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England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Tigere, R (On the Application Of) v Secretary of State for Business, Innovation & Skills -And- Student Loans Company Ltd  EWHC 2452 (Admin) (17 July 2014)
Cite as:  EWHC 2452 (Admin)
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QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| THE QUEEN ON THE APPLICATION OF BEAURISH TIGERE
|- and -
|SECRETARY OF STATE FOR BUSINESS, INNOVATION & SKILLS
STUDENT LOANS COMPANY LTD
Mr Steven Kovats QC & Mr Vikram Sachdeva (instructed by Treasury Solicitors) for the Defendant
Hearing dates: 2nd, 3rd & 4th July 2014
Crown Copyright ©
Mr Justice Hayden :
"I have no money myself to pay the amount required for fees. The only other person who offers me financial support is my mother. My mother is a support worker and earns between £100 and £220 per week. The amount she earns depends upon how many hours she is able to work that week. With her income, she supports not just me but also her sister and her two children who also live with us and are not employed. My mother is therefore supporting five people on a very small wage. She is not in a position to provide me with money for university fees.
I have been asked if it would be possible for my mother to take out a loan from a bank. I do not think my mother earns enough money to be able to get and make payments on a loan. Nor do I want to put her under pressure to do so. "
"It was after the time when I did this online application. When there were lots of questions about my immigration status in the application and the requests for further information, my mother and I became confused about what the problem was and so contacted a friend of ours who worked with migrants and asylum seekers in the York area. She did some research and told us she thought I might not get a loan because of my immigration status. She then arranged for us to be put in touch with my current solicitor. I met with him for the first time on 20 May 2013 and he confirmed that it was likely I would be refused a loan due to my immigration status. "
"in the light of my conclusion in Kebede (if they survive the scrutiny of the Court of Appeal) this claim (Tigere) is unarguable."
III. Summary of procedural history
|2001-2003||C arrived in UK with her parents and was granted leave as a dependent of her student father, the leave expiring in early 2003 and her father returning to Zambia, C and her mother remaining here as overstayers.|
|6th September 2010||UKBA served on C and her mother notice that they are liable to removal from the UK, and granted them temporary admission.|
|30th January 2012||C is granted discretionary leave to remain until 29/01/15|
|10 June 2013||The Claimant sent a pre-action letter outlining grounds 1 and 2 of the claim.|
|19 June 2013||The Defendant responded indicating that it opposed the claim on the same basis as in the Kebede proceedings.|
|24 June 2013||The claim was issued with an application for expedition. The application for expedition was granted by an Order of Mrs Justice Carr.|
|2nd July 2013||The Defendant filed an Acknowledgement of Service raising a further purported ground of ineligibility relating to the Claimant's compliance with the three-year ordinary residence requirement.|
|8 July 2013||The Defendant sent a letter seeking to expand on the additional ground of ineligibility. The letter also suggested that the Claimant was ineligible because she was not 'a failed asylum seeker'.|
|11 July 2013||The Claimant filed a Reply and application to amend her grounds of claim to add grounds 3 and 4.|
|June-July 2013.||An initial attempt was made by the Claimant's representatives via correspondence and an application to the Court to join the claim to the Kebede claim then already listed for a substantive hearing on 16 July 2013. However, this was aborted after the Defendant raised the further two grounds for disputing her eligibility, whereupon it was recognized that it was no longer realistic for both the claims to be heard within the existing listing.|
|15 July 2013||Burnett J formally refused the application for joinder due both to inadequate hearing time and because the facts and issues in the claims were not identical in all respects.|
