On appeal from:  EWCA Civ 1216
The appellant came to the UK with her parents as a young child in 2001 lawfully as a dependant of her father. The appellant’s parents overstayed after the expiry of her visa. The Appellant completed all of her primary and secondary education in the United Kingdom, was head girl of her secondary school and obtained 7 GCSEs and the equivalent of 3 A levels at grades A*, A and C. She has received a number of offers to attend university. The Appellant obtained Discretionary Leave to Remain (“DLR”) in 2012 and is highly likely to obtain indefinite leave to remain in 2018. However, she was treated as ineligible for a student loan because she did not have ‘settled’ immigration status.
In order to qualify for a student loan from the Government to cover University fees and maintenance under the relevant regulations, an applicant must be settled in the United Kingdom, and have been lawfully resident on the first day of the course. The Appellant, who has only discretionary leave to remain, did not meet these criteria. She challenged the application of the criteria to a person such as her who had a clearly established private life right to remain in the UK on the basis that they breached her right to education, under Article 2 of Protocol 1 of the European Convention on Human Rights (‘ECHR’), and unjustifiably discriminated against her in the enjoyment of that right on the grounds of her immigration status contrary to Article 14 ECHR.
Giving the leading majority judgment, Lady Hale applied the familiar four-stage domestic proportionality test to the two criteria and not the ‘manifestly without reasonable foundation’ test. She concluded that the application of the settlement criterion to the appellant could not be justified because, although it may be legitimate to target resources on those students who are likely to stay in the UK to complete their education and contribute to the economy afterwards, the settlement criterion was not rationally linked to that aim. It had not struck a fair balance between the rights of the individual and the community and it could not be said that no less intrusive measure could have been used instead. Higher education benefited both individuals and the community, and the harm caused to both the individuals concerned and the community as a whole by application of the exclusion could not be outweighed by the administrative benefits of a bright line rule. In particular, the savings for the government will only be short term as most young people like the Appellant will eventually qualify for loans whilst in the meantime the benefit of their enhanced qualifications to the exchequer and the economy will be lost. She reasoned that an exception, such as for individuals aged between 18 and 25 who have spent half their lives living continuously in the UK (based on the para. 276ADE(v) of the Immigration Rules, relating to entitlement to leave based on private life), might reasonably be added or an exceptional cases discretionary created given the comparatively small numbers likely to be eligible under the exception.
In relation to the criterion requiring three years’ ordinary residence, however, Lady Hale ruled that there was ample justification and strong public policy reasons for the rule that a period of lawful residence is required before a person becomes entitled to public services, and this did not impose the same detriment on the Appellant as the settlement requirement. Lady Hale said that if the requirement were more relaxed for the appellant it would also have to be relaxed for all the other categories of persons eligible for student loans whom the requirement applies. The administrative burden involved in making the moral judgment would be intolerable.
Lady Hale held that the appellant was clearly entitled to a declaration that the application of the settlement criterion breached her rights under art 14 and A2P1 of the convention. This would leave the department in no doubt that the appellant was entitled to a student loan and leave it open to the Secretary of State to devise a more carefully tailored criterion which will avoid breaching the convention rights of other applicants.
Lord Kerr and Lord Hughes agreed with Lady Hale. Lord Sumption and Lord Reed gave a joint dissenting judgment.
Helen Mountfield QC, Raj Desai, Karon Monaghan QC, Nick Armstrong and Sarah Hannett were involved in this case.