The second identified was that the restriction to those with humanitarian protection was justified because those with DLR which expires before the course about to be undertaken finishes might be unable to complete it and stay on afterwards. In those circumstances the United Kingdom would not benefit from their university education. The Detailed Grounds of Defence repeat those points in paragraph 106 and 107. Paragraph 103 met a different argument advanced by the claimants:
  57. "The claimants attempt to rely upon a race discrimination case – Elias – to justify the proposition that the concept of a broad margin of appreciation is of no assistance where there is no evidence that the Defendant has given any proper advance consideration to the differential impact of the change. At the time the change was made, consideration was given by officials to the impact on certain groups during the period when consideration was being given to the change, August 2010 – Jan 2011. There was discussion with the Home Office and UKBA and also the Refugee Council on 26 Oct 2010. In July 2011 officials met the Refugee Children's Consortium and the Secretary of State met with them on 13 January 2012. Specific representations were made regarding [unaccompanied asylum seeking children] but no grounds were provided such that the Defendant considered that this group should be treated exceptionally."
  58. A witness statement from Paul Williams, a senior official in the Department, was served with the Detailed Grounds. He explained that DLR is only temporary leave and that the rationale of the policy was to concentrate limited funds on those who have the current right to reside permanently and those in need of international protection (subject to the requirement of three years ordinary residence for some). He indicated that it was recognised that this would make it more difficult for some people to attend university but that it was a financial issue. He also explained that if the loans were extended to those with DLR, it would be difficult to exclude others temporarily in the United Kingdom, including asylum seekers and those on the Highly Skilled Migrant Programme. The government's view was that those with a permanent right of residence were more deserving of limited funds. Furthermore, those here permanently could remain and work in the United Kingdom and thereby contribute to the economy. In 2009 11,805 people were granted DLR (excluding dependents). He hypothesised that if 2,400 additional applications for student support would flow from extending the scope of entitlement as the claimants wanted the total immediate annual costs would be over £100 million. He explained why it was the Departmental view that inserting a general discretion into the Regulations would be unworkable.
  59. Miss Mountfield submits that the financial figures provided are meaningless because the postulated 2,400 extra applications for loans a year is no more than an assumption. There is substance in that criticism. However, given the rate at which grants of DLR are made it is inevitable that the potential for further demands on the budget of BIS is substantial.
  60. Paragraph 103 of the Details Grounds was unsatisfactory. 'Certain groups' was not defined. The reference to the Home Office and UKBA took the matter nowhere, and the most that could be inferred from the references to the charities was that there was some consideration given to the position of unaccompanied asylum seeking children. Additional evidence was provided by Gillian Walden, a policy advisor at BIS. She explained that 'certain groups' was a reference to those with different types of DLR. She also described a meeting on October 2010 with the Refugee Council and in July 2011 with the Refugee Children's Consortium. Further representations from that organisation were received in November 2011. They provided some information about numbers within the group of unaccompanied asylum seeking children. About 3,000 applications for asylum are received a year from children in this group, but only 10% are successful. It follows that the successful 10% would be eligible for loans under the 2011 Regulations but the balance would not. The Minister for Universities and Science wrote twice to the Chair of that organisation. In his letter dated 10 February 2012 he said:
  61. "It has been the policy of successive governments that students must be resident here without being subject to any restriction under the immigration laws on the period for which they may stay, if they are to qualify for home fee status and student support, apart from certain exceptions.
    We recently reviewed the position of students who hold [DLR], noting that this is temporary leave granted for a limited period only. We concluded that the Government should provide support only for holders of temporary leave to remain who are in need of international protection i.e. those awarded either refugee status or Humanitarian Protection. In reaching this decision, we took account, in particular, of the financial constraints facing the student finance budget and the requirement to set clear, understandable criteria for the division between those who would be eligible and those who would not, and the fact that, given the maximum period that [DLR] can be granted is three years, few of those granted such leave would be in a position to complete the standard length undergraduate course.
    I recognise that you felt the change made by the regulations has had a particularly adverse effect on unaccompanied asylum seeking children, but having considered the briefing you have provided, do not believe there is a strong enough case to make a special exemption for this groups of individuals.