|Also 15 July 2013||Mr Justice Haddon-Cave ordered that the claim be stayed until judgment in Kebede and ordered an exchange of skeleton arguments from the Claimant and Defendant addressing the Kebede judgment when it was delivered.|
|16, 26 and 31 July 2013||Kebede was heard over two days. Burnett J rapidly delivered judgment on the last day of the Court term, dismissing the claim. He refused permission in the present claim on the basis of his conclusions in that judgment ('if they survive scrutiny in the Court of Appeal') and directed that any permission hearing in the present case be listed after the conclusion of the Kebede proceedings in the Court of Appeal.|
|6 August 2013||Unfortunately, the Order refusing permission was only received by the Claimant's representatives on 9 August 2013 and, in the meantime on 6 August 2013, the Claimant had filed a skeleton in accordance with the directions of Haddon-Cave J addressing the judgment in Kebede.|
|15 August 2013||The Claimant's representatives were unsure if the Order of Burnett J had been made in the knowledge of the intervening Order of Haddon-Cave J of 15 July 2013 and therefore applied to have the Burnett J Order set aside on the same day as it was received, in parallel with an application to seek an oral renewal hearing if the application to set aside was unsuccessful. The application to set aside was refused by Mr Justice Lewis by an Order dated 15 August 2013.|
|16 September 2013||Burnett J granted permission in the Kebede case to appeal to the Court of Appeal.|
|December 2013||The appeal in Kebede was discontinued.|
|13 March 2013||In accordance with the Order of Burnett J, there was an oral renewal hearing of the permission application in this case. Supperstone J granted permission on all grounds.|
The Student Loan Scheme
Part 2 of Schedule 1 to the 2011 Regulations contains 8 categories, as follows.
The basic category is the one in paragraph 2: persons who are settled in the United Kingdom and who have been ordinarily resident in the UK throughout the three year period preceding the first day of the academic year of the course.
Part 1 (paragraph 1) of Schedule 1 is the interpretation provision for the Schedule. "Settled" (sub-para.1) has the meaning given by s.33(2A) of the Immigration Act 1971, namely a person who is ordinarily resident here without being subject under the immigration laws to any restriction on the period for which he may remain.
For the purposes of Schedule 1 to the 2011 Regulations, a person is not to be treated as ordinarily resident in a place unless that person lawfully resides in that place: paragraph 1(2A).
Persons with a right of permanent residence here under Directive 2004/38/EC on the right of citizens of the Union and their family members to move and reside freely within the territories of the Member States (OJ L158 30 April 2004 p.77): reg.2(1) and Schedule 2 paragraph 3. It was established in Case C-209/2003 R (Bidar) v Ealing London Borough Council  QB 812 that the UK could impose a condition of 3 years ordinary residence but not of settlement in respect of EU students.
Refugees and their family members (paragraph 4) and persons granted humanitarian protection and their family members (paragraph 5). The UK must under EU law grant access to the education system to such persons under the same (or no less favourable) conditions as nationals (if minors) or as third country nationals legally present (if adults): Directive 2004/83/EC on minimum standards for the qualification and status of third country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted (OJ L304 30 September 2004 p.12): reg.2(1); Schedule 2 paragraph 3. Article 22(2) of the 1951 Geneva Convention relating to the Status of Refugees contains a like obligation.
The other five categories all concern persons with rights under EU law to be treated no less favourably:
EU migrant workers: paragraphs 6 and 7;
persons returning here after having exercised EU rights of free movement: paragraph 8;
EU nationals pursuing their education here: paragraphs 9 and 10;
children of Swiss nationals, who have like rights pursuant to the 1999 Agreement between the EU and its Member States and the Swiss Confederation: paragraphs 1(1) and 11;
children of Turkish workers (paragraph 12), who have like rights under article 9 of the 1980 EEC-Turkey Association Agreement, as was established in Case C-374/03 Gurol v Bezirksregierung Köln  ECR I-6199.
