Tigere, R (On the Application Of) v Secretary of State for Business, Innovation & Skills -And- Student Loans Company Ltd

This claim concerns a challenge to the exclusion of the Claimant from eligibility for a student loan.

The Claimant is a Zambian national who having been born on the 29^th August 1985, is now 18 years old. She was brought into the United Kingdom by her parents when she was 6 years old, legally entering as a dependent of her father on his student visa. She has lived in the United Kingdom with her mother ever since, in effect for the majority of her life. Her entire education has been through the English system. The Claimant’s father left the United Kingdom in early 2003 and has played no active part in her upbringing. Those bald facts indicate a challenging start to life but they have been overcome. The Claimant has worked extremely hard and been very successful at school.

In her senior school Burnhome Community College she was Head Girl and obtained 7 GCSE’s and 4 A-levels, (A) business information and communications; (A star) technology; and (C) media. She is not only hard working, she is plainly ambitious and has great plans for her future. I have no doubt that these have been encouraged and re-enforced by her mother who has been present at court with her during the course of this hearing.

In pursuance of her goals the Claimant applied in January 2013 through the central UCAS application process to read for a degree in International Business Management. Her applications were predictably well received and offers came in from the universities of her choice and in particular her first choice Northumbria University. The fees for this course were broadly representative of equivalent courses at other institutions.

The Claimant and her mother had been granted temporary admission under Schedule 2, Paragraph 21 of the Immigration Act 1971 on the 6^th September 2010. They were granted 3 years discretionary leave to remain (‘DLR’) on the 30^th January 2012. According to the present published policy of the Home Office the Claimant will have the option to apply for a further 3 year period of DLR in 2015 and in consequence of that the option to apply for indefinite leave to remain (‘ILR’) also known as ‘settlement’, in 2018.

Though the Claimant brought into the country legally by her parents the Claimant’s mother had overstayed her leave following the father’s return to Zambia and did not regularise her daughter’s immigration status until September 2010. Inevitably therefore the Claimant’s current immigration status is entirely the consequence of her mother’s own decision to over stay and subsequent delay in regularising the Claimant’s position.

Along with her school cohort the Claimant applied in April 2013 for a student loan. The position as I understand it is that all higher education placements in the United Kingdom make offers to candidates conditional upon payment of fees on an ‘up front’ basis and in instalments. The system operates on the premise that eligible students have access to state guaranteed loans to meet these fees which they repay later during the course of their working lives. They are plainly far more advantageous to the student than any commercial comparator. I say, at once, that I am perfectly satisfied that outside the loan scheme there is no other realistic option for this Claimant. In her statement in these proceedings dated 23^rd June 2013 she states

“I have no money myself to pay the amount required for fees. The only other person who offers me financial support is my mother. My mother is a support worker and earns between £100 and £220 per week. The amount she earns depends upon how many hours she is able to work that week. With her income, she supports not just me but also her sister and her two children who also live with us and are not employed. My mother is therefore supporting five people on a very small wage. She is not in a position to provide me with money for university fees.

I have been asked if it would be possible for my mother to take out a loan from a bank. I do not think my mother earns enough money to be able to get and make payments on a loan. Nor do I want to put her under pressure to do so. ”

The Claimant only became aware there was any difficulty with her eligibility for a student loan after making an online application towards the end of April 2013. In her statement she described how she visited the Student Finance England website and responded to the tick box formula. Confronting the question directly as to when she first became aware of a problem with her being able to secure a student loan she states as follows

“It was after the time when I did this online application. When there were lots of questions about my immigration status in the application and the requests for further information, my mother and I became confused about what the problem was and so contacted a friend of ours who worked with migrants and asylum seekers in the York area. She did some research and told us she thought I might not get a loan because of my immigration status. She then arranged for us to be put in touch with my current solicitor. I met with him for the first time on 20 May 2013 and he confirmed that it was likely I would be refused a loan due to my immigration status. ”

Although judicial review is overwhelmingly concerned with the law and not the merits of the particular case it is impossible not to note that this Claimant’s work ethic courses through her veins. Notwithstanding the considerable obstacles put in her path by the adverse decision on eligibility for the student loan scheme she and her mother were determined that she should attend university if that was at all possible. The Claimant therefore applied through the UCAS ‘clearing process’ for places at local universities which she could attend whilst living at home. She accepted a place to study International Business Management at the University of Hull and was able to pay the first tuition fee instalment. That was achieved through a combination of her mother maximising her own working hours and taking a better paid job albeit far from the family home along with the Claimant obtaining a student overdraft facility. That arrangement foundered as it became clear the Claimant could not manage the ongoing costs associated with travelling to the University for lectures four times a week. With reluctance she was compelled to withdraw from the course, in fact potentially forfeiting the tuition fee payment and leaving her overdrawn on her student account. She is presently working part time at a supermarket.

