JawAd Naeem (R on the application of) v SECRETARY OF STATE FOR EDUCATION

The regulation of student finance falls within the ambit of the right to education under Article 2 of the First Protocol. “Other status” under Article 14 is construed broadly and may be acquired, temporary and defined by the circumstances of the case, provided it is more than a mere description of the difference in treatment.

A rigid eligibility date may unlawfully discriminate where it excludes a clearly identifiable cohort who satisfy the substantive purpose of the scheme but were prevented by exceptional administrative disruption from obtaining the required status in time. Bright-line rules and administrative certainty are legitimate aims, but they do not justify a disproportionate failure to mitigate such discrimination where a narrowly confined remedy is practicable.

The claimant and interested party challenged refusals of student finance under the Education (Student Support) Regulations 2011. Both had applied for indefinite leave to remain but, following the withdrawal of the Home Office priority and super-priority services during the Covid-19 pandemic, obtained settled status shortly after 1 September 2020, the first day of their respective academic years.

The Regulations made eligibility depend on being settled on that date and provided no discretion for exceptional circumstances. The applicants argued that applying the rule to them breached Article 14 read with Article 2 of the First Protocol. The central issues were whether they possessed an “other status”, whether there was relevant differential treatment, and whether the treatment was objectively and reasonably justified.

1. Claim succeeded. The court declared that the defendant had unlawfully discriminated against the claimant and interested party and granted a quashing order.
2. Student finance has more than a tenuous connection with access to university education and therefore falls within the ambit of Article 2 of the First Protocol. Article 14 applied through the established four-stage inquiry concerning ambit, status, differential treatment and justification.
3. The relevant “other status” could be identified by considering the whole circumstances. The applicants formed a clearly identifiable cohort: persons who had applied for indefinite leave to remain in time, were substantively entitled to it, but obtained it after the relevant date because the priority services had been withdrawn. That was more than a mere description of the difference in treatment.
4. The applicants were in a relevantly analogous position to persons whose applications were processed before 1 September 2020. They were equally connected with the United Kingdom for the purposes of the student-finance scheme and equally likely to contribute to society and repay the public subsidy. Applying the cut-off date to them therefore failed to reflect the objectives of the Regulations.
5. Certainty and the operation of a bright-line rule were legitimate aims. They did not justify the discrimination. The severe consequence was exclusion from finance for the whole course, and the affected class was tightly confined and capable of precise identification. A retrospective mitigation scheme was therefore practicable and proportionate.
6. The court rejected the argument that the applicants’ position involved merely a slight delay or resulted solely from a prospective change in legislation. The discrimination arose from the distinct circumstance of the withdrawal of the priority services and the defendant’s failure to mitigate its effect.
7. The court did not prescribe the detailed remedy. The parties were to consider the working out of the remedy at a consequentials hearing.

The judgment is a first-instance decision of the High Court (Administrative Court). The applicants had exhausted the statutory appeal process and referred their cases to an Independent Assessor before bringing the judicial review claim.