It is common ground that the claimant does not fall within any of the categories set out in Part 2 of Schedule 1.
i. Ground 1: the blanket exclusion from eligibility predicated entirely on the Claimant limited leave to remain it is contended is a disproportionate interference with her right of access to education under Article 2, Protocol 1 ('A2P1').
ii. Ground 2: the blanket exclusion has the effect of discrimination unjustifiably against the Claimant on the grounds of her immigration status and ultimately therefore linked to her national origin.
iii. Ground 3: if and to the extent it is suggested that the Claimant's exclusion from eligibility for a student loan arises because she has not made a failed claim for asylum that, it is contended, is irrational and would violate both her rights under A2P1 and Article 14 which protects discrimination on grounds of race amongst other matters.
iv. Ground 4: the Claimant contends that she meets the statutory requirements of three years lawful ordinary residence by virtue of her period of residence following a grant of temporary admission and thereafter a grant of a leave to remain. This latter ground strikes me as highly technical but in any event the Claimant submits that exclusion from eligibility on that basis would violate A2P1 and/or A2P1 and Article 14 where there was no culpability by the Claimant in respect of her immigration status.
i. it is agreed that 'higher education' is capable of falling within the ambit of Protocol 1, Article 2 ECHR: Şahin v Turkey 44 EHRR 5;
ii. it is now conceded by the Defendant that eligibility for financial support for higher education also falls within the ambit of Protocol 1, Article 2 ECHR see R (Kebede & another) v Secretary State of Business, Innovation and Skills  EWHC 2396 (Admin); R (Hurley & Moore) v Secretary of State of Businees Innovation and Skills  EWHC 2502; Ponomaryov v Bulgaria  ELR 491 (App No 5335/05, BAILII:  ECHR 972). The Secretary of State had not made this concession prior to this case. Whilst there may be differences between the immigration status of the Claimant here and those who are guaranteed asylum or humanitarian protection the situations are plainly analogous so far as higher education is concerned;
iii. it is 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;
iv. it is a fact that education is a right that enjoys direct protection under the Convention, being expressly enshrined in Article 2 of Protocol 1;
v. whilst reluctant to extrapolate from (iv) above that Article 2 has a 'special status' as contended by the Claimant, the Defendant nonetheless acknowledges that education is a very particular public service, in that it has the potential to promote personal achievement as well as to benefit society more broadly. To place this in context and because it has real resonance for the issues in this case, I set out here the salient paragraphs of the judgment in Ponomaryov v Bulgaria  ELR 491 (supra), BAILII:  ECHR 972.
54. Having thus clarified the limits of its inquiry, the Court starts it by observing that a State may have legitimate reasons for 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. It may also, in certain circumstances, justifiably differentiate between different categories of aliens residing in its territory. For instance, the preferential treatment of nationals of Member States of the European Union – some of whom were exempted from school fees when Bulgaria acceded to the Union (see paragraph 32 above) – may be said to be based on an objective and reasonable justification, because the Union forms a special legal order, which has, moreover, established its own citizenship (see, mutatis mutandis, Moustaquim v. Belgium, 18 February 1991, § 49 in fine, Series A no. 193, and C. v. Belgium, 7 August 1996, § 38, Reports 1996 III).
55. Although similar arguments apply to a certain extent in the field of education – which is one of the most important public services in a modern State – 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 in deciding how to regulate access to education, and in particular whether or not to charge fees for it and to whom, a State must strike a balance between, on the one hand, 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 (see Nitecki v. Poland, no. 65653/01, 21 March 2002, and Pentiacova and Others v. Moldova (dec.), no. 14462/03, ECHR 2005 I, regarding health care; Budina v. Russia (dec.), no. 45603/05, ECHR 2009 ..., BAILII:  ECHR 1104; Carson and Others, cited above, BAILII:  ECHR 1194, § 64; Zeïbek, cited above, §§ 37 40; and Zubczewski v. Sweden (dec.), no. 16149/08, BAILII:  ECHR 111, 12 January 2010, regarding pensions; and Niedzwiecki v. Germany, no. 58453/00, BAILII:  ECHR 928, §§ 24 and 33, 25 October 2005; Okpisz v. Germany, no. 59140/00, BAILII:  ECHR 927, §§ 18 and 34, 25 October 2005; Weller v. Hungary, no. 44399/05, BAILII:  ECHR 530, § 36, 31 March 2009; Fawsie, cited above, §§ 27 28; and Saidoun, cited above, §§ 28 29, regarding child benefits) education is a right that enjoys direct protection under the Convention. It is expressly enshrined in Article 2 of Protocol No. 1 to the Convention (see Case "relating to certain aspects of t[\1]he laws on the use of languages in education in Belgium" (merits), cited above, pp. 30 31, § 3). It is also a very particular type of public service, which not only directly benefits those using it but also serves broader societal functions. Indeed, the Court has already had occasion to point out that "[i]n a democratic society, the right to education ... is indispensable to the furtherance of human rights [and] plays ... a fundamental role..." (see Leyla Şahin, cited above, § 137). Moreover, in order to achieve pluralism and thus democracy, society has an interest to integrate minorities (see Konrad and Others, cited above).
