Kebede & Anor v Secretary of State for Business Innovation and Skills

Article 2 of Protocol 1 does not impose a positive obligation to establish or subsidise higher education. Where the State provides higher education, however, effective access to it falls within the provision’s scope. Student-loan arrangements may therefore fall within the ambit of article 14 when read with Article 2 of Protocol 1.

In the context of university funding and economic or social policy, the State enjoys a wide margin of appreciation. The relevant justification test is whether the measure is manifestly without reasonable foundation. A scheme limiting loans to persons with settled status or a need for international protection was justified by resource constraints and the likelihood of continued residence. The availability of lawful alternative support was also material.

The claimants were Ethiopian nationals with discretionary leave to remain. They had been brought to the United Kingdom as children, abandoned by their father, and became the responsibility of Newcastle City Council under the Children Act 1989. They sought university places but were ineligible for tuition-fee loans under the Education (Student Support) Regulations 2011.

They sought judicial review of the Secretary of State’s refusal to provide loans, alleging breaches of Article 2 of Protocol 1 and article 14 of the Convention. The central issues were whether the funding scheme engaged those provisions, whether the difference in treatment was justified, and whether the Council’s statutory duties meant that the claimants were denied practical access to higher education.

1. Article 2 of Protocol 1. The provision does not require the State to establish or subsidise education at any particular level, following the Belgian Linguistics Case (No 2) (1968) 1 EHRR 252. Higher education nevertheless falls within its scope where institutions exist. The court could not extend the Convention beyond the Strasbourg jurisprudence: R (Ullah) v Special Adjudicator [2004] 2 AC 323.
2. Article 14. The student-loan arrangements were not too remote from the right to education to fall within the ambit of Article 2 of Protocol 1. The claimants were in an analogous position to persons with refugee status or humanitarian protection. R (Douglas) v North Tyneside Metropolitan District Council [2003] EWCA Civ 1847 did not establish an inflexible rule excluding individual funding arrangements from article 14. The facts of that case, including the availability of alternative funding, were material.
3. Justification. In the field of university education, the State has a wide margin of appreciation. The question was whether the measure was manifestly without reasonable foundation, applying the approach in Ponomaryov v Bulgaria (App. No. 5335/05), Humphreys v Revenue and Customs Commissioners [2012] 1 WLR 1545 and R (RJM) v Secretary of State for Work and Pensions [2009] AC 311. Limiting support to those likely to remain permanently or requiring international protection was justified by scarce resources, administrative clarity and the prospect of economic benefit.
4. The suggested discretionary exception for persons likely to obtain indefinite leave to remain was impractical. Staff would have to anticipate future immigration decisions, and the scheme’s clear eligibility criteria would be undermined.
5. The claimants’ position was further affected by the Council’s duties under the Children Act 1989. The Court of Appeal had held that the Council must support former relevant children to the extent their welfare and educational or training needs required. The claimants therefore had not shown that exclusion from the loan scheme denied access to university or produced unlawful discrimination. The judicial review claim was dismissed.

The judgment stated that the claimants had succeeded against Newcastle City Council in [2013] EWHC 355 (Admin). The Court of Appeal dismissed the Council’s appeal on the day of this judgment. The present judicial review claim against the Secretary of State was dismissed.