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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 [2015] EWHC 3533 (Admin) (04 December 2015) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2015/3533.html Cite as: [2015] EWHC 3533 (Admin), [2016] ELR 88

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IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		4 December 2015

Sir Brian Keith :

Introduction

1. This case is all about student loans. They are provided by the Secretary of State for Business, Innovation and Skills. To be eligible for such a loan, applicants had to be "settled" in the UK on the first day of the first academic year of their course. In R (on the application of Tigere) v Secretary of State for Business, Innovation and Skills [2015] 1 WLR 3820, the Supreme Court overturned a previous ruling of the Court of Appeal, and held that the requirement for Ms Tigere to be settled in the UK infringed her right under Art 14 of the European Convention on Human Rights ("the Convention") not to be discriminated against on the ground of her immigration status. The Supreme Court did not quash that requirement, but it left it to the Secretary of State to devise a more nuanced requirement which would avoid infringing the Convention rights of applicants in a similar position to Ms Tigere.
2. The claimant is Sheila Nyoni. Like Ms Tigere, she is not settled in the UK. She applied for a student loan after the Supreme Court's decision in Tigere had been handed down. Before her application had been considered, the Secretary of State issued an interim policy for determining applications for student loans from applicants who were not settled in the UK. He decided that Ms Nyoni was not entitled to a student loan under the interim policy and that there was nothing exceptional about her case. That is the decision which Ms Nyoni now challenges in this claim for judicial review. Her claim has three limbs. First, on a proper interpretation of the interim policy, she is entitled to a student loan. Secondly, if she is not, the interim policy is as unlawful as the original requirement which the Supreme Court held to be unlawful. Thirdly, even if it is not, the Secretary of State's decision not to treat her case as an exceptional one was one which the Secretary of State could not reasonably have reached.

The facts

3. Ms Nyoni is a citizen of South Africa. She was born on 12 March 1995, so she is now 20 years old. She says that she came to the UK on 26 March 2005 with her brother as dependants of her father, who had arrived here in 2001. There is nothing in the records of the Home Office to confirm the date of her arrival in the UK, but the Secretary of State is content to proceed on the basis of what she claims for the purposes of this case. Her mother joined them in 2003. Since Ms Nyoni's arrival in the UK, Ms Nyoni has lived in this country and been educated here, and for much of that time (but not for the whole of that time) she has had limited leave to remain here. She has had discretionary leave to remain in this country since 26 July 2011. That discretionary leave will continue until 26 March 2018, and she will be eligible to apply for indefinite leave to remain in the UK from 26 July 2017. It is accepted that because she only has limited leave to remain in the UK for the time being, she cannot be regarded as "settled" for the purpose of the regime governing student loans.
4. In April 2014, Ms Nyoni accepted the offer of a degree course in international business management at Heriot Watt University commencing in September 2014. On 29 May 2014 she applied online for a student loan for the first year of the course, the 2014/15 academic year, on the basis that she had been granted humanitarian protection. Her solicitors have said that that was the option she selected on the application form because it was the one which she thought most closely matched her situation. On the other hand, it has been suggested on behalf of the Secretary of State that Ms Nyoni selected that option (even though she must have known that it did not apply to her) because she knew that she was not entitled to a student loan on the basis that she was settled in the UK unless Ms Tigere's claim succeeded. At that stage no decision had been made on it even by the High Court. Indeed, her counsel, Ms Karon Monaghan QC, told me that Ms Nyoni had been following Ms Tigere's case closely as the two of them were friends. It is likely, therefore, that Ms Nyoni knew that no decision had yet been made on Ms Tigere's claim. However, by the time Ms Nyoni's course started, the High Court had allowed Ms Tigere's claim and the Court of Appeal had overturned the judgment of the High Court. That is why Mr Vikram Sachdeva QC on behalf of the Secretary of State asserted that Ms Nyoni started her course at a time when she knew that her only chance of being able to complete the course which she had been offered was if her parents were able to fund her tuition fees and living expenses or if the requirement that she be settled in the UK was eventually ruled unlawful by the Supreme Court. She was therefore taking a risk in starting her course at a time when she would have realised that her only chance of getting public funding depended on success for Ms Tigere in the Supreme Court. It might be said that that was a risk worth taking. The worst case scenario was that Ms Tigere's appeal to the Supreme Court was dismissed, and Ms Nyoni had to give up her course after a while, whereas if Ms Tigere's appeal succeeded, there was every chance that Ms Nyoni would get funding for the whole – or at least the majority – of her course.
5. Ms Nyoni was requested to provide more information about her status. She did so on 10 August 2015, and unsurprisingly her application was refused by a letter dated 14 August 2015 – correctly since she had not been granted humanitarian protection. By then, of course, the 2014/15 academic year was coming to an end, and Ms Nyoni had had to fund her tuition fees (which amounted to £9,000 a year) and her living expenses. A bursary of £2,250 had reduced the tuition fees she had had to pay to £6,750, and her parents were to pay £3,000 towards those fees on 24 August 2015, but by the beginning of the 2015/16 academic year Ms Nyoni still owed £3,750 for the fees for the 2014/15 academic year. It is said that in order to support Ms Nyoni during that year, her parents had had to borrow some money from one of Ms Nyoni's cousins as well as using their own savings, that her mother had had to work overtime, and that Ms Nyoni had had to work herself during her gap year. That is said to show her commitment and that of her family to her getting her degree, as was the fact that she had done well in the first year of her course.
6. On 16 August 2015, a couple of days after her application for a student loan for the 2014/15 academic year had been rejected, Ms Nyoni applied online for a student loan for the 2015/16 academic year. There is no evidence about the basis on which she made that application, but by then the Supreme Court had handed down its judgment in Tigere (it had been handed down on 29 July 2015), and Ms Nyoni was presumably anticipating that the new requirements for eligibility for a student loan which the Secretary of State would be devising to render them Convention-compliant would make her eligible for a student loan. Accordingly, on 28 August 2015, Ms Nyoni's solicitors (who had also represented Ms Tigere) wrote to the Student Loans Company which administered the student loan scheme for the Secretary of State, pointing out that Ms Nyoni's personal circumstances were "very similar" to those of Ms Tigere, and that such differences as there were between their personal circumstances were such that they could have "no effect on the general principles" which could be derived from the Supreme Court's decision in Tigere. They were saying, in effect, that if the denial of a student loan to Ms Tigere had been unlawful, so too would the refusal of a student loan to Ms Nyoni. They asked for confirmation that Ms Nyoni was now entitled to a student loan for all four years of her course, including the 2014/15 academic year. When they did not get a substantive response to that request, they threatened legal action.
7. As I have said, on 16 September 2015, the Secretary of State issued an interim policy for determining applications for student loans from students who were not settled in the UK, and it was after that that the Government Legal Department informed Ms Nyoni's solicitors on 18 September 2015 that she was not entitled to a student loan under it, nor would she be given a student loan on an exceptional basis. Her solicitors wrote to the Government Legal Department on 22 September 2015 challenging the Secretary of State's interpretation of the interim policy, as well as his view that Ms Nyoni's case was not exceptional, but by its letter of 1 October 2015, the Government Legal Department informed Ms Nyoni's solicitors that the Secretary of State maintained his view. This claim for judicial review was commenced very promptly – on 14 October 2015 – and permission to proceed with the claim was given by Goss J without waiting for the Secretary of State's summary grounds for resisting the claim. He ordered an expedited hearing of the claim.