For convenience I have cross fertilised the chronologies as prepared by both legal teams. What is perhaps most important to note is the impact on this case of the decision Burnett J in R (Kebede & another) v Secretary State of Business, Innovation and Skills [2013] EWHC 2396 (Admin). Its immediate consequence has been unavoidably to cause delay in the hearing of this claim. It is doubtless the case that had Kebede proceeded to appeal, as contemplated, some of the key issues that fall to be considered by me would have by now been authoritatively resolved. The decision to delay the hearing pending the outcome of that appeal was inevitable. I note too that Burnett J refused an application for a joint hearing (with this case) in part due to his view that the facts and issues in the respective claims are not identical. However, he plainly felt that there was sufficient overlap between the Kebede decision and this case to express the view in his order 31^st July 2013 that

“in the light of my conclusion in Kebede (if they survive the scrutiny of the Court of Appeal) this claim (Tigere) is unarguable.”

I am told in submission by Ms Mountfield QC and Mr Desai on behalf of the Claimant that Burnett J having dismissed the JR application in Kebede granted permission to the Court of Appeal both on the grounds of ‘a real prospect of success’ and because of ‘wider public importance of issues’. Against this back drop an appeal from my decision seems inevitable as both Counsel have indicated. Conscious of the delay that has already occurred and the impact on the Claimant from the delay in terms of her ambition to go to University in the next academic term I have liaised with the Court of Appeal office and fortunately they have been able to secure a hearing of this appeal by the 28th July. The case plainly raises an important point. Like Mr Justice Burnett almost exactly 12 months earlier therefore I find myself constrained to deliver this judgment expeditiously.

The background is as follows:

III. Summary of procedural history

The provision in focus in this case is Section 22 of The Teaching and Higher Education Act 1998 (‘The 1998 Act’). That provides regulations shall make provision authorising or requiring the Defendant to make grants or loans to eligible students in connection with higher and further education courses. These regulations are creatures of statutory instrument and are subject to approval under a negative resolution pursuant to Section 42 (1) and (3) of the 1998 Act. It seems to be common ground that the regulations are in practice changed with some frequency. The Secretary of State delegates the function of administering student loans to the Student Loans Company Ltd in respect of which and pursuant to Section 23 (4) the department (BIS) is a majority share holder. There are three sets of regulations each regularly amended: The Education (Student Support) Regulations 2011 (the 2011 regulations); The Education Fees (Fees and Awards) Regulations 2007 and The Student Fees (Qualifying Courses and Persons) (England) Regulations 2007.

The ‘2011 Regulations’ make provision for the payments of grants or loans to eligible students in connection with attending designated higher education courses. The Fees and Awards Regulations identify which students should be charged the overseas rate of fees and those entitled to home fees status. The Qualifying Courses and Person Regulations determine which categories of student may benefit from regulated fees.

I have found the relevant statutory framework difficult to distil and so must burden this judgment with the details of the Regulations, largely extracted from the Defendant’s Detailed Grounds (agreed to be an accurate summary by the Claimant).

The current regulations are the Education (Student Support) Regulations SI 2011/1986 (“the 2011 Regulations”). Subject to a presently immaterial exception (reg.2(3), (4)), “eligible student” is defined in reg.4. So far as presently relevant, an eligible student is a person whom the Secretary of State has determined as falling within one of the categories set out in Part 2 of Schedule 1: reg.4(2).

