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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Petition of Leo Huisman for Judicial Review [2025] CSOH 53 (24 June 2025)
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Cite as: [2025] CSOH 53

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OUTER HOUSE, COURT OF SESSION
[2025] CSOH 53
P196/24
OPINION OF LORD LAKE
In the Petition of
LEO BRUCE HUISMAN
Petitioner
for
Judicial Review of a decision as to student fee status by the University of the Highlands
and Islands
Petitioner: F Whyte, advocate; Lindsays LLP
First Respondent: P Reid KC; Thorntons Law LLP
First Interested Party: D Welsh, advocate; Scottish Government Legal Directorate
24 June 2025
[1]
The fees that may be charged by universities in Scotland are regulated by the
Education (Fees) (Scotland) Regulations 2011. These have now been superseded by
2022 Regulations but the earlier ones still apply to the present petitioner. The regulations
operate so that educational institutions may charge higher fees to some students than to
others. The petitioner is a student at the University of the Highland and Islands. He seeks
to challenge the decision of the university to charge him fees at the higher rate. The
university are the respondent to the petition and the Scottish Ministers appear as an
interested party.
2
[2]
Regulation 4 of the 2011 Regulations stipulates, (1) that it is lawful to charge higher
rates to students who do not have a relevant connection with Scotland, but (2) that it is not
lawful to charge higher relevant fees to a student who is an excepted student as defined by
the regulations. In the regulations, the definition of "relevant connection" is based
principally on ordinary residence in Scotland for a period of 3 years prior to the start of the
academic year in question. It is common ground that the petitioner does not meet this
requirement. It is also common ground that he does not fall within any of the categories of
excepted student if the regulations are given their ordinary or natural meaning. He
contends, however, that the way that the regulations have been applied by the university is
discriminatory and infringes Article 14 of the ECHR. The parties were largely agreed on the
law that applies to this issue and the divergence of views concerns how the law is to be
applied in the petitioner's circumstances
The issue
[3]
ECHR, Article 14 is in the following terms:
"Article 14
The enjoyment of the rights and freedoms set forth in this Convention shall be
secured without discrimination on any ground such as sex, race, colour, language,
religion, political or other opinion, national or social origin, association with a
national minority, property, birth or other status."
Article 2 of the First Protocol is in the following terms:
"Article 2
No person shall be denied the right to education. In the exercise of any functions
which it assumes in relation to education and to teaching, the State shall respect the
right of parents to ensure such education and teaching in conformity with their own
religious and philosophical convictions."
3
[4]
The parties were agreed that when applying Article 14, there are four matters that a
court should consider. These were set out in R (Stott) v Secretary of State for Justice,
[2018] UKSC 59, [2020] AC 51, by Lady Black as follows:
"8. In order to establish that different treatment amounts to a violation of article 14, it
is necessary to establish four elements. First, the circumstances must fall within the
ambit of a Convention right. Secondly, the difference in treatment must have been
on the ground of one of the characteristics listed in article 14 or `other status'.
Thirdly, the claimant and the person who has been treated differently must be in
analogous situations. Fourthly, objective justification for the different treatment will
be lacking. It is not always easy to keep the third and the fourth elements entirely
separate, and it is not uncommon to see judgments concentrate upon the question of
justification, rather than upon whether the people in question are in analogous
situations. Lord Nicholls of Birkenhead captured the point at para 3 of R (Carson) v
Secretary of State for Work and Pensions [2006] 1 AC 173. He observed that once the
first two elements are satisfied:
`the essential question for the court is whether the alleged discrimination, that
is, the difference in treatment of which complaint is made, can withstand
scrutiny. Sometimes the answer to this question will be plain. There may be
such an obvious, relevant difference between the claimant and those with
whom he seeks to compare himself that their situations cannot be regarded as
analogous. Sometimes, where the position is not so clear, a different approach
is called for. Then the court's scrutiny may best be directed at considering
whether the differentiation has a legitimate aim and whether the means chosen
to achieve the aim is appropriate and not disproportionate in its adverse
impact.'"
[5]
There is no dispute that the first two requirements are met. Charging fees and grants
provided for further education are within the ambit of Article 2 of the Third Protocol. There
is also no doubt that the second requirement is met either by reason of it being
discrimination on the basis of national origin or on the basis of "other status". The dispute
between the parties centres on whether or not there are persons in an analogous situation to
the petitioner who have been treated differently and/or whether or not there is justification
for the differential treatment.