The statutory framework

8. Section 22 of the Teaching and Higher Education Act 1988 ("the 1988 Act") provides, so far as is material:

"(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.

9. The regulations made by the Secretary of State under section 22(1) of the 1988 Act were the Education (Student Support) Regulations 2011 ("the 2011 Regulations"). It is common ground that the course which Ms Nyoni was on was a designated course within the meaning of the 2011 Regulations. Reg 4 of the 2011 Regulations dealt with which students should be regarded as eligible to receive student loans. Regs 4(1) and 4(2) provide, so far as is material:

"(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)."

10. Para 1(1) of Part 1 of Schedule 1 to the 2011 Regulations provides that the word "settled" has the meaning given to it by section 33(2A) of the Immigration Act 1971, i.e. someone is settled in the UK if he or she is "ordinarily resident there without being subject under the immigration laws to any restriction on the period for which he [or she] may remain". So to be eligible for a student loan under the paragraph considered by the Supreme Court in Tigere, students could not be subject to any restriction on the period for which they were permitted to remain in the UK. As I have said, Ms Nyoni (and Ms Tigere for that matter) only had limited leave to remain in the UK, and it was accepted that neither of them could be regarded as settled in the UK for the purposes of the 2011 Regulations. In Tigere, Lady Hale noted at [20] that there was no evidence that thought had been given to the impact of removing eligibility for a student loan from everyone with only limited leave to remain here, irrespective of the strength of their connections with the UK.
11. One other feature of the statutory regime should be noted. Section 23(4) of the 1998 Act provides, so far as is material:

