Tigere, R (On the Application Of) v Secretary of State for Business, Innovation & Skills -And- Student Loans Company Ltd

Where eligibility for higher-education funding engages the right to education, the court must scrutinise the justification for exclusion with care. A general Wednesbury review is insufficient. The appropriate inquiry is proportionality: importance of the objective, rational connection, less intrusive means, and fair balance.

A blanket exclusion based on immigration status is unlawful where the decision-maker has not adequately considered individual circumstances, the impact of delay, alternative criteria, or workable exceptions. Administrative simplicity and unsupported assertions of unworkability do not establish proportionality. Temporary admission is not equivalent to lawful immigration status or ordinary residence for these purposes.

The claimant, a Zambian national brought to the United Kingdom as a child, had lived and been educated here for most of her life. She held discretionary leave to remain but did not have indefinite leave to remain or fall within any special category under the student-support regulations.

She challenged her exclusion from eligibility for a state-backed student loan on grounds under Article 2 of Protocol 1 and Article 14 of the European Convention on Human Rights. She also argued that temporary admission counted towards the three-year ordinary-residence requirement. The claim followed the first-instance decision in R (Kebede & another) v Secretary of State for Business, Innovation and Skills, [2013] EWHC 2396 (Admin), although the appeal in that case was discontinued.

1. Proportionality. Eligibility for financial support for higher education fell within the ambit of Article 2 of Protocol 1. The legitimate aim of prioritising persons likely to remain in the United Kingdom and contribute to its economy was accepted. The court nevertheless held that a careful proportionality analysis was required. The four-stage inquiry was whether the objective was sufficiently important, whether the measure was rationally connected to it, whether a less intrusive measure could be used without unacceptably compromising it, and whether a fair balance had been struck.
2. The approach of asking only whether the exclusion was manifestly without reasonable foundation did not adequately reflect the court’s duty where Convention rights were engaged. A blanket exclusion of persons with discretionary leave had not been justified by cogent evidence. The decision-maker had not properly considered the detrimental effect of delay, the claimant’s degree of integration, her education in the United Kingdom, or possible exceptions and alternative criteria. Assertions that a more nuanced scheme would be administratively unworkable were insufficient.
3. The discriminatory aspect of the exclusion was materially relevant to justification, although in the particular circumstances Article 14 added nothing separate to the Article 2 of Protocol 1 analysis. Mere saving of cost could not justify discrimination.
4. The claimant’s temporary admission did not constitute immigration status equivalent to lawful residence. It was a holding position pending determination of status. Nor was it logically analogous to lawful residence for Article 14 purposes. Ground 4 therefore failed.
5. Ground 3 was not addressed because it was unnecessary. The claim succeeded on the principal proportionality ground, and the blanket exclusion was unlawful.

The claim was a first-instance judicial review. The judgment records that the appeal in R (Kebede & another) v Secretary of State for Business, Innovation and Skills, [2013] EWHC 2396 (Admin), was discontinued. The court indicated that an appeal from this judgment was likely, but no appellate decision is stated.