    Whilst I understand that making a special exemption to [unaccompanied asylum seeking children] who hold [DLR] would only involve a very small number of students, we believe that it would not be possible to make this concession without extending it to a wider group. This is not a change we are able to consider during these difficult economic times."
  62. The Minister maintained that position in the face of further representations.
  63. Miss Mountfield criticises the basis upon which BIS introduced the changes which are now contained in the 2011 Regulations as lacking a proper evidential basis. There was, she submits, an inadequate analysis of the impact of the changes on those with DLR. They impact very severely upon those with DLR (including the claimants) and are disproportionate to any legitimate aim which BIS may have had.
  64. I shall return to the special position of the claimants now that they have the benefit of the judgment against the Council. Even were the impact of the changes reflected in the 2011 Regulations as they first suggested them to be, namely that the absence of loans denies them the opportunity to go to university, I am satisfied BIS has established that they were justified for the purposes of article 14. The two central reasons advanced by BIS for the changes are first the need to husband scarce resources and secondly to spend the money available on those who one could be sure were entitled to remain to benefit the economy. Miss Mountfield drew parallels with EU nationals and others who might not stay even though they had been provided with loans, and suggested that BIS should have obtained statistical evidence relating to that. However, as the Strasbourg Court itself recognised in Ponomaryov at para 54 differentiating between EU nationals and others was based on a reasonable and objective justification, because the EU forms a special legal order. Those two central reasons, amplified by the evidence and the explanation set out in the Minister's letter provide ample justification for the discrimination of which the claimants complain. The measure is not manifestly without reasonable foundation. There is an additional suggestion that the scheme should include a discretion to provide a loan in circumstances where the applicant does not meet the criteria but is otherwise deserving of support. Mr Williams objects that an exceptions scheme would undermine the objective of saving public money, but would in any event require criteria to be identified against which to judge the exceptionality. The Minister refers to the difficulty of distinguishing one set of individuals from another for these purposes. Miss Mountfield suggests that at least the factor engaged in this case, namely that the applicant in question was likely to be granted ILR at some stage, should be applied.
  65. This is an area where the application of clear parameters for eligibility for a loan makes sense. Staff in the Student Loans Company are called upon to determine whether the applicant in question satisfies the criteria. There is no discretionary judgment to be made. A narrowly carved out exception of the sort contended for would be difficult to apply, not least because it would require staff dealing with the loans to second guess future decisions of UKBA relating to immigration status. Mr Williams description of the suggestion being unworkable is apt.
  66. Before turning to the special position in which the claimants find themselves, there is an additional factual matter which reinforces my view that the measures are justified. The claimants say that they will almost certainly be granted ILR in due course. The view of the claimants' advisers is that they will need to extend their DLR at the end of 2014 but can then apply for ILR in 2015. As Collins J observed, it seems likely that ILR will be granted. The impact of the measures at most is to delay, rather than deny, the claimants the immediate opportunity to begin a university course, albeit for perhaps four years.
  67. However, the claimants fall within the category of those in the United Kingdom with DLR who were 'unaccompanied asylum seeking children'. Local authorities assume parental responsibility for this group of children by reason of the 1989 Act. The effect of today's judgment of the Court of Appeal is to require the Council to support the claimants to 'the extent that their welfare and educational and training needs require it'. There is no evidence before the Court which suggests that in crafting the categories of individuals who would be eligible for a loan under the 2011 Regulations BIS had in mind the duties of other public bodies under the 1989 Act. But those duties cannot be ignored in considering any question of discrimination said to be the result of 2011 regulations. It cannot be said that the inability of these claimants to take out a loan from the Student Loans Company pursuant to the 2011 Regulations has the result of denying them the opportunity to take up the offers they have received to go to university. They would be impeded in that course only if the Council lawfully decided to refuse support under the 1989 Act. Were that to be the eventual outcome, in my judgment it would be impossible to sustain an argument that the overall picture is one of unlawful discrimination. The points in justification of the policy already referred to would be available with the gloss that a lawful decision had been made by the Council that the individual claimant's educational needs did not require its financial support.
  68. In these circumstances the claimants have failed to establish the grounds upon which the claim for judicial review is advanced and it must be dismissed. In the light of my conclusions the additional point, namely that Yonas does not have three years ordinary residence, adds nothing. There is no purpose in giving permission to amend the claim form to pursue that point in this case.

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