"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

12. The Supreme Court's decision in Tigere is at the heart of this case. Ms Tigere was born in 1995. She came to this country in 2001 with her parents from Zambia. When her father returned to Zambia in 2003, she and her mother remained in the UK as overstayers. She was educated in England throughout her school career. In January 2012, she was granted discretionary leave to remain in the UK. That discretionary leave was extended to 2018, when she will be eligible to apply for indefinite leave to remain in the UK. In April 2013, she applied for a student loan for the 2013/14 academic year to enable her to take up a place she had been offered on a university degree course in international business management. Without such a loan, she would not have been able to fund her course. She was asked to provide further information about her immigration status, and after taking legal advice, she discovered that she was not eligible for a student loan. In June 2013 she sought judicial review of the requirements in paras 2(1)(a) and 2(1)(c) of Part 2 of Schedule 1 to the 2011 Regulations that in order to be eligible for a student loan, she had to be settled in the UK when her course began and to have been ordinarily resident in the UK in the three years before then (to the extent that the ordinary residence had to be lawful), on the ground that these requirements infringed her rights under the Convention. There was no challenge to the lawfulness of the requirements in paras 2(1)(b) and 2(1)(d) of Part 2 of Schedule 1 to the 2011 Regulations. Her claim that the requirement in para 2(1)(a) was unlawful succeeded before Hayden J on 14 July 2014, but not her claim that the requirement in para 2(1)(c) was unlawful. However, on 31 July 2014, the Court of Appeal allowed the Secretary of State's appeal and held that the requirement in para 2(1)(a) was lawful. Ms Tigere appealed to the Supreme Court.
13. The leading judgment in the Supreme Court was given by Lady Hale. Lord Kerr agreed with her judgment, and Lord Hughes gave a concurring judgment. The two other members of the Court (Lord Sumption and Lord Reed) dissented. In her judgment, Lady Hale began by noting that Ms Tigere was complaining that her ineligibility for a student loan (when coupled with her inability to pay for her course without such funding) denied her access to the opportunities for higher education available in the UK in breach of Art 2 of the First Protocol to the Convention, which accorded to everyone the right to education. But Lady Hale went on to say that Ms Tigere's real complaint was that some people get student loans whereas others do not. In other words, those who do not get student loans because they were not settled in the UK or had not been ordinarily resident in the UK for the three years before their course began were being discriminated against in breach of Art 14 of the Convention on the ground of their immigration status. The issue was whether the denial of a student loan to such people when such loans were made to other students could be justified.
14. At [43] Lady Hale did not doubt – indeed, Ms Tigere's legal team had accepted – that it was reasonable to restrict benefits to those who are genuinely integrated into society, and that a period of residence in the UK could be "a reasonable proxy for such 'belonging'". And at [45] Lady Hale said that there were "strong public policy reasons for insisting that any period of ordinary residence required before a person became entitled to public services be lawful ordinary residence" (emphasis supplied). The requirement in para 2(1)(c) of Part 2 of Schedule 1 to the 2011 Regulations was therefore lawful. None of the other members of the Court took a different view.
15. Different considerations applied to the requirement in para 2(1)(a) of Part 2 of Schedule 1 to the 2011 Regulations – the requirement which Lady Hale referred to as "the settlement rule". At [34] she did not doubt – again Ms Tigere's legal team had accepted – that it was legitimate for the Secretary of State to target finite resources on those students who are not only likely to stay in the UK to complete their education, but are also likely to stay on afterwards and contribute to the UK's economy through their enhanced skills and the taxes they pay. She noted with apparent, if not explicit, approval the argument advanced on Ms Tigere's behalf that Ms Tigere had established a private life here, and she could not be removed from the UK unless she committed a serious criminal offence. Indeed, she would almost inevitably secure indefinite leave to remain in the UK in due course. In those circumstances, there was no reason to suppose that she would want to leave this country. It was therefore said that people in her position are just as likely to stay here, to complete their education, to contribute to the economy and to repay their loans as are people who are settled in the UK within the meaning of the 2011 Regulations.
16. "But even if there is no sufficient rational connection between the aim and the rule", asked Lady Hale at [36], "is the Secretary of State nevertheless justified in adopting a 'bright line' rule which enables those administering the scheme to identify those who qualify?" At [37], she pointed out that between "a bright-line rule or a wholly individualised system … [t]here are obvious intermediate options, such as a more properly tailored bright line rule, with or without the possibility of making exceptions for particularly strong cases which fall outside it". Lady Hale concluded that a bright line rule could have been chosen which more closely fitted the legitimate aims of the settlement rule. She noted that Ms Tigere's legal team had pointed to the requirements in para 276ADE(1) of the Immigration Rules to be met by someone who is applying for leave to remain in the UK on the grounds that they have established a private life here as a possible rule for the Secretary of State to adopt. Two of those requirements are that

" … 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).

