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Public law and Regulation

Case reports and guidance on public law and professional regulation issues

28 AUG 2013

Kebede and Another v Secretary of State for Business Innovation and Skills [2013] EWHC 2396 (Admin); (2013) PLLR 094

Education - Immigration - Financial Support - Leave to remain

The Claimants failed to establish that the Defendant was required to provide them with financial support in order to comply with its obligations under Article 2 of Protocol 1 of the European Convention on Human Rights.

31 July 2013

Administrative Court

Burnett J

(1) The Claimants were two Ethiopian nationals who had discretionary leave to remain in the UK. Each wished to go to university, but were not eligible for student loans to pay tuition fees. Student loans are available to all those with indefinite leave to remain the UK or those who have humanitarian protection. On behalf of the Claimants, it was contended that the failure to provide them with student loans breached their rights under Article 2 of Protocol 1 of the European Convention on Human Rights (‘No person shall be denied the right to education').

(2) It was further contended that denying the Claimants' student loans on the basis of their immigration status constituted unlawful discrimination in breach of Article 14 ECHR when read with Article 2 of Protocol 1.

(3) Both Claimants sought asylum in 2008, but their applications were refused. The Claimants both had discretionary leave to remain until 30 November 2014, but Claimant A has 3 years continuous lawful residence, whilst Claimant Y does not. Each of the Claimants will have been in the UK for 10 years by the time that their discretionary leave to remain expires, as such there will be no realistic prospect of their removal.

(4) HELD: Schedule 1 of the Education (Student Support) Regulations 2011 (‘the 2011 Regulations') sets out who eligible students are for the purposes of receiving student loans. These regulations cover individuals with indefinite leave to remain, demanding that such individuals demonstrate that they are ordinarily resident on the first day of the course, and have been for the three years prior to that date. The Claimants do not fall within the categories of eligible individuals, lacking indefinite leave to remain and being without humanitarian protection.

(5) Referring to cases that had come before the European Court of Human Rights, the Court emphasised that there was no authority to say that a State was under an obligation to provide financial support to students in higher education, as part of its Article 2 Protocol 1 obligations. The Court held that to conclude that the State was obliged to provide financial support would ‘run ahead of the Strasbourg jurisprudence in a way which is impermissible'.

(6) Nonetheless, the Court held that the Claimants were in an analogous situation to individuals with asylum or humanitarian protection in so far as tertiary education was concerned. The Court did not accept the Defendant's submission that the funding arrangements were too remote from the right to education to fall outside the ambit of article 2 Protocol 1, and thus required consideration with reference to Article 14.

(7) The Court rejected the Claimants' submission that the normal deference as to resource decisions should not apply to higher education. Given the frequent rate of grants of discretionary leave to remain, if loans were available to this category of persons, there would inevitably be considerable demands on the budget.

(8) The Court was satisfied that the limits on who could receive a loan were justified for the purposes of Article 14. In this regard, the Court referred to the Defendant's justifications of scant resources and a need to spend money on those who were entitled to remain in the UK and benefit the economy. The application of clear eligibility parameters made sense and there was no discretionary judgment to be made.

(9) It could not be said that the Claimants' ineligibility for student loans denied them the opportunity to take up offers to go to university. This would only happen if the Council (the local authority responsible for unaccompanied asylum seekers) decided to refuse support under the Children Act 1989. The Court held that the Claimants had not established grounds for judicial review. The claim was thus dismissed.

Claim dismissed

Key paragraphs

[18] - Not eligible.

[24] - No authority obligation financial support.

[26] - Not exceed Strasbourg.

[31] - Difference in treatment.

[35] - Resource decisions.

[41] - Budget implications.

[46] - No discretion.

[48] - Opportunity to go to university.

[49] - Conclusion.

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