In a recent decision, the Supreme Court has ruled in favour of a student who challenged the eligibility criteria relevant to student loans provided by Student Finance England.
The case involved Beaurish Tigere, a national of Zambia, who came to the UK with her parents in 2001, at the age of six. Her father had a student visa and she and her mother came with him, lawfully, as his dependants. Ms Tigere’s father left the UK in 2003, but she and her mother stayed on after their visas had expired.
Although Ms Tigere entered the UK legally, her mother overstayed her leave to remain in the UK following the father’s return to Zambia, and did not regularise Ms Tigere’s immigration status until September 2010, when they were granted temporary admission to the UK. In January 2012, Ms Tigere and her mother were granted three years’ discretionary leave to remain in the UK and, with a further three year grant being made in April 2015, will have the option to apply for indefinite leave to remain in 2018.
Ms Tigere was educated in the UK (through reception, primary, secondary and sixth form studies) and has achieved academic success, resulting in the offer of a place by Northumbria University to read for a degree in International Business Management in the 2013-2014 academic year.
Ms Tigere required a student loan in order to take up her place at university and applied online to Student Finance England in April 2013 only to later discover that she did not meet the eligibility requirements. In order to qualify for a student loan, a student must:
- be resident in England when the academic year begins;
- have been lawfully ordinarily resident in the UK for the three years before then; and
- be settled in the United Kingdom on that day.
Ms Tigere, who had only discretionary leave to remain, was ineligible under the rules of Student Finance England to access the student loans system owing to her failure to meet both the settlement criterion and the lawful ordinary residence criterion (which she did not meet until January 2015).
Ms Tigere, now 19, brought a legal challenge with her case ultimately proceeding to the Supreme Court. The issue considered by the Supreme Court was whether the criteria breached Ms Tigere’s right to education (under article 2 of the First Protocol to the European Convention on Human Rights) or unjustifiably discriminated against her in the enjoyment of that right.
The Supreme Court (by a 3:2 majority) found in Ms Tigere’s favour. The majority decision held that the application of the settlement criterion could not be justified because, although it may be legitimate to target resources on students who are likely to stay in the UK to complete their education and then contribute to the economy, the criterion was not rationally linked to that aim. In addition, the Court ruled that there were likely to be more proportionate (and less intrusive) means of achieving the stated aim. The Court also explored, having regard to the severity of the consequences of the criteria, the importance of the aim and the extent to which the criteria would contribute to that aim, whether a fair balance had been struck between the rights of Ms Tigere and the interests of the community, and decided that it had not.
The Court did, however, find that the requirement to have been lawfully ordinarily resident in the UK for three years was justified and supported by strong public policy reasons, including that it is justifiable to require a period of lawful residence as a condition to individuals being entitled to access public services.