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

Access to higher-education funding falls within the ambit of Article 2 of the First Protocol, and exclusion based on immigration status engages Article 14. The Convention does not require the state to fund every successful candidate, regardless of status.

A bright-line eligibility rule may be lawful where it advances the legitimate aim of directing scarce funds towards those likely to remain and contribute in the United Kingdom, and individual exceptions would be uncertain or unworkable. Proportionality requires the structured approach in Bank Mellat v HM Treasury (No 2) [2013] UKSC 39. A settlement requirement need not track changing Immigration Rules. Temporary admission does not constitute lawful ordinary residence.

The claimant, a Zambian national brought to the United Kingdom aged six, had been educated here and wished to attend university. She held discretionary leave to remain but was not settled and therefore fell outside the basic eligibility category in the Education (Student Support) Regulations 2011.

She challenged the exclusion of persons with discretionary leave as incompatible with Article 2 of the First Protocol and Article 14. She also argued that temporary admission counted as lawful ordinary residence and that her childhood overstay should not count against her. The Secretary of State appealed the Administrative Court's decision on grounds one and two, and the claimant cross-appealed on ground four. The central issues were whether the eligibility rules were proportionate and whether the residence requirement had been met.

Disposition. The Secretary of State's appeal on grounds one and two was allowed. The claimant's cross-appeal on ground four was dismissed.

1. Eligibility for higher-education financial support fell within the ambit of Article 2 of the First Protocol. Exclusion by reference to immigration status engaged Article 14, but neither provision required funding to be made available to every successful candidate.
2. The legitimate aim was to direct scarce public funds towards persons likely to remain in the United Kingdom, complete their education and benefit the economy. A bright-line rule was justified, and perhaps required, because case-by-case exceptions would create uncertainty, arbitrariness, delay and administrative difficulty.
3. The proportionality assessment required the four-stage analysis stated in Bank Mellat v HM Treasury (No 2) [2013] UKSC 39. In this national strategic resource context, higher education deserved a high priority and the Secretary of State enjoyed a very broad margin of discretion. The formulation that a measure must be manifestly without reasonable foundation was not helpful in this field. Cost-saving alone could not justify discrimination.
4. The Secretary of State was entitled to use settlement as the basic eligibility criterion and was not required to track changes in the Immigration Rules or devise a lesser, sub-bright-line test. The legality of the Immigration Rules could be assumed unless successfully challenged. Lord Justice Vos added, in separate reasoning, that the scheme should be reviewed periodically against changes in immigration policy, but considered that the theoretical availability of indefinite leave to remain on child-welfare grounds preserved proportionality.
5. Temporary admission under paragraph 1 of Schedule 2 to the Immigration Act 1971 did not amount to lawful ordinary residence. The claimant's childhood and lack of responsibility for the overstay did not require an exception to the bright-line rule.

• Court of Appeal (Civil Division): allowed the Secretary of State's appeal on grounds one and two and dismissed the claimant's cross-appeal on ground four: [2014] EWCA Civ 1216.
• High Court of Justice, Queen's Bench Division: decision of Hayden J in the Administrative Court dated 17 July 2014, appealed to the Court of Appeal: [EWHC] Admin 2452.