4
Submissions for the petitioner
[6]
The petitioner contends that a number of the defined categories of accepted students
have the common core concept of humanitarian protection. They deal with a situation
where a student has been unable to remain in or return to their country of origin or ordinary
residence through no fault of their own and has been permitted to stay in the United
Kingdom for humanitarian reasons. It was noted that the categories are broadly in line with
the categories in immigration law of those to whom the United Kingdom gives forms of
protection to those arriving in the UK. It is submitted that the petitioner is in a similar
position to these groups. He was born and raised in South Africa and lived there until 2021.
However, he then had to flee with his mother following threats of retribution following her
having acted as a whistle-blower in relation to reporting corruption. It was said this had led
to harassment of her and threats being made to the family which the police and authorities
appeared to have been unable provide effective protection against. They family left South
Africa in early 2021 and do not consider it is safe to return.
[7]
The petitioner was accepted onto and commenced a BSc course in Optometry
in 2021. He did not meet the requirements to be considered "ordinarily resident" in
Scotland at that time and the university said to him he was classified as an International
Student such that he would have to pay higher fees. In the event, as a result of
administrative errors, he was required only to pay the fees charged to Scottish students in
his first year. Further error meant that this remained the position in his second year. The
error came to light in the third year. The university claimed the higher rate of fees from him
for the earlier years and the year of study he was about to undertake. There have been
discussions between the parties and the university have permitted payment over a longer
5
period but insist that the fees at the higher rate are due. Sums claimed by the university
remain unpaid.
[8]
The petitioner recognises that he cannot bring himself within the terms of any of the
categories of "excepted student" in the regulations. In particular, he does not fall within the
category of "refugee". The regulations define that term by reference to recognition by the
Government of a person's status in accordance with the 1951 United Nations Convention
relating to the Status of Refugees and its protocol. That requires that in general, for a person
to be a refugee, they must be unable to return to any country of which they are a national.
The petitioner has dual nationality. He has British citizenship through his mother and South
African citizenship by birth. As a British citizen, the petitioner has a right to enter and
remain in the United Kingdom and therefore cannot be a refugee in this country.
[9]
It was submitted that the way that the regulations are applied means that petitioner
is being treated differently solely on the basis of his British citizenship. It was emphasised
that this was not a challenge to the legality of the regulations as such. The petitioner submits
that the respondent and interested party have said little to justify this differential treatment.
It was claimed that there is no legitimate aim in predicating the definition of excepted
students on the basis of immigration status such that British citizens are never able to bring
themselves within the scope of the exceptions. The petitioner notes that in the
2022 Regulations now in force, there is a further category of excepted students for Ukrainian
nationals who have made an application under one of the schemes in in terms of which they
may be permitted to enter and to remain in the United Kingdom and, significantly, also a
category of UK nationals who were resident in Ukraine at the start of 2022 and who left in
connection with the Russian invasion on 24 February 2022. It was submitted that this is
recognition that there was a lacuna in the 2011 Regulations which, if it had been addressed
6
in the same way, would have meant that the petitioner would be considered an excepted
student. It was emphasised that the pursuer has not come to Scotland simply for the
purpose of taking up university education and instead he is someone who has had to flee his
place of residence abroad and has sought access to education under special circumstances.
On this basis it was submitted that he should therefore be treated in a manner akin to the
other exceptional cases.
[10]
If it was accepted that there was on the face of it a breach of Article 14, section 3 of
the Human Rights Act 1998 meant that the court required to read and give effect to the
regulations in a manner compatible with the convention "so far as possible". It is submitted
that this was possible by reading paragraph 4 of Schedule 1 to the regulations so as to
produce the following result:
"a refugee, or any person who would qualify for such humanitarian protection but for their
having British nationality, who has been ordinarily resident in the United Kingdom
and Islands at all times since that person was first recognised as a refugee, or ..."
The text in italics was additional text which it is submitted the court must "read in". It was
submitted that interpreting it in this way does not cut across the grain of the legislation and
simply extends the category of "excepted student" in a way analogous with the classes
already specified.
Submissions for the respondents and interested party
[11]
The university argue that the terms of the regulations reflect a careful policy choice
as to who should be recognised as excepted students. It is a choice as to how finite financial
resources will be allocated. In part, it aims to ensure tuition fees associated with higher
education are lower for students who normally live in Scotland and it was submitted that
that is a reasonable decision. It is submitted then that it is not constitutionally appropriate
7
for the university of itself to, in effect, revise regulations which have been approved by
Parliament.