The other categories are the following:

In the case of R (Arogundade) v Secretary State for Business,Innovation and Skills CO/8339/2010 (Arogundade No1) an applicant who did have limited leave to remain, challenged the rationality of the decision to refuse her a student loan under the predecessor Education (Student Support) Regulations 2009, which contained a category of persons with limited leave to remain, on the grounds that the applicant had not received limited leave as a result of having made a failed asylum claim. It was contended that it was irrational to hold the absence of a failed claim against her when she had limited leave. The Defendants settled the proceedings and so for a temporary period between 20^th August 2010 and 18^th January 2011 certain students with DLR who were in appeal or who applied during that time frame were considered for support. This was dealt with as a matter of interpretation rather than a change to the regulations. The decision was taken on 4^th October 2010 to restrict student support and home fee status to holders of (temporary) leave to remain to those who are in need of international protection i.e. to those awarded either Refugee status or Humanitarian Protection, but not to other students holding DLR as result of a failed asylum application. Following that resolution certain applicants with limited leave to remain and who otherwise met the relevant eligibility requirements were treated as ‘eligible’ for the student loan scheme. However, this category was subsequently abolished by regulation 7 of the Education (Student Fees and Award Support) (amendment) regulations 2011 which with effect from the 9^th February 2011 amended the criteria in the 2009 regulations such that a grant of temporary leave will no longer suffice and a grant of settlement (i.e. indefinite leave to remain (ILR)) is now required to establish eligibility under the basic category (see above). That has been replicated in the subsequently enacted 2011 regulations.

Thus, as Ms Mountfield puts it, the result is that from the 9^th February 2011 unless the new eligibility criteria are read down or dis-applied under the HRA, persons with limited leave to remain (who do not fall into the special categories associated with the UK’s international obligations or on grounds of humanitarian protection) will be excluded from entitlement to a student loan until such times as they are eligible to apply for and are granted settlement. There is no exception within the provisions regardless of: a Claimant’s length of residence and/or education in this country; the age at which they came here, which it is contended may be relevant to their culpability for breaches of immigration law; the strength of their connection to the UK; the likelihood of their remaining indefinitely and regardless of their access to alternative sources of funding. When the Claimant may become eligible therefore rather depends on when she can obtain ILR, whether under the immigration rules or outside the rules under the DL Policy. The Claimant contends that the decision of Mr Justice Burnett in Kebede was wrongly decided and in any event distinguishable on its facts given that the Claimant there had alternative sources of funding. They identify four grounds for review:-

As I have to some extent foreshadowed, analysis of the grounds of claim benefits, it seems to me, from the discipline of identifying those issues on which there is agreement, if only to tease out where the real areas of dispute lie in this case. There is much more common ground than might appear from either the statements filed or the written arguments. Thus:

It seems to me that this question ought to be receptive to a clear answer now even if it is one that is vulnerable to future reconsideration. I asked if Junior Counsel for both parties could send a short agreed document answering the question. In the end it was not possible to put an agreed document before me and both submitted separate documents.

The UKBA guidance document “Discretionary Leave” (Footnote: ¹) (taken from the UKBA website, which gives a publication date of 14 May 2014) section 10 “Transitional Arrangements” includes the following:

“Individuals granted DL on a date prior to and including 8 July 2012 may apply to extend that leave when their period of DL expires….

Applicants granted Discretionary Leave before 9 July 2012

Those who, before 9 July 2012, have been granted leave under the DL policy in force at the time will normally continue to be dealt with under that policy through to settlement if they qualify for it (normally after accruing 6 years continuous DL). Further leave applications from those granted up to 3 years DL before 9 July 2012 are subject to an active review.”

Assuming that nothing happened to cause the UKBA not to continue to grant the claimant further DL, she would on 30 January 2018 have accumulated 6 years continuous DL.

However, the UKBA guidance document further provides at section 1.1 that:

“[DL is granted outside the Immigration Rules. It must not be granted where a person qualifies for asylum, [humanitarian protection], or where there is another category within the Immigration Rules under which they qualify.”

and

“From 9 July 2012 DL must not be granted for Article 8 family or private life reasons.”

It follows that, if the Claimant qualifies for a grant of leave to remain on the grounds of her private life (or otherwise) under the immigration rules, it may be that the Secretary of State for the Home Department would take the view that she would not be entitled to a further grant of DL under the transitional arrangements. The Court’s attention is drawn to the availability of a grant of limited leave to remain for a period of 30 months pursuant to para. 276ADE(1)(v) of the Immigration Rules on grounds of private life, (Footnote: ²) which (subject to certain immaterial exceptions) applies to a person aged 18-24 who has:

“…spent at least half of his life living continuously in the UK (discounting any period of imprisonment).”