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 – as well as integration into and first experiences of society – and is compulsory in most countries (see Konrad and Others, cited above).
57. Secondary education, which is at issue in the present case, falls between those two extremes. That distinction is confirmed by the difference of wording between paragraphs (a), (b) and (c) of Article 28 § 1 of the United Nations Convention on the Rights of the Child, the first of which enjoins States to "[m]ake primary education compulsory and available free to all", whereas the second and the third merely call upon them to "[e]ncourage the development of different forms of secondary education ... and take appropriate measures such as the introduction of free education and offering financial assistance in case of need" and to "[m]ake higher education accessible to all on the basis of capacity by every appropriate means" (see paragraph 33 above). It is also confirmed by the differentiation between those three levels of education in the International Covenant on Economic, Social and Cultural Rights (see paragraph 34 above). 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 successful personal development and in the social and professional integration of the individuals concerned. Indeed, in a modern society, having no more than basic knowledge and skills constitutes a barrier to successful personal and professional development. It prevents the persons concerned from adjusting to their environment, and entails far reaching consequences for their social and economic well being.
These passages highlight the manner in which the parties must evaluate the right to education. There can be no logical divagation from them and accordingly and on a true construction of the parties' submissions I regard these propositions as uncontroversial. (Of course, how they are applied is really the central dispute in this case.)
vi. It is also agreed, as it must be on the authorities, that a Member State's margin of appreciation in this domain increases with the tier of education concerned, so that a wider margin will be afforded at University level (which is ultimately a matter of personal choice and still regarded by many as a privilege) than primary schooling – universally concerned with basic literacy and numeracy (see Konrad and Others v Germany  ELR 435); Mr Kovats QC submits that the funding of applicants for University education is essentially a matter of economic and social policy for the country concerned, relying on R (Hurley) v Secretary of State for Business, Innovation and Skills  EWHC 201 (Admin);  HRLR 13 ; Humphrey v Revenue and Custom Commissioners  UKSC 18;  1 WLR 1545. Again on this point, there can be no sensible contrary argument, as Ms Mountfield acknowledges.
vii. The Claimant has filed evidence in this case in the form of a statement by Miss Alison East of Coram Childrens Legal Centre (CCLC). Founded in 1981 the group is part of an independent charity working in the United Kingdom and around the world to protect and promote the rights of children. The stated aim is to uphold children's human rights in law, policy and practice within the context of the UN Convention on the Rights of the Child and the European Convention on Human Rights through the provision of direct legal services, the publication of free legal information and guidance, research and policy work, law reform, training and international consultancy on children rights. Miss East is a solicitor with the Migrant Children's Project at CCLC. During the course of her work Miss East has dealt with numerous inquiries relating to higher education for young people with various different types of immigration status. At paragraph 8 of her statement she observes "the most common issue that arises in the queries we receive on higher education is young people with discretionary leave or limited leave who cannot access student finance and are ineligible for home fee status". She sets out four clearly identified categories and comments on the experience of many in the category of the Claimant here. At paragraph 10 she states, referring to those granted sum form of discretionary leave to remain either on the basis of Article 8 ECHR or otherwise on the basis of ling residence:
'In our experience many of the young people [in those categories] have been in UK for considerable amounts of time and sometimes most of their lives. Some of the cases raised questions as to why these young people do not already have indefinite leave to remain or British citizenships. In our experience this may because they were unaware of their irregular immigration status. It is maybe because steps were not taken for them when they were children to secure their immigration status. If they were in the care system, there may have been failures on the part of social workers to pick up and resolve immigration issues. It is rarely, if ever, a result of the young person's own actions."
