R (Holub) v Secretary of State for the Home Department

The right to education under article 2 of Protocol No. 1 guarantees access to existing educational institutions and an education meeting a minimum standard of effectiveness. It does not guarantee the most effective possible education, an education tailored to an individual's circumstances, or education in a particular country.

A child is not denied that right merely because immigration removal interrupts a better education and requires adaptation to another developed educational system. Educational difficulties remain relevant to any request for exceptional leave to remain. The Secretary of State may rationally refuse such leave after considering those difficulties and the child's capacity to overcome them.

The Polish appellants sought judicial review of the Secretary of State's refusal to grant exceptional leave to remain. Their school-age daughter had prospered educationally in England. They claimed that returning her to Poland would cause serious curricular difficulties and impair her prospects of entering higher education.

Carnwath J dismissed the application. On appeal, the parties agreed that the court should review the Secretary of State's later decision made after the Human Rights Act 1998 came into force and after further evidence about Polish education had been obtained.

The principal issues were whether immigration removal engaged article 2 of Protocol No. 1, whether return to Poland would deny the daughter an effective education, and whether the refusal of exceptional leave was irrational.

1. Disposition. The court unanimously dismissed the appeal. Return to Poland would not deny the appellants' daughter an effective education, and the Secretary of State's refusal of exceptional leave to remain was rational.
2. Immigration control and article 2. The Strasbourg jurisprudence indicated that a non-absolute right such as the right to education was not engaged by the exercise of legitimate immigration control. A child's enjoyment of education in the United Kingdom did not carry a right to remain. The Secretary of State had to consider alleged educational difficulties as compassionate grounds for exceptional leave, but was not obliged to decide whether article 2 would be infringed in the country of origin. The court expressly refrained from deciding that point authoritatively because the appeal could be resolved on other grounds.
3. Scope of the right to education. Assuming article 2 was engaged, it guaranteed access to existing educational institutions and an effective education meeting a minimum standard. It did not confer a right to the most effective possible education, an education described more broadly as appropriate, or education in a particular country. The Convention therefore did not invite comparisons between national educational systems.
4. Application. The fact that the daughter would receive a better education in the United Kingdom was insufficient. Poland had a developed education system. Although re-entry after several years abroad could create difficulties, the evidence showed that she was highly able and had maintained a high standard of Polish. She would not be denied an effective education on return.
5. Proportionality and irrationality. Since there was no breach of article 2, proportionality did not arise. The Secretary of State had considered the educational evidence. His refusal of a concession outside the Immigration Rules was not irrational, particularly given the caution required before judicial interference with that discretion.

1. Court of Appeal: Unanimously dismissed the appeal from Carnwath J's order. Leave to appeal to the House of Lords was refused.
2. High Court, Queen's Bench Division: Carnwath J dismissed the application for judicial review on 8 October 1999. Before the Court of Appeal, the parties agreed that the later decision made after further evidence and the commencement of the Human Rights Act 1998 should be reviewed, so the appellate court acted as a reviewing court of first instance.