[12]
The Scottish Ministers note that the rights afforded by Article 2 of the First Protocol
are not absolute. By reference to the Belgian Linguistics Case (No. 2) (1968) 1 EHRR 252), it
was noted that the nature of the right afforded by the article by their very nature called for
regulation by the state. A margin of appreciation to pursue legitimate aims was recognised
in Sahin v Turkey (2007) 44 EHRR 5 (ECtHR). The 2011 Regulations were put in place
because of the differing approach to tuition fees between Scotland on the one hand and the
rest of the United Kingdom on the other. The Scottish Government sought to charge lower
fees for university education. The issue was who should benefit from that. A decision had
been taken to limit it to students who, it might be thought, would maintain a longer term
connection with Scotland with the intention that there would be a benefit to Scotland. On
that basis, a decision was taken to remove any fee cap in respect of non-Scottish student. It
was emphasised that this was an element of policy of the Scottish Ministers to maintain free
access to higher education for students who normally live in Scotland. Therefore, if it was to
be subject to proportionality assessment, it would meet the test. The policy was necessary in
order to protect opportunities for students connected with Scotland. There was a concern
that otherwise, Scottish institutions would be overwhelmed with applicants from elsewhere
in the United Kingdom taking advantage of the absence of tuition fees. This was a legitimate
aim and the difference in treatment was rationally connected to it and a reasonable measure.
It was noted that in relation to the provision of education and related issues, there is a
margin of appreciation and that the margin is greater where higher education is concerned.
[13]
It was submitted that the mere fact that it had been thought necessary to address the
position of UK nationals in Ukraine in the 2022 Regulations was an indicator that the
8
2011 Regulations could not be read in the way the petitioner contends. If they could have
been, it would not have been necessary to make the new regulations.
Analysis and decision
[14]
The petitioner's case hinges on him being analogous to the categories of students
who are designated as excepted students, so that is the appropriate place to begin
consideration of the submissions. The provisions of the schedule which identify these
students may be summarised as follows:
·
Where the person is a refugee recognised by Her Majesty's Government
(paragraph 4).
·
Where the person has applied for refugee status but has as a result of that
application been informed in writing by a person acting under the authority of
the Secretary of State for the Home Department that, although that person is
considered not to qualify for recognition as a refugee, it is thought right to
allow that person to enter or remain in the United Kingdom and that person
has been granted leave to enter or remain accordingly (paragraph 5).
·
Where the person is an Iraqi national who has been granted indefinite leave to
enter the United Kingdom under the Locally Engaged Staff Assistance Scheme
(Direct Entry) operated by the Home Department (paragraph 6).
·
Where the person is a Syrian national who has been granted humanitarian
protection to enter the United Kingdom under the Syrian Vulnerable Persons
Relocation Scheme operated by the Home Department (paragraph 6A).
9
·
Where the person is an Afghan national who has been granted limited leave to
remain in the United Kingdom under the Locally Employed Staff Ex-Gratia
Scheme operated by the Home Department (paragraph 6B).
·
Where the person has been granted limited leave to remain in the United
Kingdom as a stateless person under the immigration rules operated by the
Home Department (paragraph 6C).
·
Where the person has been granted discretionary leave to remain in the United
Kingdom due to being identified as a victim of modern slavery (paragraph 6D).
·
Where the person is a person who has been granted temporary protection
(paragraph 7).
·
Where the person is the child of an asylum seeker or is a young asylum seeker
(paragraph 8).
[15]
I have noted above how the term "refugee" is defined. "Temporary protection"
means limited leave to enter or remain in the United Kingdom granted pursuant to Part 11A
of the Immigration Rules (the rules made and revised by the Secretary of State in terms of
the Immigration Act 1971, section 3(2)). In each category there is an extension to cover the
spouse, civil partner or child of the person so described and there are requirements as to
ordinary residence. In some, there is also an age requirement. None of those extensions or
additional requirements affects the current issue.
[16]
It is clearly correct for the petitioner to say that he is treated by the regulations in a
different way from those students who fall within the capacity of excepted students in the
2011 Regulations simply by the fact that there is no definition of "excepted student" which
covers his circumstances. The relevant issues in terms of Stott are therefore whether he
10
should be treated as being in the same position as the persons covered by the exceptions
and, if so, whether the difference in treatment can be justified.