Were the Secretary of State for the Home Department to take the view that a further grant of DL should not be made outside of the immigration rules because leave to remain is available under the immigration rules, the Claimant would not qualify for a grant of settlement under the current immigration rules until 2022. (Footnote: ³)

“The Defendant respectfully re-iterates his submissions:

The UKBA guidance document “Discretionary Leave” (Footnote: ⁴) (taken from the UKBA website, which gives a publication date of 14 May 2014) section 10 “Transitional Arrangements” includes the following.

“Applicants granted Discretionary Leave before 9 July 2012

Those who, before 9 July 2012, have been granted leave under the DL policy in force at the time will normally continue to be dealt with under that policy through to settlement if they qualify for it (normally after accruing 6 years continuous DL). Further leave applications from those granted up to 3 years DL before 9 July 2012 are subject to an active review.”

Assuming that nothing happened to cause the UKBA not to continue to grant the claimant further DL, she would on 30 January 2018 have accumulated 6 years continuous DL.

The Claimant could not qualify for settlement under the current immigration rules (as opposed to the DL policy, which operates outside the immigration rules) before 2022.”

Two facts:

Both Counsel have looked extensively at the evolution of education law in the England and Wales, particularly higher education and those regulations relating to Awards and Support. The Defendant contends that to understand the claim in this case it is essential to look at the evolution of education law and the student funding regulations. The Defendant particularly emphasises that as early as 1944 in the Education Act of that year, Section 1 (1) emphasised that it shall be the duty of the Minister of Education

It is the 1998 Regulations which set out in a Schedule the categories of ‘eligible’ student. An Explanatory Note, but not the regulations themselves, identifies persons ‘given exceptional leave to remain in the United Kingdom as within the categories of eligible student’. In April 2003 the Home Office made a change in its categorisation of leave, replacing ‘exceptional leave’ with ‘humanitarian protection’ and ‘discretionary leave’. On the 30^th August 2005 the Home Office made a yet further change to include ‘refugees’ who were thereafter granted leave for 5 years, in contrast to what had previously been ‘immediate indefinite leave’.

The Education (Student Support) Regulations SI 2009/1555 reg 5 (2) and Schedule 1 set out the categories of ‘eligible students’. Paragraph 5 of Schedule 1 concerns people with leave to enter or remain who also have three years ordinary residence. Persons with leave to ‘enter or remain’ are defined under those regulations in the same terms as paragraph 3 of schedule 1 to the 1998 Regulations, i.e. the failed asylum seekers category. The current regulations namely the 2011 Regulations consolidate the amendments made to the 2009 Regulations.

That very truncated traverse of the relevant provisions does not begin to do justice to the efforts and industry of both counsel but it does I hope at least identify the salient features of the background to the 2011 Regulations. It is of course in respect of those regulations that the Claimant contends that as from the 9^th February 2011 persons with limited leave to remain who do not fall within the special categories associated with the UK’s international obligations or a grant of humanitarian protection (which all agree does not arise here) will be excluded without exception from an entitlement to a student loan until such time as they are eligible to apply for and granted settlement. The Claimant’s first ground of review is that this ‘blanket exclusion’ from eligibility is such a disproportionate interference with the Claimant’s effective access to education under Article 2, Protocol 1 that it cannot be regarded as ‘justifiable’ or ‘proportionate’ In particular it is pointed out that no regard is had to the strength of the Claimant’s connection with the UK and her real prospects of remaining here indefinitely. It is emphasised that Section 6 of HRA requires public authorities to act compatibly with enshrined Convention rights.

Additionally to the evidence presented on behalf of Coram, to which I have already referred, the Claimant draws upon the analysis of the harmful nature of discrimination in the sphere of access to education articulated by Arden LJ in R (Elias) v Secretary of State for the Home Department [2006] EWCA Civ 1293, [2006] 1 WLR 3214. At para 269

269 “Anti-discrimination legislation has implications for the administration of justice. When adjudicating, in accordance with the law, on cases involving alleged discrimination, judges have a role to play in the process of transforming society from one in which inappropriate distinctions have in some cases been drawn between individuals based purely on their race, gender or other grounds to a society in which, through the integration of laws prohibiting discrimination in specified ways, each individual is valued and treated equally.”