17. Finally, Lady Hale addressed the question whether the settlement rule struck a fair balance between the effect of the rule on those whose rights were affected by it and the interests of the community as a whole. She noted that the effect of denying loans until people like Ms Tigere had been given indefinite leave to remain in the UK was that their opportunities for higher education had only been delayed, not denied. But she regarded as significant the need to keep up the momentum of one's studies, to maintain the habits and the skills learned at A-level, and in many cases to retain the knowledge gained when studying for one's A-levels. In addition, there was at least some harm caused to the community by such delay. Some of the people in Ms Tigere's position may be lost to higher education forever. Others will not join the productive higher-skilled workforce until much later than they would otherwise have done. The overall benefit to the exchequer and the economy will be correspondingly reduced. These disadvantages for the individuals concerned and the community as a whole were not, in Lady Hale's view, outweighed by the administrative benefits of the settlement rule, which Lady Hale said could be achieved in other ways. She concluded that the application of the settlement rule to Ms Tigere could not be justified, and it was therefore incompatible with her Convention rights.
18. When it came to the remedy for this infringement of Ms Tigere's right not to be discriminated against, Lady Hale was not prepared to quash the settlement rule. There were cases in which the rule would not be incompatible with Convention rights. Nor could the rule be read down by adding to reg 4(2) the words "or where the grant of support is necessary in order to avoid a breach of the person's Convention rights within the meaning of the Human Rights Act 1998". That would leave the Secretary of State with little guidance as to when the refusal of funding would be a breach of Convention rights. The course which Lady Hale took was merely to declare that the application of the settlement rule to Ms Tigere was a breach of her Convention rights. She concluded at [49]:

"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."

19. Lord Hughes gave a useful description of the cohort of students of which Ms Tigere was an example. At [57] he said:

"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 [58], 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.

20. When it came to the appropriate remedy, Lord Hughes was emphatic in his rejection of the suggested way in which the settlement rule could be read down. It would mean that an individualised assessment of someone's Art 8 rights would have to be made by officials in order to determine eligibility for a student loan. That would require an entirely different set of skills for those responsible for running the student loan scheme. It was, of course, for the Secretary of State to formulate a new rule to replace the settlement rule, but it would not be difficult to devise one which was as clear and as simple to operate as the settlement rule, but which recognised the position of the cohort of students which included Ms Tigere. At [65] Lord Hughes thought that rule 276ADE(1) of the Immigration Rules was "a possible template which might be adopted, with or without modifications". He acknowledged at [67] that if such a rule was adopted, "that would not entirely eliminate the risk of hard cases falling on the wrong side of it", but as he had previously said, that was a consequence of adopting any bright line rule. The difference in emphasis between Lord Hughes and Lady Hale was that she merely said that it was for the Secretary of State to decide whether to add what she described as "an exceptional cases discretion", whereas Lord Hughes was firm in his view that if the Secretary of State chose not to, that would not result in any infringement of Convention rights.

The interim policy

21. The Secretary of State responded to the Supreme Court's judgment in Tigere by issuing the following policy statement on 16 September 2015:

