Student finance in English higher education is a contentious subject. Students are either required to pay the tuition fees applicable to home and EU students or the higher fees charged to students from outside the EU, and they may be eligible for a grant or loan to cover tuition fees or maintenance costs.

There is an enormous difference between the amount of tuition fees paid by a student resident in the UK or EU and those who are non-EU “overseas” residents. While undergraduate tuition fees for home and EU students are currently charged at up to £9,000 per year, the fees for overseas students can be more than double that. Postgraduate fees similarly differ. University study is therefore significantly less expensive for those who can demonstrate that they are entitled to pay tuition fees at the home/EU rate.

Furthermore, whether a person is eligible for financial support is a critical issue for potential students who, without access to a loan or grant, would otherwise be unable to fund their studies. Both of these issues are therefore of huge importance to many would-be students.

Eligibility requirements

There have been an increasing number of disputes regarding whether potential students are eligible to pay home/EU fees and whether they are entitled to financial support. The following requirements for both of these include that, as of the start date of the academic year for the proposed course, the student should have:

  • been “ordinarily resident” in the UK or certain other defined areas including the EEA for the three years immediately prior to that date (other than mainly for the purpose of receiving full-time education)
  • “settled” status or nationality. This means that they must be either a citizen of the UK or another EU country or have the right of permanent residence or indefinite leave to enter and remain in the UK. That is, there should be no restriction on their right to remain under immigration laws

The meanings of these phrases have proved fertile grounds for dispute as it is not always obvious whether a student falls within them. Increasingly often, potential students resort to litigation when they do not agree with the assessment of their status.

Recent new guidance was given by the Court of Appeal in the case of R(on the application of Tigere) v Secretary of State for Business, Innovation & Skills [2014] EWHC 2452 (Admin).

Courts favour interests of wider policy considerations

The applicant, a Zambian National, was deemed ineligible under the above requirements and refused a student loan. She had lived in the UK legally as a dependant on her father’s student visa from the age of six and was educated in the English education system. However, when her father left the UK, her mother did not regularise her immigration status for several years. In 2010, she was granted temporary admission followed by discretionary leave to remain (and it was anticipated that she would eventually be entitled to apply for indefinite leave to remain in 2018), but discretionary leave to remain is currently insufficient to constitute “settled” status. Furthermore, due to her immigration status over the past three years, she was found not to be “ordinarily resident”.

The applicant, who had no other way of funding her studies, challenged the “blanket exclusion” predicated on her leave to remain status, on the basis that it was incompatible with her right of access to education under the European Convention on Human Rights, and amounted to discrimination on grounds of her immigration status and, therefore, ultimately her national origin. She also argued that she satisfied the requirement for 3 years’ ordinary residence by virtue of having been granted temporary admission followed by discretionary leave to remain which meant she was lawfully resident during that time.

The CoA, upholding the decision of the BISS, found that, in an area of national strategic policy for the distribution of limited public funds, the BISS was entitled and obliged to accord a high priority to opening higher education to those most likely to deploy their skills in the UK economy.

The question was then whether the policy taken to achieve that was proportionate, balancing the rights of individuals affected against the importance of the objective and recognising that any distinction drawn on the basis of a person’s connection with the UK by reference to their immigration status would constitute discrimination under Article 14 ECHR.

Although it resulted in a harsh outcome for the applicant, the CoA found that the policy was proportionate and justified the aim. The CoA recognised the need for certainty and workability in that the system cannot be opened up to arguments about the impact of the ECHR on a case by case basis.

The decision shows that the courts are prepared to interpret potential students’ rights restrictively and apply the rules strictly in the interests of wider policy considerations. The inevitable consequence of this is that there will be harsh outcomes for some individuals.

However, we understand that the applicant in Tigere is seeking permission to appeal to the Supreme Court and practitioners will watch further developments in this case with interest.