270 “The adverse effects of unlawful discrimination are manifold. Discrimination can have a severe negative psychological effect on the individual involved, as well as a loss of dignity and self-esteem, and induce a sense of alienation. This sense of alienation can lead to a mistrust of institutions, such as the police or the justice system. This mistrust is detrimental to social cohesion. The co-operation of minority groups is particularly important in the fight against crime and terrorism (see for example per Lord Hope in R (Gillan) v Commissioner of Police for the Metropolis [2006] 2 WLR 537 at [57]).”

57 “It should be noted, of course, that the best safeguard against the abuse of the power in practice is likely to be found in the training, supervision and discipline of the constables who are to be entrusted with its exercise. Public confidence in the police and good relations with those who belong to the ethnic minorities are of the highest importance when extraordinary powers of the kind that are under scrutiny in this case are being exercised. The law will provide remedies if the power to stop and search is improperly exercised. But these are remedies of last resort. Prevention of any abuse of the power in the first place, and a tighter control over its use from the top, must be the first priority”.

271 “Unlawful discrimination has economic consequences too. Discrimination in educational and other opportunities can lead to a reduction in the pool of available candidates for further education and employment. This hinders social and economic progress since it means that society loses the benefits of the talents of these individuals and the different perspectives that they can bring to the solution of the problems facing business or society. Society benefits when each individual realises his or her potential and thus this process should not be impeded by unlawful discrimination.”

Here the prospects of a University education are of course not shut out for all time for this Claimant. The Higher Education System in the United Kingdom has now for decades flung open its doors to those wishing to avail themselves of educational opportunities later in life be it for reasons of professional advancement or personal fulfilment (or both). Education as life long learning is no longer an illusory aspiration, for many it has become a rewarding reality. However, this is conceptionally different from effectively denying a young person who is keen and eager to learn, the opportunity to do so at a stage in her academic maturity when she is ripe to absorb all that higher education offers. As the Claimant points out the State will provide full medical care for her if required and employment benefits if she could not find work. What, she asks can be the justification or indeed the rationality in denying her a student loan which she is (i) required to pay back and (ii) through the education received, likely to strengthen her wider social contribution.

Moreover what is contemplated here is in effect an interruption of C’s education which has so far been afforded to her by the state. It is an offer which she has seized with hard work, commitment and considerable success. I am also confident that in her school as a young, black, Head Girl from a modest, perhaps underprivileged background she has inspired others from all types of backgrounds and differing ethnicities. The deprivation of the opportunity to fulfil her promise not only has an impact on her own dignity and self esteem it has, as Arden LJ identified, a wider detrimental impact on social cohesion, for it will to my mind, strike her peers as arbitrary and unfair that this young person’s talents, personal experiences and perspectives can not been harnessed to best effect. It undermines their sense of social justice too. As Elias LJ observed in R (Hurley and Moore) v Secretary of State for BIS 2012 EWHC 201 (Admin), [2012] ELR 297.

“It is of crucial importance that the Convention is interpreted and applied in a manner that renders it rights practical and effective, not theoretical and illusory”.

As Baroness Hale put it in Ghaidan v Godin – Mendoza [2004] 2 AC 557

Para 132 “Such a guarantee of equal treatment is also essential to democracy. Democracy is founded on the principle that each individual has equal value. Treating some as automatically having less value than others not only causes pain and distress to that person but also violates his or her dignity as a human being. The essence of the Convention, as has often been said, is respect for human dignity and human freedom: see Pretty v United Kingdom(2002) 35 EHRR 1, 37, para 65. Second, such treatment is damaging to society as a whole. Wrongly to assume that some people have talent and others do not is a huge waste of human resources. It also damages social cohesion, creating not only an under-class, but an under-class with a rational grievance. Third, it is the reverse of the rational behaviour we now expect of government and the state. Power must not be exercised arbitrarily. If distinctions are to be drawn, particularly upon a group basis, it is an important discipline to look for a rational basis for those distinctions. Finally, it is a purpose of all human rights instruments to secure the protection of the essential rights of members of minority groups, even when they are unpopular with the majority. Democracy values everyone equally even if the majority does not. ”

