OA v Secretary of State for Education

The claimant, a Nigerian national who obtained indefinite leave to remain as a victim of domestic abuse, was refused a student loan under the Education (Student Support) Regulations 2011 because she did not satisfy the three-year lawful ordinary residence requirement in Schedule 1 paragraph 2(1)(a)(iii). The claimant brought judicial review, arguing that the three-year lawful residence requirement disproportionately disadvantaged women in breach of Article 14 of the European Convention on Human Rights when read with Article 2 of the First Protocol (right to education).

The court held that the three-year lawful ordinary residence requirement did have a disproportionate adverse effect on women because most grants of ILR under the domestic-violence route are to women and because domestic abuse may cause gaps in lawful leave (for example where a controlling spouse withholds documents). The Secretary of State failed to justify that discrimination: the asserted policy reasons (administrative convenience, bright-line rules and the relation to immigration policy) did not outweigh the disadvantage. The court therefore found a breach of Article 14 read with Article 2 of the First Protocol, made a declaration to that effect and quashed the decision of 26 June 2019 refusing the claimant a loan.

The claimant arrived in the United Kingdom in 2011 on Tier 4 student leave, later married a British citizen and was granted leave as his spouse until September 2016. After leaving an abusive relationship she applied for and was granted leave as a victim of domestic violence and later indefinite leave to remain under the domestic violence route. In 2018 she applied for a student loan but the Student Loans Company refused on the basis she did not satisfy the three-year lawful ordinary residence requirement in Schedule 1 paragraph 2(1)(a)(iii) of the Education (Student Support) Regulations 2011. She sought judicial review, alleging unlawful discrimination contrary to Article 14 ECHR taken with Article 2 of Protocol 1 (right to education).

The issues framed by the court were (i) whether the 2011 Regulations disproportionately disadvantaged women (indirect discrimination within the ambit of A2P1), and if so (ii) whether that discriminatory effect was objectively justified. The Secretary of State relied on public policy aims, administrative convenience, the relation between immigration rules and student finance and the fact that victims may obtain ILR more quickly as a countervailing advantage. The court considered Strasbourg and domestic authorities on indirect discrimination and the proper justificatory test (drawing on R (Tigere) and R (DA)), and examined factual material including Home Office guidance and statistics indicating that the large majority of DV-ILR grants are to women.

The court concluded that the three-year lawful residence requirement did disproportionately disadvantage women in the claimant's position, and that the Secretary of State had not shown a proportionate justification: the administrative burdens and policy reasons proffered did not outweigh the disadvantage, particularly in light of the fact that the Home Office and the Secretary of State subsequently amended the student support regulations (SI 2020 No.46) for future courses. The claimant therefore succeeded; the court declared a breach of Article 14 read with A2P1 and quashed the decision of 26 June 2019 refusing the loan. The court declined to make a mandatory order as unnecessary.

The claim succeeded. The court declared that the application of the 2011 Regulations (the three-year lawful ordinary residence requirement) to the claimant breached Article 14 read with Article 2 of the First Protocol because it indirectly discriminated against women and the discrimination was not objectively justified. The decision of 26 June 2019 refusing the claimant a loan was quashed on that basis.

Permission to bring the application for judicial review was granted by Supperstone J at an oral renewal hearing. Anonymisation of the claimant was ordered by Roger Ter Haar QC (Deputy High Court Judge) on 16 January 2020. Not an appellate judgment; first-instance judicial review determination in the Administrative Court.