UKSC 57
On appeal from:  EWCA Civ 1216
R (on the application of Tigere) (Appellant) v Secretary of State for Business, Innovation and Skills (Respondent)
Lady Hale, Deputy President
JUDGMENT GIVEN ON
Heard on 24 and 25 June 2015
Helen Mountfield QC
(Instructed by Public Interest Lawyers)
Steven Kovats QC
Vikram Sachdeva QC
(Instructed by The Government Legal Department)
|Intervener (Just for Kids Law)
Karon Monaghan QC
(Instructed by Just for Kids Law)
LADY HALE: (with whom Lord Kerr agrees)
"Our experience suggests that young people find not being able to go to university, when that would be a natural educational progression alongside their peers, incredibly difficult. They have worked hard to do well at school and at college, and aspire to achieve the best they can. Seeing their friends and peers go to university when they cannot, and being aware of being held back for as long as ten years in pursuing qualifications that are essential in a competitive job market, inevitably causes these young people to feel marginalised. They feel that it is deeply unfair as they are not asking for a grant of money but only to be loaned the money which will allow them to progress, alongside their peers, into well-paid work so that they can pay that loan back."
The law on eligibility for student loans
"(1) Regulations shall make provision authorising or requiring the Secretary of State to make grants or loans, for any prescribed purpose, to eligible students in connection with their [undertaking] (a) higher education courses, which are designated for the purposes of this section by or under the regulations.
(2) Regulations under this section may, in particular, make provision (a) for determining whether a person is an eligible student in relation to any grant or loan available under this section. "
The Secretary of State for this purpose is the Secretary of State for Business, Innovation and Skills, and not the Secretary of State for Education, who is responsible for primary and secondary education, or the Secretary of State for the Home Department, who is responsible for immigration.
"(1) A person who on the first day of the first academic year of the course
(a) is settled in the United Kingdom ;
(b) is ordinarily resident in England;
(c) has been ordinarily resident in the United Kingdom and Islands throughout the three year period preceding the first day of the first academic year of the course; and
(d) whose residence in the United Kingdom and Islands has not during any part of the period referred to in para (c) been wholly or mainly for the purpose of receiving full-time education."
"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."
"Although similar arguments apply to a certain extent in the field of education which is one of the most important public services in a modern state they cannot be transposed there without qualification. It is true that education is an activity that is complex to organise and expensive to run, whereas the resources that the authorities can devote to it are necessarily finite. It is also true that in deciding how to regulate access to education, and in particular whether or not to charge fees for it and to whom, a state must strike a balance between, on the one hand, the educational needs of those under its jurisdiction and, on the other, its limited capacity to accommodate them. However, the court cannot overlook the fact that, unlike some other public services, education is a right that enjoys direct protection under the Convention. It is also a very particular type of public service, which not only directly benefits those using it but also serves broader societal functions. Indeed, the court has already had occasion to point out that '[i]n a democratic society, the right to education is indispensable to the furtherance of human rights [and] plays a fundamental role .' Moreover, in order to achieve pluralism and thus democracy, society has an interest in the integration of minorities" (para 55).
"she will be deprived of higher education at the time in her life when her primary and secondary education has led her reasonably to expect that she will go with her peers to university. She has no intention of leaving the United Kingdom. Her life was made here from the age of six and she is culturally and socially integrated into British society. Moreover, under article 8 her removal is simply not an option. The fact that she falls foul of the twin requirements of the 2011 Regulations is no fault of hers." (paras 74, 75).
The lawful ordinary residence criterion
" the applicants were not in the position of individuals arriving in the country unlawfully and then laying claim to the use of its public services, including free schooling. Any considerations relating to the need to stem or reverse the flow of illegal immigration clearly did not apply to the applicants' case" (para 60).