It is important to reflect that the category of those ‘entitled’ to student finance was not always confined to persons with settled status or ILR, indeed it is the case as summarised in para 22 above that prior to the 1997 Regulations there was no category of eligibility requiring settlement. In R (Arogundade) v Secretary of State for BIS CO/8339/2010 (Arogundade (No1) the Defendant settled proceedings and following the Consent Order all applicants with limited leave to remain and who met the other eligibility requirements were treated as eligible for student loans. This said Mr Kovats was merely an interregnum effectively between the 26^th August 2010 and 18^th January 2011 whilst the Defendant considered how to respond to the Arogundade (No 1) claim. He emphasises the response was limited to interpreting extant regulations more flexibly not of redrafting them. ‘Persons with leave to remain’ has, he submits, never been a distinct category of eligible students if they have not claimed asylum. His core point here to which he returns in response to ground 4 of the claim is that a temporary admission should not be conflated with immigration ‘status’ but regarded, in effect, as a stage in an ongoing administrative process.

Though they are separate points grounds 1 and 2 inevitably overlap, raising similar issues. Mr Kovats and Mr Sachdeva sensibly address them together at paragraph 44 of their Detailed Responses and I propose to follow their template. Education is, as the Claimant rightly accepts, a matter of economic and social policy and as such Government is afforded a wide discretionary judgment. The premises on which that judgment operates have been looked at above. The Defendant formulates the balance in these terms

‘The question for the court is, to paraphrase Burnett J at [37] in Kebede, whether the decision not to include persons within discretional leave to remain within the categories of eligible students is manifestly without reasonable foundation?’

Burnett J identified the issues in this way at para 36 and 37 of his judgment in Kebede.

36.

“Humphreys v. Revenue and Customs Commissioners [2012] 1 WLR 1545 was a case concerning article 14 read with A1P1 (peaceful enjoyment of possessions), an area where the Strasbourg Court has generally accorded a wide margin of appreciation. Between paras 15 to 20 of her judgment, Lady Hale discussed the test for justification in that context: manifestly without reasonable foundation. The same test had been applied by the Supreme Court in R (RJM) v. Secretary of State for Work and Pensions [2009] AC 311 in the context of income support to rough sleepers. Lord Neuberger applied that test and asked himself whether the view taken by the executive was 'unreasonable'. And added:”

"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 fashion, that, even with the broad margin of appreciation accorded to the state, the court will conclude that the policy is unjustifiable."

37.

“By analogy with these cases, and in the light of the approach indicated by the Strasbourg Court in Ponomaryov to questions of funding for tertiary education, the question on justification is whether the measure is manifestly without reasonable foundation.”

The arguments before me have evolved since Kebede. Given it is now acknowledged that ‘eligibility’ falls within the ambit of protocol 1 article 2, submissions have been able to focus entirely on whether a regime which excludes persons with discretionary leave is justifiable or whether to exempt an entire category of individual without any regard to their individual circumstances can be said to have a reasonable foundation.

The Defendant contends that the Article 14 grounds add nothing to the A2P1 grounds. The Claimant contends that whilst the question of justification is bound up with the question of discrimination such that it is indeed convenient to address justification under grounds 1 and 2 together, it is an overstatement to say that the Article 14 grounds add nothing.

Ms Mountfield contends that the discriminatory nature of the eligibility criteria is a fundamental aspect of the present case which the Defendant must justify as such. She submits whilst the analytical framework is similar (which to my mind is undoubtedly true) greater justification is required for a discriminatory limitation upon the right of access to education under A2P1 on grounds of ‘status’ rather than a universal limitation on what is provided. However, I am inclined to agree with the Defendant that in the particular circumstances of this case Ground 2 adds nothing to Ground 1. For my part though I am not sure that the concept of ‘manifestly’ adds anything to ‘reasonable foundation’ in this context.

It seems to me that whether considering A2P1 or Article 14, very careful scrutiny of the objectives is required in order in evaluate whether interference with those rights is justified as proportionate to a legitimate aim. An unstructured general ‘Wednesbury’ review is not satisfactory for the reason Lady Hale alludes to in Humphreys v Revenue and Custom Commissioners [2012] UKSC 18 [2012] 1 WLR 1545, at para’s 22 and 23.

