In R (Tigere) v Secretary of State for Business, Innovation & Skills [2015] UKSC 57 the Supreme Court considered the issues of justification for interference with Convention rights and the use of "bright line" rules in public law when deciding that the “settlement” requirement for student loan applicants was incompatible with the European Convention on Human Rights, but left it open for the Secretary of State to devise a more carefully tailored criterion.

1. Key Points

  • The courts will treat a Secretary of State as primary-decision maker in instances involving the distribution of taxpayers' resources and will allow him a wide margin of discretion, particularly in circumstances where the decision maker has actively considered the rights of those who may be prejudiced by that decision. However, when enforcing rights which are afforded special protection, such as education, it is not necessarily only decisions made "manifestly without reasonable foundation" with which the court can intervene.
  • “Bright line” rules can be justified in certain contexts, however, the particular rule chosen should be rationally connected to legitimate aims and be a proportionate way of achieving those aims. A fair balance must be struck between the effect on the person whose rights have been infringed and the interests of the community.

2. Background

The Claimant appealed against the Court of Appeal decision that the Education (Student Support) Regulations 2011 (the Regulations) were not incompatible with her rights under Article 14, which ensures that Convention rights are secured without discrimination, read with her right to education under Article 2 of Protocol 1 (A2P1). The Regulations require that, in order to qualify for a student loan, applicants must be:

  1. lawfully and ordinarily resident in the UK for three years prior to the first day of the relevant academic year (Residence Criterion); and
  2. “settled” in the UK on that day, defined effectively as having indefinite leave to remain (Settlement Criterion).

The Claimant was a Zambian national who had lived in the UK since the age of six, first as a lawful dependent and subsequently as an over-stayer, who was then granted discretionary leave to remain.

The Claimant argued that both the Residence Criterion and the Settlement Criterion constituted unjustified and discriminatory restrictions on her right to education.

3. The Decision

The Supreme Court, by a majority of 3:2, reversed the Court of Appeal decision in part.

The court held that although A2P1 does not impose an obligation for a state to provide or fund tertiary education, any support offered must be done so on a Convention-compliant basis. As it was accepted by all parties that immigration status was an "other status" within the meaning of Article 14, and that therefore excluding persons without indefinite leave to remain is discriminatory, the Settlement Criterion was a prima facie breach of the Claimant's Convention rights, unless it could be shown that it was justifiable and proportionate to its objective.

The court applied the well-established test of justification and considered that although the Settlement Criterion had legitimate objectives in targeting resources at students who were properly part of the community and were likely to remain in England and contribute to the economy, in this instance the rule itself was not rationally connected to this legitimate objective. The Settlement Criterion was described as a "bright line" rule by the court; a term used for clearly defined rules, based on objective factors, which are aimed at the avoidance of any ambiguity but which leave little room for interpretation or assessment on an individual basis.

In considering the Settlement Criterion, the court considered it was not a sufficient defence for the Secretary of State that the rule adopted allowed the scheme to be quickly and easily administered, when there was no evidence that either the Secretary of State or Parliament had actively considered the rights of those persons such as the Claimant. Baroness Hale (with whom Lord Kerr agreed) commented that a distinction may be drawn between inclusionary and exclusionary "bright line" rules, with the latter requiring stronger justification. Given that considerable harm would be done to the Claimant, and arguably the community and wider economy, by the denial or delay of her university education, the Settlement Criterion did not represent a balance between the effect on those whose rights were engaged and the interests of the community. In other words, the administrative advantages of having the "bright line" rule could not in this instance outweigh the negative impact on the Claimant and society. Accordingly, application of the Settlement Criterion could not be justified in respect of the Claimant's case and the court upheld this part of the appeal.

In dismissing part of the appeal, the court held that the Residence Criterion was lawful and was compatible with the Claimant's Convention rights, on the basis it was reasonable to restrict benefits to those genuinely integrated into society.

Relief

The court did not quash the Settlement Criterion in its entirety nor elect to read down the Regulations to include a provision creating exceptions to the rule in case of breach of a person's Convention rights. The latter option was rejected by the court on the basis that this provision would give little guidance as to the application of the Regulations. Rather, a declaration was made that the Settlement Criterion was a breach of the Claimant's rights, leaving her entitled to a student loan and the Secretary of State open to devise an alternative criterion which would avoid breaching the Convention rights of other applicants. Lord Hughes, as part of the majority granting the declaration in favour of the Claimant, added that should the Secretary of State elect not to include discretion to allow exceptional cases within the revised rules, this would not result in any infringement of Convention rights.

4. Comment

Although many of the principles considered in the decision apply specifically in an education context, there are a number of points with wider significance.

The judgement makes clear that although "bright line" rules may be used by public law decision makers, care should be taken to ensure that they not only have legitimate aims but also that they are rationally connected to those aims and are proportionate measures to achieving them.

The court was respectful of the Secretary of State's discretion, choosing not to quash the rule in its entirety nor be prescriptive of any alternative rule. Rather, it limited its judgement to the specific case of the Claimant and only went so far as was necessary to ensure effective relief for the Claimant. This underlines the reluctance of the courts to involve themselves in wide ranging policy issues even where Convention rights are engaged such that a greater intensity of review is appropriate.