Nyoni, R (on the application of) v Secretary of State for Business, Innovation and Skills & Ors

A policy supplementing an unlawful eligibility condition may use a bright-line residence rule, even though some applicants with strong UK connections fall on the wrong side of it. Such rules inevitably produce hard cases and are not unlawful merely because their application has adverse effects on some individuals. A decision-maker bound by a policy must consider whether an individual case is exceptional enough to justify departure, and the decision must be one which could reasonably have been reached. The claim succeeded because the claimant’s unusual position, having already completed a year of her course and being uniquely disadvantaged among the cases considered, made it unreasonable to treat her case as unexceptional.

The claimant, who had limited leave to remain in the United Kingdom, challenged the Secretary of State’s refusal of student-loan support. The refusal was made under an interim policy issued after the Supreme Court’s decision in R (on the application of Tigere) v Secretary of State for Business, Innovation and Skills, which had held the settlement requirement in the student-support regulations incompatible with Convention rights as applied to the relevant cohort.

The claim argued that the interim policy entitled the claimant to funding, was itself unlawful, and required her case to be treated as exceptional. The central issues were the date by which residence had to be measured, the lawfulness of the bright-line criteria, and whether the Secretary of State could reasonably reject the claimant’s exceptional-case argument.

1. Construction of the interim policy. The policy supplemented, rather than replaced, the settlement condition in para 2(1)(a) of Part 2 of Schedule 1 to the 2011 Regulations. The relevant date was the first day of the first academic year of the course. The claimant did not satisfy either alternative long-residence criterion by that date and therefore was not entitled to a loan under the policy.
2. Lawfulness of the policy. The Supreme Court’s decision in Tigere did not establish that every member of the relevant cohort had to receive a loan, or that every replacement rule had to secure that result. It required recognition of the cohort’s position, while permitting a clear bright-line rule. Hard cases falling on the wrong side of such a rule do not, without more, establish unlawful discrimination. The claimant’s challenge to the policy therefore failed.
3. Exceptional circumstances. A public decision-maker bound by a policy must consider whether the particular case justifies departure from it, unless exercising the prerogative. The decision must be one which could reasonably have been reached. The principle in R (on the application of Rogers) v Swindon NHS Primary Care Trust may also apply where the policy does not expressly require exceptional cases to be considered but the decision-maker elects to consider them.
4. The claimant’s integration, academic performance and financial difficulty were common to many applicants. Her position was nevertheless materially different because she had already completed a year of the course and faced repeating it, losing educational momentum and suffering a substantial delay. The available figures indicated that she was uniquely placed among the applications considered. It was therefore not reasonably open to the Secretary of State to treat her case as unexceptional.
5. The claim for judicial review was allowed. The court declared that the claimant’s personal circumstances required exceptional treatment. It did not order the Secretary of State to grant the loan, leaving him to act on the declaration. Costs were left for agreement, subject to the Secretary of State having succeeded on the two issues affecting the wider cohort.