Tigere, R (On the Application Of) v Secretary of State for Business, Innovation And Skills

The Court of Appeal allowed the Secretary of State's appeal and dismissed the claimant's cross-appeal. The court held that the Education (Student Support) Regulations 2011, which make eligibility for state-backed student loans dependent on a bright-line test of settlement (indefinite leave to remain) and three years' lawful ordinary residence, do not violate Article 2 of the First Protocol (A2P1) or Article 14 ECHR. The court applied an exacting proportionality analysis informed by the guidance in Bank Mellat but recognised a very broad margin of discretion for the Secretary of State in allocating scarce public funds for higher education.

The court concluded that (i) the Secretary of State is entitled to adopt a bright-line rule based on settled status in order to secure certainty and administrability in the student loan scheme; (ii) reliance on the settlement criterion does not require the Secretary of State to track or second-guess the detailed content of the Home Office's Immigration Rules; and (iii) the Regulations are rationally connected to the legitimate aim of prioritising limited funds for those with a firm connection to the United Kingdom. The claimant's arguments that temporary admission should count as lawful residence and that the claimant's childhood overstaying should be disregarded were rejected.

The claimant, a Zambian national brought to the United Kingdom aged six who had lived and been educated in the UK, applied for a student loan but was refused on the ground she was not an "eligible student" under the Education (Student Support) Regulations 2011 because she lacked settled status (indefinite leave to remain) and did not meet the three years' lawful ordinary residence requirement. Proceedings in the Administrative Court (Hayden J) raised principally whether the exclusion breached Article 2 of the First Protocol (right to education) and Article 14 (non-discrimination). Permission to appeal was granted. The Secretary of State appealed on grounds one and two of the judicial review; the claimant cross-appealed on ground four concerning lawful residence.

The Court examined the statutory framework (section 22 Teaching and Higher Education Act 1998 and delegated regulations in the 2011 Regulations), the definition of "settled" (via section 33(2A) Immigration Act 1971 in the Regulations), and the policy justification for prioritising funds for those likely to remain in the United Kingdom. The court treated the proportionality issues in the light of Bank Mellat (Lord Sumption and Lord Reed) but emphasised a broad margin of discretion for policy-making in the distribution of scarce higher education funds. The principal legal issues were:

• Whether exclusion from loan eligibility on the basis of immigration status engages A2P1 and Article 14 (it does);
• Whether the discrimination is justified by a proportionate public policy (the court found it was); and
• Whether temporary admission or childhood overstaying should count as lawful ordinary residence (the court rejected those arguments).

The court rejected the claimant's submission that the Regulations should be read to allow case-by-case exceptions to avoid Convention breaches. It held that a bright-line rule is lawful and justified by the need for certainty, administrability and the fair allocation of limited public funds, and that the Secretary of State may rely on the settled-status criterion without being required to mirror every change in the Immigration Rules. The court allowed the Secretary of State's appeal on grounds one and two and dismissed the claimant's cross-appeal on ground four. The judgment also recognised that the Secretary of State should periodically review the operation of the eligibility criteria in the light of major changes in immigration policy.

Appeal allowed. The Court of Appeal held that the Education (Student Support) Regulations 2011 provide a lawful and proportionate bright-line rule for eligibility to student loans based on "settled" status and three years' lawful ordinary residence. The Secretary of State enjoys a broad margin of discretion in distribution of scarce higher education funds; reliance on the settlement criterion does not require the Secretary of State to track the detailed content of changing Immigration Rules. The claimant's cross-appeal that temporary admission counts as lawful residence and that childhood overstaying should be disregarded was dismissed. The court emphasised the need for periodic review of the regulations in light of immigration policy changes.

This is an appeal to the Court of Appeal (permission granted) from the Administrative Court (Hayden J) judgment dated 17 July 2014 ([EWHC] Admin 2452). The appeal was heard in the Court of Appeal and determined by Laws LJ, Floyd LJ and Vos LJ on 31 July 2014. Earlier related proceedings raising similar issues included Kebede [2013] EWHC (Admin) 2396 (Burnett J).