22 “But the fact that the test is less stringent than the "weighty reasons" normally required to justify sex discrimination does not mean that the justifications put forward for the rule should escape careful scrutiny. On analysis, it may indeed lack a reasonable basis. This case is different from Stec and Runkee in two important respects. First, they were concerned with non-means-tested benefits; CTC is of course means-tested, though not at subsistence level, and the other benefits to which the appellant was entitled were at subsistence level. And secondly, the justification advanced in each case was the historic need to cater for the disadvantage suffered by women in the workplace, in the first place by allowing them to retire with a state pension earlier than men, and in the second place by giving them a pension to compensate for the loss of their deceased husbands' income on which they had usually been dependent. The margin lay in deciding when and how to remove the discrimination. We are not here concerned with the timing of transitional arrangements, but with a considered policy choice which could last indefinitely. ”

23 The appellant's case is simple (and skilfully deployed). He is responsible for looking after his children for three days a week. He is dependent upon subsistence level benefits: his incapacity benefit is deducted from his income support and his disability living allowance is to meet the particular needs arising out of his disability. He therefore has nothing with which to meet the needs of his children while they are with him. The mother could agree to share the CTC and the child benefit with him, but she does not have to do so. HMRC can give one of them the child benefit for one child and the other the benefit for the other child, but they cannot do this with the CTC. The court which made the order in the family proceedings has no power to order the mother to share the CTC with the father: the family courts' powers to make periodical payments orders for the benefit of children were removed with the introduction of the child support scheme: see Child Support Act 1991, s 8(3). Splitting used to be possible under the fore-runner to income support and under the child tax allowance scheme, so it can be done. And in fact it is now possible to share Child Tax Benefit under the comparable scheme in Canada (in Australia, shared carers can each claim the full benefit). Comparisons with other European states are not helpful, because of their different approaches to the allocation of parental responsibility after separation and of their very different tax and social security systems.”

The Defendant has disclosed in these proceedings two Equality Impact Assessments:

It seems reasonable to my mind to extrapolate from this that there has been no real consideration of the detrimental impact of a potentially significant period of delay in accessing higher education for those who have no alternative source of funding. The Assessment concludes by the assertion that:

“there is no evidence that this policy change produces unlawful discrimination”

The Defendant simply disputes that he is under any duty to incorporate criteria of eligibility for those with leave to remain. This is expressed in uncompromising terms at para 51 of the Detailed Grounds

“The Defendant was under no duty to have such a category. It would be unprincipled. It would not further the statutory purpose of promoting the education of the people of England and Wales as that has evolved over the years in the manner prescribed in the various regulations’”

Mr Kovats relies on the observation of Burnett J in Kebede at Paragraph 46. This, he says “is an area where the application of clear parameters for eligibility for a loan makes sense” Mr Kovats does not accept the Claimant’s submission that categories of eligibility can be identified with sufficient coherence to establish clear and workable parameters. He asserts that “an open ended category is unworkable.” What he asks, would be the relevant features:.. finance?; prospects of obtaining settlement?. This it is said prejudges the Home Secretary’s decision under the Immigration Act, which the Defendant neither can nor should do.

In my judgement there is no real engagement by the Defendant in a justification of the rationality or proportionality of this ‘catch all’ measure or ‘blanket exclusion’ as it has been termed. Assertion of the need for clarity and simplicity in funding provision is of course superficially attractive but it is ultimately platitudinous, as most funding schemes have a degree of complexity which does not compromise their ultimate workability. The second argument that the Defendant raises, which I think can accurately be characterised as ‘the administrative un-workability of any eligibility criteria’, is also unsupported by any cogent evidence. The Claimant’s degree of integration into UK life and the extent to which she or he has already been educated in the UK seem to me to be the clear framework criteria. That said, it is for the Defendant to justify the un-workability of any scheme and not for the Claimant to ghost draft it. I have worked on the premise that in evaluating justification under Article 14 or A2P1 the correct test is ‘proportionality’ set out with pellucid clarity by Lord Sumption in Bank Mellat v HM Treasury (No.2) [2013] UKSC 39 [2013] 2WLR 179.