"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

22. The argument advanced on Ms Nyoni's behalf is that on a proper construction of the interim policy, she qualified for a student loan because on 16 August 2015 – which was the date on which she applied for a student loan for the 2015/16 academic year – she was 20 years old and had spent half her life in the UK: she was 10 years and 2 weeks old when she came to this country, but she had been living here for 10 years and 6 months by the time she applied for a student loan for the 2015/16 academic year. There has been a subtle change in her case since her solicitors' letter of 28 August 2015, when they were saying that Ms Nyoni was entitled to a student loan for all four years of her course, including the 2014/15 academic year. By 29 May 2014 when she applied for a student loan for the 2014/15 academic year, she had only been in this country for 9 years and 2 months, i.e. less than half her life. So in order to bring Ms Nyoni even arguably within the interim policy, her claim to be entitled to a student loan from the beginning of the 2014/15 academic year had to be abandoned.
23. Even then, the date by reference to which the length of time she had lived in the UK for up until had to be the date on which she applied for a student loan for the 2015/16 academic year – 16 August 2015 – if she was to bring herself within the interim policy. It could alternatively have been put on the basis that the appropriate date was the date on which the 2015/16 academic year began. That date was 1 September 2015 in the light of the definition of the words "academic year" in para 2(1) of the 2011 Regulations. One reading of the grounds for judicial review suggests that her legal team were putting her case on that basis. Para 15 of the grounds said that Ms Nyoni "qualifies for student support under the Interim Policy on the basis of her residence in the UK by the start of the second year of her course" (emphasis supplied). As it turned out, it has not been put on that alternative basis for reasons which I shall come to shortly. The important point is that only by those two dates would Ms Nyoni have lived half her life in the UK. That raises the question of what is the date by reference to which the length of time she had lived in the UK for has to be calculated.
24. Subject to one area of possible uncertainty, the case advanced by the Secretary of State is simple. The only part of para 2(1) of Part 2 of Schedule 1 to the 2011 Regulations which was successfully challenged in Tigere was the settlement rule in para 2(1)(a). The interim policy did no more than require students who did not satisfy the settlement rule to satisfy one or other of two alternative long residence rules instead. Those two alternative long residence rules were set out in the first two bullet points in the interim policy. That is why the third and fourth bullet points were identical to paras 2(1)(b) and 2(1)(c). That shows that para 2(1) is still the governing provision, with the settlement rule being temporarily supplemented for those students who could not satisfy the settlement rule by the two alternative long residence rules, depending on the age of the student at the relevant time. And what is the relevant time? The answer is in the first line of para 2(1): "the first day of the first academic year of the course". On that basis, the relevant date in Ms Nyoni's case is 1 September 2014, by when she had not been in the UK for half her life.
25. The one area of uncertainty relates to whether the Secretary of State's case is that the two new long residence rules replaced the settlement rule or supplemented it in the sense that applicants for a student loan under the interim policy are required to satisfy either the settlement rule or one of the two new long residence rules? Paras 36 and 38 of the Secretary of State's detailed grounds for resisting the claim spoke of the interim policy replacing para 2(1)(a), and "replace" was the word used by Mr Sachdeva at various points in his oral submissions. On the other hand, he reminded me that Mr Paul Williams, the Deputy Director of Student Funding Policy at the Department for Business, Innovation and Skills, had said in his witness statement that the interim policy had merely "supplemented" the settlement rule, and Mr Sachdeva expressly made the point that that shows that the intention was not to replace the settlement rule. Indeed, to replace the settlement rule with the two long residence rules would not have made much sense in view of (a) Lady Hale's refusal to quash the settlement rule on the basis that there were cases in which the settlement rule would not infringe Convention rights, and (b) the possibility that there may be applicants for a student loan who could satisfy the settlement rule but not either of the two long residence rules. In the circumstances, I proceed on the basis that the Secretary of State's case is that the interim policy did no more than add the two long residence rules as an alternative way for applicants for a student loan to demonstrate their long-standing connection with the UK.
26. Ms Nyoni's legal team challenge all that. They say that the interim policy is a free-standing, complete code for determining applications for a student loan by people who would have qualified for a student loan under para 2(1) of Part 2 of Schedule 1 to the 2011 Regulations but for the fact that they were not settled in the UK within the meaning of the 2011 Regulations. The fact that it was intended to replace the whole of para 2(1) is borne out by the fact that it replicated some of the provisions in para 2(1) – namely paras 2(1)(b) and 2(1)(c) – when para 2(1)(b) had not been challenged in Tigere and the challenge to para 2(1)(c) had failed. Indeed, although the third and fourth bullet points have been lifted word for word from the 2011 Regulations, the first two bullet points have not been drafted as if they were intended to slot in seamlessly in place of para 2(1)(a). Moreover, although the interim policy did not identify the date by reference to which length of residence in the UK has to be calculated, the obvious date has to be the date on which the student applies for a loan. Indeed, that is entirely consistent with the Secretary of State's decision to use a suitable adaptation of para 276ADE(1) of the Immigration Rules as the template for the interim policy. That requires the length of the immigrant's residence in this country to be calculated at the date of the application for leave to remain in the UK. That, no doubt, is why the date of Ms Nyoni's application for a student loan for the 2015/16 academic year was relied on by her legal team as the relevant date rather than the date on which that academic year began. But the point is that if the Secretary of State had wanted the length of residence to be calculated at the beginning of the course rather than on the date of the application – i.e. otherwise than in line with para 276ADE(1) – the interim policy would have made that clear in so many words. After all, when the interim policy purported to identify how the length of ordinary residence should be calculated in the fourth bullet point, it spelled out the appropriate mechanism.
27. These are ingenious arguments, but I have not been persuaded by them. The interim policy was not drafted as crisply as it might have been. For example, the punctuation in the last sentence has gone completely awry, and the word "to" in the first bullet point should have been "who" to make it consistent with the language of the second bullet point. Nor did it make clear in so many words that the settlement rule was not being replaced by the two new long residence rules, but that the latter were just another way for a person's integration into society to be shown. Accordingly, the fact that the interim policy replicates – unnecessarily on the Secretary of State's case – paras 2(1)(b) and 2(1)(c) could just as easily be the product of poor drafting as an intention to make the interim policy a free-standing replacement for the whole of para 2(1). Nor can any inference be drawn from the mechanism used in the fourth bullet point to calculate the appropriate period of ordinary residence: the whole of the bullet point was simply lifted from para 2(1)(c). Nor can any assistance be derived from the fact that para 276ADE(1) required the length of the immigrant's residence in the UK to be calculated by reference to the date of the application for leave to remain in the UK. The reason why Lady Hale and Lord Hughes regarded para 276ADE(1) as a possible template to replace the settlement rule was limited to their view that a long residence rule met the objectives which the settlement rule had sought to achieve. They did not have in mind at all the date by reference to which the length of residence had to be calculated. Indeed, neither of them in their judgments referred to the fact that para 276ADE(1) included the words "at the date of the application". In my opinion, the obvious reason why there was no date in the interim policy by reference to which the length of residence in the UK was to be calculated for the purpose of the first three bullet points – without which the interim policy would have been unworkable – is that it was intended that the introductory words of para 2(1) applied: "A person who on the first day of the first academic year of the course …"
28. There was some discussion before me about whether the proper construction of the interim policy was for the court to decide or whether the court had to adopt the Secretary of State's interpretation of it, subject to the court's power to review that construction on the basis that it was not open to the Secretary of State to interpret it in that way. I do not need to engage in that debate because, on the assumption that it is for the court to decide what the interim policy means, I have concluded for the reasons I have given that its effect was to supplement para 2(1)(a) by adding the first two bullet points for those students who could not satisfy the settlement rule. The first bullet point did not help Ms Nyoni as she was not under the age of 18 on 1 September 2014 when her course was treated as having started. Nor did the second bullet help her, because on that date she had not spent at least half her life in the UK. It follows that she did not qualify for a student loan under the interim policy.