(a) principally, to target the not inconsiderable subsidy represented by the student loan scheme (about 45% of £9 billion per annum) on those who are properly part of the community (in this case of England, for there are separate and different rules for the other parts of the UK);
(b) thereby to target the subsidy on those who are likely to remain in England (or at least the UK) indefinitely, so that the general public benefits of their tertiary education will enure to the country's advantage;
(c) thereby to increase the likelihood that, because the recipients of the loans will probably remain here, the public will receive repayment; and
(d) to provide a rule which is easy to understand and apply, and inexpensive to operate, so that the minimum part of the available funds are taken up in administration costs.
Those are, as it seems to me, plainly legitimate objectives.
(i) the rule which requires the student to have been lawfully resident in the UK for three years immediately preceding the start of the University course;
(ii) the rule which requires the student to be "settled" in the UK as defined by section 33(2A) of the Immigration Act 1971.
"Subject to paragraph (3) a person is an eligible student in connection with a designated course if (a) in assessing that person's application for support the Secretary of State determines that the person falls within one of the categories set out in Part 2 of Schedule 1 or (b) where the grant of support is necessary in order to avoid a breach of the person's Convention rights (within the meaning of the Human Rights Act 1998)."
"would result in checks being made with schools or education authorities and might require permission from other Government departments, and possibly changes in the law to allow the SLC to access such information."
LORD SUMPTION AND LORD REED: (dissenting)
The English legislative framework
Article 14 of the Human Rights Convention
"The nature of the status upon which differential treatment is based weighs heavily in determining the scope of the margin of appreciation to be accorded to Contracting States. ... Immigration status is not an inherent or immutable personal characteristic such as sex or race, but is subject to an element of choice. ... While differential treatment based on this ground must still be objectively and reasonably justified, the justification required will not be as weighty as in the case of a distinction based, for example, on nationality. Furthermore, given that the subject matter of this case the provision of housing to those in need is predominantly socio-economic in nature, the margin of appreciation accorded to the Government will be relatively wide (see the Grand Chamber judgment in Stec v United Kingdom (2006) 43 EHRR 47, para 52)." (para 47)
" a wide margin is usually allowed to the state under the Convention when it comes to general measures of economic or social strategy. Because of their direct knowledge of their society and its needs, the national authorities are in principle better placed than the international judge to appreciate what is in the public interest on social or economic grounds, and the court will generally respect the legislature's policy choice unless it is 'manifestly' without reasonable foundation."
"the fact that there are grounds for criticising, or disagreeing with, these views does not mean that they must be rejected. Equally, the fact that the line may have been drawn imperfectly does not mean that the policy cannot be justified. Of course, there will come a point where the justification for a policy is so weak, or the line has been drawn in such an arbitrary position, that, even with the broad margin of appreciation accorded to the state, the court will conclude that the policy is unjustifiable."
The test was reviewed and reaffirmed by this court in Humphreys v Revenue and Customs Comrs  1 WLR 1545, at paras 15-21 (Baroness Hale). It has recently been applied by this court in R (SG and others) v Secretary of State for Work and Pensions (Child Poverty Action Group intervening)  1 WLR 1449, at paras 11, 69 (Lord Reed).
"a state may have legitimate reasons for curtailing the use of resource-hungry public services such as welfare programmes, public benefits and health care by short-term and illegal immigrants, who, as a rule, do not contribute to their funding."
It went on to point out that this principle could not be applied to education without qualifications, partly because education was specifically protected by article 2 of the First Protocol and partly because of its fundamental cultural significance (para 55). However, the force of these considerations was not the same at every level. The court observed, at para 56:
"at the university level, which to this day remains optional for many people, higher fees for aliens - and indeed fees in general - seem to be commonplace and can, in the present circumstances, be considered fully justified. The opposite goes for primary schooling, which provides basic literacy and numeracy - as well as integration into and first experiences of society - and is compulsory in most countries."