[17]
The petitioner's argument is that he is in the same "cohort" as the persons who fall
within the exceptions. He submits that the category defined within paragraph 5 is the one
most closely analogous to his situation - not technically a refugee, but with the existence of
reasons which suggest there are good grounds for seeking protection as they fear what will
happen if they return to their former country of residence. He submits that the common
theme of all these categories of excepted student are a recognition of a need for
humanitarian or compassionate reasons to dis-apply the normal requirements for ordinary
residence. The core theme is that it covers people who have left their place of ordinary
residence and are unable to return for reasons which are no fault of their own and it was
submitted that this describes his situation exactly. It is merely the quirk of having British
nationality that means that he does not qualify but that is not relevant to the position he
finds himself in.
[18]
Although the petitioner points to the fact that all these categories relate to persons
who have had to flee their country of residence for humanitarian reasons, that is not the only
factor which binds the accepted categories. It is important, as was tangentially recognised
by the petitioner, that none of the categories has an automatic right to reside in Scotland /
the United Kingdom. The various categories concerning foreign nationals all include some
proviso for leave or permission having to be given for them to take up residence in the
United Kingdom. The petitioner, on the other hand, has an unconditional right to live
anywhere he chooses within the United Kingdom. In considering the allocation of resources
to provide grants for students, this is a material consideration. In passing the
2011 Regulations, the Scottish Government exercise a deliberate choice as to who would be
11
the beneficiary of funding for further education. At that time, they were, in part, restricted
by the United Kingdom's membership of the European Union. Nonetheless, even at that
time a distinction was drawn between persons with ordinary residence in Scotland and
those whose ordinary residence was in the remainder of the United Kingdom. A person
who had been born in and chosen to live in, say, Wales would nonetheless be able to become
the beneficiary of Scottish funding if they came and lived in Scotland for the period to
qualify them as ordinarily resident. They would have a right to take up that residence in
Scotland whenever they chose.
[19]
When considering the categories in the regulations in light of this, it is apparent that
the petitioner has more in common with the students from the rest of the United Kingdom
than he does with foreign nationals with no right to reside in any part of the United
Kingdom. He was in a position to qualify for Scottish funding if he chose as he had an
unconditional right to reside in Scotland. As that is the basis on which the Scottish
Government have determined that funding should be allocated, it cannot be said that the
petitioner is in the same category as foreign nationals who have no right to enter into the
United Kingdom save for falling into one of the excepted categories.
[20]
As the petitioner has not demonstrated that there was a breach of Article 14, the issue
of whether the regulations can be read in a manner consistent with his rights does not arise.
However, having heard submissions on the issue and in case this matter is considered
further, I express my views briefly.
[21]
I have set out above the way in which the petitioner contends paragraph 4 of
Schedule 1 to the regulations must be read. Section 3 the 1998 Act requires that the
legislation be read to give effect to the petitioner's rights and must be read and given effect
in a way which is compatible with convention rights. This is subject to the qualification that
12
that applies "so far as it is possible to do so". That qualification was considered in detail in
Ghaidan v Godin-Mendoza [2004] 2 AC 557. It established that it is not necessary that there be
ambiguity in a provision for the court to read it in a way that differs from the plain meaning
of the words used and that not only may the court be required to give an Act a meaning
other than the natural meaning of the words, it may require additional words to be read into
a provision. It is also clear that there are limits to this. They were described in that case by
Lord Rodger of Earlsferry as follows:
"It does not allow the courts to change the substance of a provision completely, to
change a provision from one where Parliament says x is to happen into one that says
x is not to happen. And, of course, in considering what constitutes the substance of
the provision or provisions under consideration, is necessary to have regard to their
place in the overall scheme of the legislation as enacted by Parliament."
[22]
This limit is inconsistent with giving effect to the pursuer's interpretation. The
2011 Regulations are intended to identify who will be the benefit of government subsidy of
further education costs. Though the subsidy is not paid directly to the student, the
regulations require that some students are charged a lower rate and the balance of the cost of
providing the education is provided by means of a block grant to the institution in question.
Although it is correct for the petitioner to point out that he is in a position in some respects
similar to other classes referred to in the regulations and it is likely to be true that the
number of persons who could bring themselves within the expanded category he desires
would be limited. This does not change the fundamental fact that the changes which the
petitioner desires would have the effect of altering the class of people to whom government
resources are directed. That is a matter particularly suited to decision by the democratically
elected government and not the courts. Therefore, had I been satisfied that there was a
breach of Article 14, I would not have granted the remedy of reading the regulations in the
13
way the petitioner desires but would have put the matter back out By Order to hear
submissions as to whether a declarator of incompatibility should be made.
Conclusion
[23]
For the reasons set out above, I repel the first and second pleas-in-law for the
petitioner, sustain the third, fourth and fifth pleas for the respondent, sustain the second
plea-in-law for the interested party and refuse the petition.
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