Ground of challenge (2): The lawfulness of the interim policy

29. Since the Secretary of State used as the template for the interim policy the two alternative long residence rules in para 276ADE(1) of the Immigration Rules which the Supreme Court said were a possible template, it is a little difficult to see how the interim policy can be said to be unlawful. The Supreme Court did not say that a bright line rule was inappropriate, and as Lord Hughes said, it is in the nature of bright line rules that there will be hard cases falling on the wrong side of them. So on what basis is it said that the two alternative long residence rules in the first and second bullet points of the interim policy still discriminate against students in Ms Nyoni's position?
30. The principal argument advanced by Ms Monaghan is deceptively simple. The Supreme Court held that Ms Tigere was entitled to a student loan. Since Ms Nyoni's personal circumstances are not materially different from those of Ms Tigere, the Supreme Court would inevitably have concluded that Ms Nyoni was entitled to a student loan as well. If the new rule which supplemented the settlement rule did not entitle Ms Nyoni to a student loan, the new rule had to be unlawful as well.
31. I do not agree with the premise on which this argument is based. I do not think that the Supreme Court decided that everyone in the cohort of students which Ms Tigere's case exemplified was entitled to a student loan. The Supreme Court did not declare that any rule which the Secretary of State adopted to supplement the settlement rule should necessarily result in either Ms Tigere or anyone else whose circumstances were not materially different from hers being eligible for a student loan. The Supreme Court merely declared that the application of the settlement rule to that cohort of students was unlawful. It is true that Lady Hale said at [49] that the declaration she would be prepared to make "would leave the department in no doubt that [Ms Tigere] is entitled to a student loan", and I therefore accept that Lady Hale at least (and Lord Kerr as well) thought that any rule which supplemented the settlement rule had to be drafted in such a way as to make Ms Tigere eligible for a student loan. But Lord Hughes did not go that far, and neither, of course, did the two members of the Court who dissented. Lord Hughes only said at [64] that the new rule which the Secretary of State had to devise had to be one "which recognises the position of this cohort of students". Recognising the position in which Ms Tigere and those students whose circumstances were not materially different from hers did not necessarily mean that all of them should qualify for a student loan. There would inevitably be some hard cases falling on the wrong side of whatever bright line rule was adopted, and if the two alternative long residence rules in para 276ADE(1) were adopted by the Secretary of State, the eligibility for a student loan of those in this cohort of students would depend, in the case of someone aged between 18 and 25, on when precisely they came to this country. Ms Nyoni's case happened to fall on the wrong side of the line.
32. The fact of the matter is that, although there is no material difference between Ms Nyoni's personal circumstances and those of Ms Tigere, the Secretary of State adopted a bright line rule based on long residence for the interim policy. The problem is that it results in Ms Nyoni not being eligible for a student loan – at any rate for a course beginning at the start of the 2014/15 academic year. That is correct, but that is to put the cart before the horse – unless it can be said that the Supreme Court decided that Ms Tigere and everyone else whose circumstances were not materially different from hers should be eligible for a student loan. For the reasons I have given, I do not think that that is what the Supreme Court decided.
33. The subsidiary argument advanced on Ms Nyoni's behalf is that the discrimination to which Ms Nyoni would still be subjected if she did not qualify for a student loan under the interim policy cannot be justified because it is disproportionate to deny her a student loan when that would prevent her from completing a course which she had already started pursuant to a rule relating to the length of her residence in the UK which did not exist at the commencement of her course. I do not agree. I was not addressed on whether discrimination on the ground of length of residence in the UK is capable of being discrimination on any of the grounds prohibited by Art 14. But even if it is, it is not the length of Ms Nyoni's residence in the UK which is the problem for her in the light of the Supreme Court's view that the length of residence required for leave to remain in the UK under para 276ADE(1) was an appropriate template for the new rule to supplement the settlement rule. The problem for Ms Nyoni relates to the date by reference to which her length of residence has to be calculated. There is no challenge to the lawfulness of calculating the length of residence of an applicant for a student loan by reference to the date on which their course started. So the challenge has to be based on the unfairness to Ms Nyoni of having her length of residence in the UK calculated by reference to that date. But that again is to put the cart before the horse: you cannot say that a rule is unlawful if there is nothing objectionable about the rule itself, but it happens to have an adverse effect on some people it applies to but not on others. It is another example of the likelihood of there being hard cases whenever you have a bright line rule.