“The requirements of rationality and proportionality, as applied to decisions engaging the human rights of applicants, inevitably overlap. The classic formulation of the test is to be found in the advice of the Privy Council, delivered by Lord Clyde, in De Freitas v Permanent Secretary of Ministry of Agriculture, Fisheries, Lands and Housing [1999] 1 AC 69 at 80. But this decision, although it was a milestone in the development of the law, is now more important for the way in which it has been adapted and applied in the subsequent case-law, notably R (Daly) v Secretary of State for the Home Department [2001] 2 AC 532 (in particular the speech of Lord Steyn), R v Shayler [2003] 1 AC 247 at paras 57-59 (Lord Hope of Craighead), Huang v Secretary of State for the Home Department [2007] 2 AC 167 at para 19 (Lord Bingham of Cornhill) and R (Quila) v Secretary of State for the Home Department [2012] 1 AC 621 at para 45. Their effect can be sufficiently summarised for present purposes by saying that the question depends on an exacting analysis of the factual case advanced in defence of the measure, in order to determine (i) whether its objective is sufficiently important to justify the limitation of a fundamental right; (ii) whether it is rationally connected to the objective; (iii) whether a less intrusive measure could have been used; and (iv) whether, having regard to these matters and to the severity of the consequences, a fair balance has been struck between the rights of the individual and the interests of the community. These four requirements are logically separate, but in practice they inevitably overlap because the same facts are likely to be relevant to more than one of them. Before us, the only issue about them concerned (iii), since it was suggested that a measure would be disproportionate if any more limited measure was capable of achieving the objective. For my part, I agree with the view expressed in this case by Maurice Kay LJ that this debate is sterile in the normal case where the effectiveness of the measure and the degree of interference are not absolute values but questions of degree, inversely related to each other. The question is whether a less intrusive measure could have been used without unacceptably compromising the objective. Lord Reed, whose judgment I have had the advantage of seeing in draft, takes a different view on the application of the test, but there is nothing in his formulation of the concept of proportionality (see his paras 68-76) which I would disagree with.”

I note too that the mere saving of cost cannot justify discrimination. In the part-time judges’ pension case MOJ v O’Brien [2013] UKSC 6, [2013] 1 WLR 522 the Supreme Court said:

“Hence the European cases clearly establish that a member state may decide for itself how much it will spend upon its benefits system, or presumably upon its justice system, or indeed upon any area of social policy. But within that system, the choices it makes must be consistent with the principles of equal treatment and non-discrimination. A discriminatory rule or practice can only be justified by reference to a legitimate aim other than the simple saving of cost. No doubt it was because the Court of Justice foresaw that the ministry would seek to rely upon considerations of cost when the case returned to the national courts that it took care to reiterate that budgetary considerations cannot justify discrimination” (at paragraph 69).”

In the light of my analysis above I do not consider it necessary to address Ground 3 nor has much time been spent on it by either party during the course of oral submissions.

In respect of Ground 4 Mr Kovats and Mr Sachdeva submitted a ‘Supplemental Note’ following the conclusion of the hearing. Ms Mountfield and Mr Desai are critical of that course, observing that the Defendant had been on notice of Ground 4 since 11^th July 2013 and that it did not merit much detailed analysis either in their Grounds of Resistance or in Submissions. Ms Mountfield met this procedural irregularity by supplying a ‘Detailed Response’ on behalf of the Claimant. The essence of Ground 4 is that the Claimant attacks the Secretary of State’s decision that she is not an eligible student, not only on the basis of the issues that I have already looked at in this judgment, but also on the grounds asserted against her that she does not meet the requirement of having 3 years ‘ordinary residence’. The first limb of this is that the Claimant contends that she is entitled to position herself within the ‘3 years ordinary residence criteria’ by including her period of temporary admission from the 6^th September 2010 to the 29^th January 2012 which she argues accounts to a period of ‘ordinary residence’. This argument, which is set out over 11 paragraphs in the skeleton argument, really depends on the assertion that ‘lawfulness’ does not in fact require a positive immigration status as contemplated by the Immigration Act 1971 but is in effect achieved by legitimising her presence in the United Kingdom pursuant to what is termed a ‘positive authorisation for presence in the UK’. Whilst it is attractively framed, to my mind, the argument fails because, as the Defendant has submitted, temporary admission cannot be equated with an immigration status, it is merely a holding position until ‘status’ is determined. It seems to follow inevitably that any category of unlawful residence cannot constitute ‘status’ for the purpose of Article 14. Further, as Mr Kovats observes even if this holding period prior to status being determined is regarded as a ‘status’ in and of itself, it is not logically analogous to persons whose residence is lawful, a distinction which the Strasbourg Court has acknowledged in Ponomaryov (supra). Accordingly, in my judgment, this falls outside the scope of Article 14 of the ECHR and the question of justification therefore does not arise.