"Looking at the effect of these obstacles on young people, Miss East notes:
"Our experience at CCLC suggests that young people find not being able to go to University, when that would be natural educational progression alongside their peers, is incredibly difficult. They have worked hard to do well at school and at college, and aspire to achieve the best they can. They have formed expectations about how the education system and wider society is going to treat them if they are able to meet examination performance requirements and feel shocked and disappointed to discover that their plans cannot be carried out for a reason unrelated to their academic endeavour."
Miss East continues :-
"Seeing their friends and peers go to University when they cannot and being aware of being held back for as long as 10 years in pursuing qualifications that are essential in a competitive job market, inevitably causes these young people to feel marginalised… they feel that it is deeply unfair as they are not asking for a grant of money but only to be loaned the money which will allow them to progress, alongside their peers, in well paid work so that they can pay back that loan."
The force of this analysis is irresistible and the Defendant, sensibly, has not sought to put it to the assay. He need not do so to make good his case.
viii. It is also submitted that the Claimant's ineligibility for a loan has the likely effect only of delaying her access to higher education rather than denying it. This is Mr Kovats' central submission with which Ms Mountfield is driven to agree. At least arguably implicit in the proposition though is the tentative recognition that in due course it is likely the Claimant will indeed get ILR. Ms Mountfield says that for this Claimant with her exemplary record and high degree of integration into UK life it would require either some catastrophic and entirely out of character criminal offence to be committed by her or, as she puts it, a seismic shift in our understanding of the reach of Article 8 for Claimant to be unsuccessful in achieving ILR. Whilst Mr Kovats holds fast to his submission that it would be entirely wrong to predict the outcome of the decision of Secretary of State there seems to be, nonetheless, a tacit level of recognition about the Claimant's positive future prospects of achieving ILR. I think Ms Mountfield is correct to advance C's prospects in the way she does.
When will the Claimant become eligible for the loan scheme?
The relevant parts of the Claimant's document read as follows:
"Individuals granted DL on a date prior to and including 8 July 2012 may apply to extend that leave when their period of DL expires….
Applicants granted Discretionary Leave before 9 July 2012
Those who, before 9 July 2012, have been granted leave under the DL policy in force at the time will normally continue to be dealt with under that policy through to settlement if they qualify for it (normally after accruing 6 years continuous DL). Further leave applications from those granted up to 3 years DL before 9 July 2012 are subject to an active review."
"[DL is granted outside the Immigration Rules. It must not be granted where a person qualifies for asylum, [humanitarian protection], or where there is another category within the Immigration Rules under which they qualify."
"From 9 July 2012 DL must not be granted for Article 8 family or private life reasons."
"…spent at least half of his life living continuously in the UK (discounting any period of imprisonment)."
I set out the Defendant's short submissions in full:
a. that immigration decisions are for the Secretary of State for the Home Department (acting through the UK Border Agency), not for the Defendant and the Defendant cannot, either in fact or in law, second guess future immigration decisions that the Home Office might make; and
b. that the Defendant cannot anticipate how or when the Secretary of State for the Home Department may change current immigration policy, including transitional arrangements; and
c. that the following paragraphs of this note represent the understanding of the Defendant and are not to be taken as representing or as approved by the Secretary of State for the Home Department.