Accordingly, the margin of appreciation increased with the level of education. That approach was endorsed by the Grand Chamber in Catan v Moldova and Russia (2013) 57 EHRR 4, para 140. It is clear from the decision in Ponomaryov that the present case would have been most unlikely to succeed in Strasbourg. That conclusion is fortified by the decision in Bah v United Kingdom, where the court cited Ponomaryov in support of its conclusion that immigration status was a justifiable basis for differential treatment in the allocation of social housing.
Do the eligibility criteria have a legitimate objective?
"permissible for a member state to ensure that the grant of assistance to cover the maintenance costs of students from other member states does not become an unreasonable burden which could have consequences for the overall level of assistance which may be granted by that state. In the case of assistance covering the maintenance costs of students, it is thus legitimate for a member state to grant such assistance only to students who have demonstrated a certain degree of integration into the society of that state."
The court accepted that this justified the residence test: para 60. It also accepted (para 61) that the settlement test
"could admittedly, like the requirement of three years' residence referred to in the preceding paragraph, correspond to the legitimate aim of ensuring that an applicant for assistance has demonstrated a certain degree of integration into the society of that state."
The only reason why the settlement test was rejected was that applicants were unable to satisfy the residence test if at any time in the three year period the applicant had been here wholly or mainly for the purpose of receiving full-time education: see Schedule 1, paragraph 2(1)(d). The effect of this requirement, as the court pointed out (para 18), was that "a national of another member state cannot, in his capacity as a student, obtain the status of being settled in the United Kingdom". Bidar was distinguished on this ground in Fφrster v Hoofddirectie van de Informatie Beheer Groep (Case C-158/07)  1 CMLR 32. The imposition under Dutch law of a requirement of five years' prior residence in the Netherlands was held to be justified because the qualification was attainable by someone who had come to the Netherlands to study.
Proportionality and "bright-line rules"
" as with all complaints of alleged discrimination in a welfare or pensions system, it is concerned with the compatibility with article 14 of the system, not with the individual facts or circumstances of the particular applicants or of others who are or might be affected by the legislation. Much is made in the applicants' submissions and in those of the third-party intervener of the extreme financial hardship which may result from the policy However, the court is not in a position to make an assessment of the effects, if any, on the many thousands in the same position as the applicants and nor should it try to do so. Any welfare system, to be workable, may have to use broad categorisations to distinguish between different groups in need the court's role is to determine the question of principle, namely whether the legislation as such unlawfully discriminates between persons who are in an analogous situation."
This important statement of principle has since been applied by the European Court of Human Rights to an allegation of discrimination in the distribution of other welfare benefits such as social housing: Bah v United Kingdom at para 49. And by this court to an allegation of discrimination in the formulation of rules governing the benefit cap: R (SG and others) v Secretary of State for Work and Pensions (Child Poverty Action Group intervening)  1 WLR 1449, at para 15 (Lord Reed).
"Obviously a member state must for reasons of legal certainty and transparency lay down formal criteria for determining eligibility for maintenance assistance and to ensure that such assistance is provided to persons proving to have a genuine connection with the national educational system and national society. In that respect, and as the court recognised in Collins, a residence requirement must, in principle, be accepted as being an appropriate way to establish that connection."
"The central question as regards such measures is not, as the applicant suggested, whether less restrictive rules should have been adopted or, indeed, whether the state could prove that, without the prohibition, the legitimate aim would not be achieved. Rather, the core issue is whether, in adopting the general measure and striking the balance it did, the legislature acted within the margin of appreciation afforded to it."
"Mr Gill emphasised that the twenty-fifth birthday was a very arbitrary line. There could be no relevant difference between a person the day before and the day after his or her birthday. That is true, but a line must be drawn somewhere. All that is necessary is that it should reflect a difference between the substantial majority of the people on either side of the line. If one wants to analyse the question pedantically, a person one day under 25 is in an analogous, indeed virtually identical, situation to a person aged 25 but there is an objective justification for such discrimination, namely the need for legal certainty and a workable rule."