Ground of challenge (3): The exceptional nature of Ms Nyoni's case

34. The interim policy did not include what Lady Hale called "an exceptional cases discretion". Perhaps that was because Lady Hale did not say that a new rule had to have an exceptional cases discretion. Perhaps it was because Lord Hughes took the view that a decision not to do so could not be successfully challenged. However, the Government Legal Department's letter of 18 September 2015 said that Ms Nyoni's case "has also been considered on an exceptional basis outside the scope of the interim policy criteria", but her case was not regarded as an exceptional one. Ms Nyoni's solicitors set out a number of matters in their letter of 22 September 2015 which they said made Ms Nyoni's situation an exceptional one, but the Secretary of State remained unpersuaded that there was anything exceptional about Ms Nyoni's case. The Secretary of State did not explain why he regarded the matters raised by Ms Nyoni's solicitors as unpersuasive. It is said that the Secretary of State's decision not to treat her case as an exceptional one was one which he could not reasonably have reached.
35. There are two principles which are said to be relevant here. The first is relatively uncontroversial. A decision-maker making a decision in public law pursuant to a policy by which the decision-maker is bound is required – other than where the decision-maker is acting under the prerogative powers of the Crown – to consider whether the particular case is an exceptional one justifying a departure from the policy. The decision-maker does not have to identify the circumstances which would make a particular case an exceptional one, or to publish the criteria which would inform that decision. However, the decision which is reached has to be one which could reasonably have been reached. If it is not, it is susceptible to challenge on ordinary judicial review principles. The second principle is derived from the Court of Appeal's decision in R (on the application of Rogers) v Swindon NHS Primary Care Trust [2006] 1 WLR 2649, and that is that where a decision-maker is required, by the policy by which he is bound, to decide whether a particular case is so exceptional as to justify a departure from such a policy, it must be possible to envisage cases in which the circumstances would be exceptional. If it is not possible to do that, the policy is one which despite its terms does not admit of exceptions, and to that extent the policy could be said to be irrational. However, it is unclear whether that principle applies to the situation where, as here, the policy does not require exceptional cases to be considered, but the decision-maker elects to do so. I say "as here" because although the interim policy talked of it applying to "post-Tigere applications for exceptional student support" (emphasis added), it is plain that the exceptional circumstances related to cases outside the 2011 Regulations where the student was not settled in the UK within the meaning of the 2011 Regulations, but satisfied one or other of the two alternative long residence rules in the interim policy. The exceptional circumstances did not relate to someone who did not satisfy either of the two alternative long residence rules. The point is that where the policy does not require exceptional cases to be considered, but the decision-maker elects to do so, it might be said that the inability to envisage exceptional circumstances which would justify a departure from the policy would not render the policy irrational, because the policy did not require exceptional cases to be treated differently.
36. With these considerations in mind, I turn to the factors which are said to make Ms Nyoni's case exceptional. They are that she is fully integrated into the life of the UK, and once she completes her course she will have the skills to contribute to the economy and the exchequer. She is doing well in her course, but although she received financial support from her parents both for her tuition fees and her living expenses, that support cannot continue because her parents cannot afford it any more. In my opinion, these are considerations which could apply to very many students who come within the relevant cohort of students, and I cannot say that the Secretary of State was wrong to regard them as unexceptional.
37. The strongest point made on Ms Nyoni's behalf is that she has already completed one year of her course, and has started her second year. The consequences of that were not spelled out in detail, but denying her a student loan for the 2015/16 academic year would mean, I assume, that (a) she would have to give up her course, (b) she would have to re-apply to Heriot Watt University or other universities to take her on a new course beginning in the 2016/17 academic year if she wanted to continue with higher education, (c) she would have to be accepted on such a course, in which case she could apply for a student loan for that academic year (for which she would be eligible under the interim policy because she will have spent more than half her life in the UK by the date on which the 2016/17 academic year will be treated as starting), but even if she is accepted for such a course, (d) she will have to repeat the year she has already done, (e) her graduation will be delayed by two years, and (f) the momentum of keeping her education going will have been lost. The Secretary of State accepts that Ms Nyoni would not qualify for funding for the whole of any new course because of the formula in reg 21 of the 2011 Regulations for calculating the period of funding: see para 45 of Mr Sachdeva's skeleton argument.