"Applicants granted Discretionary Leave before 9 July 2012
Those who, before 9 July 2012, have been granted leave under the DL policy in force at the time will normally continue to be dealt with under that policy through to settlement if they qualify for it (normally after accruing 6 years continuous DL). Further leave applications from those granted up to 3 years DL before 9 July 2012 are subject to an active review."
(i) the parties inability to answer a question which this Court and, in my judgement, this Claimant is reasonably entitled to ask and to have answered with some clarity ;
(ii) the Defendant's own emphasis on the fluidity of the current immigration policy, including the transitional arrangements and the clear caveat that the document is authorised only by the Secretary of State for BIS and not the Secretary of State for the Home Department,
serve to identify in stark terms that what is in contemplation here is a blanket exclusion from eligibility coupled with uncertainty as to how long that exclusion will endure.
'to promote the education of the people of England and Wales'.
This simple statement of objective, it is argued, in effect sets the mood music for all the legislation that follows. It is, as Mr Kovats puts it, a legislative philosophy which emphasizes the priority to be given to educating the people of England and Wales.
Of course, as is recognised, the Act did not contain a definition of what was meant by that phrase 'the people of England and Wales'. The 1958 Act took up the concept of 'ordinary residence', the Education Act 1962 amplified that concept by cross reference to the Education (Miscellaneous Provision) Act 1953. The Teaching and Higher Education Act 1998 made reference to changes to the funding of higher education. The first regulations made under the 1998 Act were the Education (Student Support) Regulations SI 1998/2003.
269 "Anti-discrimination legislation has implications for the administration of justice. When adjudicating, in accordance with the law, on cases involving alleged discrimination, judges have a role to play in the process of transforming society from one in which inappropriate distinctions have in some cases been drawn between individuals based purely on their race, gender or other grounds to a society in which, through the integration of laws prohibiting discrimination in specified ways, each individual is valued and treated equally."
270 "The adverse effects of unlawful discrimination are manifold. Discrimination can have a severe negative psychological effect on the individual involved, as well as a loss of dignity and self-esteem, and induce a sense of alienation. This sense of alienation can lead to a mistrust of institutions, such as the police or the justice system. This mistrust is detrimental to social cohesion. The co-operation of minority groups is particularly important in the fight against crime and terrorism (see for example per Lord Hope in R (Gillan) v Commissioner of Police for the Metropolis  2 WLR 537 at )."
57 "It should be noted, of course, that the best safeguard against the abuse of the power in practice is likely to be found in the training, supervision and discipline of the constables who are to be entrusted with its exercise. Public confidence in the police and good relations with those who belong to the ethnic minorities are of the highest importance when extraordinary powers of the kind that are under scrutiny in this case are being exercised. The law will provide remedies if the power to stop and search is improperly exercised. But these are remedies of last resort. Prevention of any abuse of the power in the first place, and a tighter control over its use from the top, must be the first priority".
271 "Unlawful discrimination has economic consequences too. Discrimination in educational and other opportunities can lead to a reduction in the pool of available candidates for further education and employment. This hinders social and economic progress since it means that society loses the benefits of the talents of these individuals and the different perspectives that they can bring to the solution of the problems facing business or society. Society benefits when each individual realises his or her potential and thus this process should not be impeded by unlawful discrimination."
"It is of crucial importance that the Convention is interpreted and applied in a manner that renders it rights practical and effective, not theoretical and illusory".
