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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 >> Nyoni, R (on the application of) v Secretary of State for Business, Innovation and Skills & Ors  EWHC 3533 (Admin) (04 December 2015)
Cite as:  EWHC 3533 (Admin),  ELR 88
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QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
Sitting as a High Court Judge
| R (on the application of Sheila Nyoni)
|- and -
|Secretary of State for Business, Innovation and Skills
|- and -
| Student Loans Company
(instructed by Public Interest Lawyers) for the Claimant
Mr Vikram Sachdeva QC
(instructed by the Government Legal Department) for the Defendant
The Interested Party did not appear and was not represented
Hearing date: 10 November 2015
Further representations: 18, 19, 23 and 27 November 2015
Crown Copyright ©
Sir Brian Keith :
The statutory framework
"(1) Regulations shall make provision authorising or requiring the Secretary of State to make grants or loans, for any prescribed purposes, to eligible students in connection with their undertaking higher education courses, which are designated for the purposes of this section by or under the regulations.
(2) Regulations under this section may, in particular, make provision for determining whether a person is an eligible student in relation to any grant or loan available under this section "
The Secretary of State for this purpose is the Secretary of State for Business, Innovation and Skills. It is to be noted that there is nothing in the 1998 Act which required the Secretary of State to specify which students are eligible students by reference to their immigration status.
"(1) An eligible student qualifies for support in connection with a designated course subject to and in accordance with these Regulations.
(2) a person is an eligible student in connection with a designated course if in assessing that person's application for support the Secretary of State determines that the person falls within one of the categories set out in Part 2 of Schedule 1."
Part 2 of Schedule 1 to the 2011 Regulations contains a number of categories of students who were to be treated as eligible students. One category (that set out in para 5 of Part 2 of Schedule 1) relates to persons granted humanitarian protection, and that was the category which Ms Nyoni claimed to be included in when she applied for a student loan for the 2014/15 academic year. However, the category of persons considered by the Supreme Court in Tigere was the category of persons set out in para 2 of Part 2 of Schedule 1. It is headed "Persons who are settled in the United Kingdom" and provides:
"(1) A person who on the first day of the first academic year of the course
(a) is settled in the United Kingdom other than by reason of having acquired the right of permanent residence;
(b) is ordinarily resident in England;
(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) subject to sub-paragraph (2), whose residence in the United Kingdom and Islands has not during any part of the period referred to in paragraph (c) been wholly or mainly for the purpose of receiving full-time education.
(2) Paragraph (d) of sub-paragraph (1) does not apply to a person who is treated as being ordinarily resident in the United Kingdom and Islands in accordance with paragraph 1(4)."
"The Secretary of State may make arrangements for any person or body specified in the arrangements to exercise on his behalf, to such extent as is so specified, any function exercisable by him by virtue of regulations under section 2 "
It was pursuant to that power that the Secretary of State delegated the administration of the award of student loans to the Student Loans Company. However, section 23(5) of the 1998 Act provides:
"Any arrangements made under subsection (4) shall not prevent the Secretary of State from exercising the function in question himself."
The effect of that is that both the Secretary of State and the Student Loans Company can award student loans to eligible students.
The Tigere case
" at the date of the application, the applicant
(iv) is under the age of 18 years and has lived continuously in the UK for at least 7 years (discounting any period of imprisonment) and it would not be reasonable to expect the applicant to leave the UK; or
(v) is aged 18 years or above and under 25 years and has spent at least half of his life continuously in the UK (discounting any period of imprisonment) "
Lady Hale added that "[t]o this might be added an exceptional cases discretion" (emphasis supplied).
"Such a declaration would leave the department in no doubt that this appellant is entitled to a student loan, while leaving it open to the Secretary of State to devise a more carefully tailored criterion which will avoid breaching the Convention rights of other applicants, now and in the future."
"They have lived in this country for the majority of their lives. They have passed through the education system, secondary certainly and often primary. Some, such as the present appellant, have done very well, but whether they have or have not, all have been treated throughout as members of UK society and have behaved as such. Their length of residence is such that no one doubts that there could be no question of removing them from the UK, at least in the absence of grave misconduct. They are, in any ordinary language, settled in the UK [even though they are] not settled for the purposes of the immigration legislation "
These considerations led him to conclude that they
" are members of UK society as much as most others. They have been brought up here in the English system. They are as connected to the UK as most others and, like them, they can be expected to remain here indefinitely. There are therefore the same reasonable prospects of society benefitting from the contribution which tertiary education will equip them to make, and of it obtaining repayment of loans made, as there are in relation to the home-grown student population generally."
The result, as Lord Hughes said at , was that
" in respect of this cohort of people, the settlement rule goes further than is needed to serve [its] objectives. In consequence, it excludes people who meet the criteria which those objectives are designed to include."
In that respect, Lord Hughes explicitly said what was only implicit in Lady Hale's judgment.
The interim policy
"The Department is giving full consideration to the Supreme Court's ruling of 29 July 2015 (on the application of Tigere) (Appellant) v Secretary of State for Business, Innovation and Skills (respondent) 2015 UKSC57. The adoption of the policy set out below is an interim measure: it is entirely without prejudice to any future position on eligibility for student support that the Secretary of State may decide to adopt at a future date.
In that regard, the Department will soon be launching a public consultation to seek views on what regulatory changes may be required in the light of the ruling.
As an interim policy measure, the Secretary of State intends to use an adaptation of the Immigration Rule 276ADE(1) (as proposed by Lord Hughes's judgment in the Supreme Court's ruling) when considering post-Tigere applications for exceptional student support.
The Department will consider these individual cases against the following criteria:
- those under 18 years of age to have lived in the UK for at least 7 years;
- those aged 18-25 years who have spent at least half their life in the UK;
- is ordinarily resident in England; and
- 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.
The Department plans to amend the Student Support Regulations during this academic year such amended regulation would supersede this amended policy."
Ground of challenge (1): The proper interpretation of the interim policy
Ground of challenge (2): The lawfulness of the interim policy
Ground of challenge (3): The exceptional nature of Ms Nyoni's case