38. These are very significant disadvantages for Ms Nyoni, but whether they made her case an exceptional one depends – in part at least – on whether there are many other students who find themselves in a similar position. At the very end of his submissions, Mr Sachdeva told me that the Secretary of State had granted 19 applications for student loans under the interim policy. After the hearing it occurred to me that what would be more helpful to know was (i) how many applications for student loans under the interim policy have been refused on the basis that the applicants did not satisfy either of the two alternative long residence rules in the interim policy, and (ii) of those students, how many had already completed one or more years of their course. I therefore asked to be provided that information. By the time I was given it – 27 November – I was told that the number of students who had been granted student loans under the interim policy had gone up to 31. However, I was also told that 50 such applications under the interim policy had been refused, and of those, 12 students had had their applications refused only because they failed to satisfy either of the two alternative long residence rules in the interim policy. Crucially, of those 12, as far as the Secretary of State was aware, only Ms Nyoni had already completed one or more years of their course. It follows that of the 81 students whose applications for student loans under the interim policy had been considered by 27 November, only Ms Nyoni had not lived in this country long enough by the beginning of her course to satisfy either of the two alternative long residence rules in the interim policy but had already completed at least one year of her course.
39. The Secretary of State could not have known, of course, precisely how the figures were going to pan out either when Ms Nyoni was refused a student loan for the 2015/16 academic year on 18 September 2015, or when that decision was confirmed on 1 October 2015. But it would have been apparent to him that it would be very unfortunate if Ms Nyoni had to repeat the year she had already done in order to secure funding (which was what her solicitors had told the Government Legal Department in its letter of 22 September 2015), as well as to take a year out of her studies while she waited for the new course she had to take to start. There was a very real possibility that very few other students, if any, would find themselves in the same position as her. As it is, subsequent events have shown how unique Ms Nyoni's case is, but in my opinion the decision to treat Ms Nyoni's case as unexceptional was not one which the Secretary of State could reasonably have reached even on the basis of his state of knowledge on 1 October 2015.
40. Finally, in case I am wrong about that, I have considered whether, in the light of Rogers, it is possible to envisage a more extreme case than that of Ms Nyoni in which the circumstances would be exceptional. Of course, this exercise assumes that the Secretary of State was not exercising a prerogative power when issuing the interim policy, and that the principle in Rogers applies where the policy does not in terms require a decision-maker to consider exceptional cases. In my opinion, it is possible to envisage such a case. Suppose Ms Nyoni had been born a year earlier than she had been, and had come to this country six months later than she had. She would have been no less integrated into the society of the UK. However, she would not have been eligible for a student loan under the interim policy until she began the 2017/18 academic year. By then she would have had to fund the first three years of her course out of her own funds. It could be said that to require her to retake the first three years of her course when she was just a year from graduating in order to get a student loan which she would only be eligible for one year in the light of reg 21 would have made her case so exceptional (and one which is unlikely to be reflected in the personal circumstances of more than a handful of students, if any) so as to justify a departure from the policy. However, for the reasons I have given, it was, in my opinion, not reasonably open to the Secretary of State to conclude that Ms Nyoni's circumstances were not so exceptional as to justify a departure from the interim policy.

Conclusion

41. For these reasons, this claim for judicial review must be allowed. The declaration which I make is that Ms Nyoni's personal circumstances were such as to require the Secretary of State to treat her case as an exceptional one. I do not think it appropriate to order the Secretary of State to grant Ms Nyoni a student loan for the 2015/16 academic year, since there is no reason to suppose that the Secretary of State will not honour the declaration I have made, and grant her a student loan for this academic year.
42. I wish to spare the parties the trouble and expense of attending court when this judgment is handed down. I leave it to them to see if they can agree an appropriate order for costs, though that order must reflect the fact the Secretary of State has succeeded on the two issues of importance to the whole cohort of students, not just Ms Nyoni. If the parties cannot do so within 7 days of the handing down of this judgment, they should notify the Administrative Court Office of that, and I shall decide what order should be made without a hearing on the basis of such written representations as the parties wish me to consider. If the Secretary of State wishes to apply for permission to appeal, the Government Legal Department must notify the Administrative Court Office of that within 7 days of the handing down of this judgment as well, and I will consider that as soon as practicable thereafter without a hearing, again on the basis of such written representations as are made. However, his time for filing an appellant's notice will still be within 21 days of the handing down of this judgment.