Para 132 "Such a guarantee of equal treatment is also essential to democracy. Democracy is founded on the principle that each individual has equal value. Treating some as automatically having less value than others not only causes pain and distress to that person but also violates his or her dignity as a human being. The essence of the Convention, as has often been said, is respect for human dignity and human freedom: see Pretty v United Kingdom (2002) 35 EHRR 1, 37, para 65. Second, such treatment is damaging to society as a whole. Wrongly to assume that some people have talent and others do not is a huge waste of human resources. It also damages social cohesion, creating not only an under-class, but an under-class with a rational grievance. Third, it is the reverse of the rational behaviour we now expect of government and the state. Power must not be exercised arbitrarily. If distinctions are to be drawn, particularly upon a group basis, it is an important discipline to look for a rational basis for those distinctions. Finally, it is a purpose of all human rights instruments to secure the protection of the essential rights of members of minority groups, even when they are unpopular with the majority. Democracy values everyone equally even if the majority does not. "
'The question for the court is, to paraphrase Burnett J at  in Kebede, whether the decision not to include persons within discretional leave to remain within the categories of eligible students is manifestly without reasonable foundation?'
36. "Humphreys v. Revenue and Customs Commissioners  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  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:"
"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."
37. "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."
The arguments before me have evolved since Kebede. Given it is now acknowledged that 'eligibility' falls within the ambit of protocol 1 article 2, submissions have been able to focus entirely on whether a regime which excludes persons with discretionary leave is justifiable or whether to exempt an entire category of individual without any regard to their individual circumstances can be said to have a reasonable foundation.
22 "But the fact that the test is less stringent than the "weighty reasons" normally required to justify sex discrimination does not mean that the justifications put forward for the rule should escape careful scrutiny. On analysis, it may indeed lack a reasonable basis. This case is different from Stec and Runkee in two important respects. First, they were concerned with non-means-tested benefits; CTC is of course means-tested, though not at subsistence level, and the other benefits to which the appellant was entitled were at subsistence level. And secondly, the justification advanced in each case was the historic need to cater for the disadvantage suffered by women in the workplace, in the first place by allowing them to retire with a state pension earlier than men, and in the second place by giving them a pension to compensate for the loss of their deceased husbands' income on which they had usually been dependent. The margin lay in deciding when and how to remove the discrimination. We are not here concerned with the timing of transitional arrangements, but with a considered policy choice which could last indefinitely. "
23 The appellant's case is simple (and skilfully deployed). He is responsible for looking after his children for three days a week. He is dependent upon subsistence level benefits: his incapacity benefit is deducted from his income support and his disability living allowance is to meet the particular needs arising out of his disability. He therefore has nothing with which to meet the needs of his children while they are with him. The mother could agree to share the CTC and the child benefit with him, but she does not have to do so. HMRC can give one of them the child benefit for one child and the other the benefit for the other child, but they cannot do this with the CTC. The court which made the order in the family proceedings has no power to order the mother to share the CTC with the father: the family courts' powers to make periodical payments orders for the benefit of children were removed with the introduction of the child support scheme: see Child Support Act 1991, s 8(3). Splitting used to be possible under the fore-runner to income support and under the child tax allowance scheme, so it can be done. And in fact it is now possible to share Child Tax Benefit under the comparable scheme in Canada (in Australia, shared carers can each claim the full benefit). Comparisons with other European states are not helpful, because of their different approaches to the allocation of parental responsibility after separation and of their very different tax and social security systems."
(i) Equality Impact Assessments Student Funding Policy Holders of Discretionary Leave to Remain' 2nd July 2013:
(ii) Education (Student Fees, Awards and Support) (Amendment) Regulation 2012: Equality Impact Assessment (June 2012).
As Ms Mountfield points out both these Assessments substantially post date the initial decision to abolish the category of eligibility for persons holding temporary leave to remain, following Arogundade (No1). They do not illustrate any recognition or consideration of possible discrimination at the relevant times. In any event, there is no analysis within the documentation of any consideration of the impact of the policy on those directly affected by it. Neither is there any contemplation of exceptions or categories to the blanket rule. Thus, a 'bright line' returns, so that when and only when the issue of indefinite leave to remain is resolved may they then apply for student support.
