09 OCT 2014
Tigere v Secretary of State for Business, Innovation & Skills and Student Loans Company Ltd  EWHC 2452; (2014) PLLR 079
Queen’s Bench Division, Administrative Court, Hayden J
17 July 2014
The Secretary of State for Business, Innovation and Skills failed to engage with the rationality or proportionality of a blanket exclusion of people on limited leave to remain from accessing loans for higher education.
(1) This claim concerns a challenge to the exclusion of the Claimant, a Zambian national, from eligibility for a student loan.
(2) The claimant entered the country lawfully in 2001 at age 6, though she and her mother overstayed their leave after 2003. In 2010, the claimant and her mother were granted temporary leave to remain. In 2012, they were granted 3 years discretionary leave, with an option to seek a further 3 years in 2015 and indefinite leave to remain in 2018.
(3) The claimant obtained acceptance to university and sought a loan from the Secretary of State for Business, Innovation and Skills in 2013. Under the Education (Student Support) Regulations SI 2011/1986, she is not eligible as a result of her immigration status, though she could become eligible upon being granted indefinite leave to remain in 2018. She has no other realistic means of paying for a university education.
(4) The parties agreed that higher education and financial support for it fall within the ambit of Protocol 1, Article 2 ECHR, and that prioritising limited funds to support higher education for the benefit of people likely to remain in the UK is a legitimate aim. It was also largely agreed that education has substantial personal, as well as societal benefits, and that the effect of the claimant’s present ineligibility for a loan would likely have the effect of delaying rather than denying her higher education.
(5) The claimant challenged her exclusion from eligibility on four grounds:
(1) the blanket exclusion from eligibility predicated entirely on a person’s limited leave to remain is a disproportionate interference with her right of access to education under Article 2, Protocol 1;
(2) the blanket exclusion unjustifiably discriminates against the claimant on the grounds of her immigration status and ultimately her national origin;
(3) if the claimant's exclusion from eligibility for a student loan arises because she has not made a failed claim for asylum that, is irrational and would violate both her rights under Article 2, Protocol 1 and Article 14; and
(4) the claimant meets the statutory requirements of three years lawful ordinary residence by virtue of her earlier time in the UK.
(6) On ground (1), the claimant’s primary contention was that the blanket policy had no regard for the strength of her connection to the UK or real prospects of remaining here indefinitely. She emphasized s 6 HRA, which requires public authorities to act compatibly with convention rights. The defendant disputed that he is under any duty to incorporate criteria of eligibility for those with leave to remain, and that ‘the application of clear parameters for eligibility for a loan makes sense.’
(7) HELD: The court considered grounds (1) and (2) together, and held that there was no real engagement by the defendant in a justification of the rationality or proportionality of the ‘blanket exclusion’ measure for people in the claimant’s position. The Equality Impact Assessments of the policy did not illustrate any recognition or consideration of possible discrimination. The court also found it reasonable to extrapolate that the defendant had not considered the detrimental impact of a potentially significant delay in accessing higher education for those without an alternate source of funding.
(8) The defendant’s arguments of ‘the administrative un-workability of any eligibility criteria’ for people such as the claimant were also unsupported by any cogent evidence. The person’s degree of integration into UK life and the extent to which she or he has already been educated in the UK were seen as the framework criteria.
(9) The court did not make any orders as a result of this finding, as the case was to be heard in the Court of Appeal on 28th July.
(10) Ground (3) was not addressed in light of the conclusion on ground (2).
(11) Ground (4) failed on the court’s finding that temporary admission cannot be equated with an immigration status, as it is merely a holding position until status is determined; periods of unlawful residence similarly cannot be counted.
Claim partially succeeded; no orders were made due to pending Court of Appeal hearing.
– –Consideration of discrimination
 – Unworkability of a scheme
 – Ground not addressed
 – Ordinary residence