OA v Secretary of State for Education

A student-loan eligibility requirement may constitute indirect sex discrimination where it disproportionately disadvantages women, even though other features of the wider immigration scheme may benefit the same group. The court must assess the challenged measure or provision, rather than balancing unrelated advantages and disadvantages across the whole scheme.

Where discrimination is established, the state must justify it by reference to a legitimate aim, rational connection, less intrusive means and a fair balance. Ex post facto reasons receive respect when bona fide and within the decision-maker’s expertise, but require greater scrutiny. Administrative convenience and a bright-line rule may not outweigh serious educational disadvantage where a less intrusive alternative is available.

The claimant, a Nigerian national settled in the United Kingdom, had been granted indefinite leave to remain as a victim of domestic abuse. She was refused a student loan because she could not show three years’ lawful ordinary residence before the start of her course under the Education (Student Support) Regulations 2011.

She sought judicial review, alleging discrimination contrary to Article 14 of the Convention read with Article 2 of the First Protocol. The Secretary of State accepted that the measure was within the ambit of the right to education, but disputed discrimination and justification. The central issues were whether the three-year requirement disproportionately disadvantaged women and, if so, whether that effect was justified.

1. The claim succeeded. The three-year lawful-residence requirement in Schedule 1 paragraph 2(1)(a)(iii) of the Education (Student Support) Regulations 2011 discriminated against the claimant as a woman and was not justified under Article 14 read with Article 2 of the First Protocol.

2. The relevant comparison was the individual requirement or measure, not the overall package of immigration and student-finance rules. The claimant’s need to show three years’ lawful residence was a discrete condition. The possibility that victims of domestic abuse might obtain indefinite leave to remain more quickly did not eliminate the disadvantage caused by that condition. The approach in R (H) v Ealing London Borough Council [2017] EWCA Civ 1127 and Essop v Home Office [2017] 1 WLR 1343 supported that conclusion.

3. The Secretary of State bore the burden of justification. The applicable inquiry required consideration of whether the measure pursued a legitimate aim, was rationally connected to it, represented the least intrusive means available and struck a fair balance between individual rights and community interests. The framework stated in R (Tigere) v Secretary of State for Business, Innovation and Skills [2015] UKSC 57 was materially relevant, although the present challenge differed from that in Tigere.

4. The asserted justifications, including administrative simplicity, the value of lawful residence as a proxy for belonging, and the limited financial cost of the scheme, did not establish a fair balance. Ex post facto reasons could be relied upon, but required greater scrutiny. The Education (Student Fees, Awards and Support etc) (Amendment) Regulations 2020 demonstrated that a less intrusive bright-line approach was practicable.

5. The argument that quicker access to indefinite leave to remain operated as a safety valve failed. A measure relied upon as a safety valve must overcome the relative disadvantage caused by the impugned requirement. An equal or separate advantage does not remove the discriminatory tilt. The court applied the reasoning in R (H) v Ealing London Borough Council [2017] EWCA Civ 1127 and R (Ward) v Hillingdon London Borough Council [2019] EWCA Civ 692.

6. The court made a declaration that the claimant’s Convention rights had been infringed and quashed the decision of 26 June 2019 refusing the student loan. A mandatory order was unnecessary.

First-instance judicial review. No earlier judicial decision in the same proceedings was stated.