"there is no evidence that this policy change produces unlawful discrimination"
"The Defendant was under no duty to have such a category. It would be unprincipled. It would not further the statutory purpose of promoting the education of the people of England and Wales as that has evolved over the years in the manner prescribed in the various regulations'"
Mr Kovats relies on the observation of Burnett J in Kebede at Paragraph 46. This, he says "is an area where the application of clear parameters for eligibility for a loan makes sense" Mr Kovats does not accept the Claimant's submission that categories of eligibility can be identified with sufficient coherence to establish clear and workable parameters. He asserts that "an open ended category is unworkable." What he asks, would be the relevant features:.. finance?; prospects of obtaining settlement?. This it is said prejudges the Home Secretary's decision under the Immigration Act, which the Defendant neither can nor should do.
"The requirements of rationality and proportionality, as applied to decisions engaging the human rights of applicants, inevitably overlap. The classic formulation of the test is to be found in the advice of the Privy Council, delivered by Lord Clyde, in De Freitas v Permanent Secretary of Ministry of Agriculture, Fisheries, Lands and Housing  1 AC 69 at 80. But this decision, although it was a milestone in the development of the law, is now more important for the way in which it has been adapted and applied in the subsequent case-law, notably R (Daly) v Secretary of State for the Home Department  2 AC 532 (in particular the speech of Lord Steyn), R v Shayler  1 AC 247 at paras 57-59 (Lord Hope of Craighead), Huang v Secretary of State for the Home Department  2 AC 167 at para 19 (Lord Bingham of Cornhill) and R (Quila) v Secretary of State for the Home Department  1 AC 621 at para 45. Their effect can be sufficiently summarised for present purposes by saying that 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 because the same facts are likely to be relevant to more than one of them. Before us, the only issue about them concerned (iii), since it was suggested that a measure would be disproportionate if any more limited measure was capable of achieving the objective. For my part, I agree with the view expressed in this case by Maurice Kay LJ that this debate is sterile in the normal case where the effectiveness of the measure and the degree of interference are not absolute values but questions of degree, inversely related to each other. The question is whether a less intrusive measure could have been used without unacceptably compromising the objective. Lord Reed, whose judgment I have had the advantage of seeing in draft, takes a different view on the application of the test, but there is nothing in his formulation of the concept of proportionality (see his paras 68-76) which I would disagree with."
I note too that the mere saving of cost cannot justify discrimination. In the part-time judges' pension case MOJ v O'Brien  UKSC 6,  1 WLR 522 the Supreme Court said:
"Hence the European cases clearly establish that a member state may decide for itself how much it will spend upon its benefits system, or presumably upon its justice system, or indeed upon any area of social policy. But within that system, the choices it makes must be consistent with the principles of equal treatment and non-discrimination. A discriminatory rule or practice can only be justified by reference to a legitimate aim other than the simple saving of cost. No doubt it was because the Court of Justice foresaw that the ministry would seek to rely upon considerations of cost when the case returned to the national courts that it took care to reiterate that budgetary considerations cannot justify discrimination" (at paragraph 69)."
This afternoon Ms Mountfield has drawn my attention to R (on the application of the public law project) and the Secretary of State for Justice (Defendant) and the Office of the Children's Commissioner (Intervener)  EWHC 2365 (Admin). Ms Mountfield suggests (by email) that the case has relevance for my decision here. Mr Kovats responds (by email) that it is of no assistance. Some of the issues in that judgment resonate, in my view, with those raised in this case but nothing in the judgment causes me to re-evaluate either my conclusions or analysis.
Note 1 At Tab 26 of the authorities bundle. [Back] Note 2 At Tab 22 of the authorities bundle. [Back] Note 3 para. 276B of the immigration rules. ibid. [Back] Note 4 At Tab 26 of the authorities bundle. [Back]
Note 1 At Tab 26 of the authorities bundle. [Back]
Note 2 At Tab 22 of the authorities bundle. [Back]
Note 3 para. 276B of the immigration rules. ibid. [Back]
Note 4 At Tab 26 of the authorities bundle. [Back]