Children with discretionary/limited leave now eligible for student loans
By shanthi-law, Aug 31 2015 02:09PM
The Supreme Court has given judgment in R (on the application of Tigere) v Secretary of State for Business, Innovation and Skill (Just for Kids Law intervening)  UKSC 57 in favour of a child with limited leave but did not fulfil the pre-existing criteria to be eligible for a student loan to pursue/fund higher education. Namely, Regulation 4(2) via paragraph 1(a) and (c) of Part 2, Schedule 1 of Education (Student Support) Regulations 2011 (SI 2011/1986) ('the Regulations'):
(a) of being settled in the United Kingdom (UK); and,
(b) 'has been [lawfully] 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'.
If settled in the UK, an eligible student will be liable to pay the reduced/subsidised home student fees due in England, rather than the far higher fees paid by international students from outside the European Economic Area.
This long-standing provision arguably prevented a generation of those children who came through the indiginous school system but only had limited leave to remain (in line with their family members or in their own right - unaccompanied minor asylum-seekers among them) from pursuing higher education along with their contemporaries or at all, despite being academically capable, purely owing to economic constraints, as they did not have Indefinite Leave to Remain ('ILR').
The child and her mother had arrived in the UK legally as dependants of her student father in 2001 when the child was just five or six years of age, however had become overstayers when her father had left the country in or around 2003.
Mother and daughter had remained in that capacity until October 2010, when the UK Border Agency (now UK Visas and Immigration, 'UKVI') served on them notices to this effect and informing them of their liability to be removed from the UK but granted them Temporary Admission at the same time (suggesting that the notification may have triggered a right of appeal to the First-tier Tribunal albeit this is not clear from the judgment).
Eventually, mother and daughter were granted Discretionary Leave to Remain ('DLR') on 30th January 2012. DLR is the predecessor to the current Limited Leave to Remain ('LLR') regime, which allowed recipients (unusually overstayers or those falling short of meeting the strict criteria(s) of the Immigration Rules for a compelling/exceptional reason) periods of leave to remain in batches of three years at a time that made the vast majority eligible to apply for ILR once they have completed six years continuous leave to remain in that category. (In contrast, the present LLR regime grants recipients leave in 30 month or 21/2 year batches that require those who possess such leave to complete 10 years continuous leave under that category to become eligible to apply for ILR).
Having completed their first three years of DLR between 30th January 2012 and 29th January 2015, mother and daughter were granted an extension of further three years of DLR until 30th April 2018. However, this still did not make the daughter eligible to apply for and/or receive a student loan to pursue her higher studies at University under the Regulations. As the daughter had been granted DLR on 30th January 2012, by 30th January 2015 it was conceded by the parties to the appeal by the time it arrived before the Supreme Court (albeit various alternative grounds were contended beforehand), that she had fulfilled paragraph 2(c)'s requirement to have completed three years lawful residence in the UK.
It seems the application submitted by mother and daughter on 29th January 2015 sought to pre-empt the above decision (by presumably, submitting the application on form SET(O) or (F), or both, for settlement rather than FLR(O) for extension alone) submitting an accompanying cover letter inviting the UKVI to dispense with and/or waive the six year minimum requirement to grant ILR. Predictably, this received what has now become the stock-response of the UKVI to requests seeking exercise of discretion in virtually all scenarios: No, specifically under Immigration Directorate
Instruction, Family Migration: Appendix FM, section 1.0b, para 11.3.1 (page 60 - cf: paragraph 6 of judgment).
Route to Supreme Court:
Proceedings were commenced in June 2013 and meandered through the High Court (cf:  EWHC 2452 (Admin)), where Hayden J had allowed the daughter's challenge under paragraph 2(a) [requirement to have ILR] but not paragraph 2(c) [to be lawfully resident for three years] of the Regulations, after a hiatus of over a year awaiting a decision in a similar case. Both parties then appealed against each of the adverse findings they received to the Court of Appeal on an expedited basis (cf:  EWCA Civ 1216), where the Secretary of State's appeal against paragraph 2(a) finding was allowed and, the daughter's appeal against the finding against her under paragraph 2(c) was dismissed by a panel compromising of Laws LJ, Floyd LJ and Vos LJ.
Delivering the majority decision of the Court, Lady Hale (Deputy President, with whom Lord Kerr and Lord Hughes agreed) held:
1) the requirement for an applicant to have ILR rather than DLR or LLR to be eligible for a student loan under paragraph 1(a) is unjustifiable and contrary to the provisions of Article 1 of the First Protocol (Right to Education) and Article 14 (Prohibition of Discrimination) of the European Convention of Human Rights 1950 ('ECHR'); however,
2) the requirement for an applicant to have lawfully lived in the UK for the preceding three years was a justifiable safeguard to protect the limited funds available and therefore compatible with the government's obligations under the ECHR and therefore lawful [it is this requirement Lady Hale refers to in the above video clip that the court was in unanimous agreement over] .
In a joint dissenting judgment, Sumption LJ and Reed LJ held that the Secretary of State for Business, Innovation and Skills ('SSBIS', under who's purview the student loan system is administered) had acted within the 'margin of discretion' afforded to governments by the ECHR and both aspects of the Regulations under challenge were lawful as they were reasonably open for the SSBIS to make.
At paragraphs 47-49 of her judgment, Lady Hale states that either paragraph 2(1)(a) of the Regulations should be 'read down' as being compatible with the requirements of the ECHR (i.e. paragraph 2(a) to include those granted DLR and/or LLR); or, alternatively, (b) sets the groundwork for applicants to seek and obtain a declaration that the provision in its current form is incompatible with the provisions of the ECHR on a case by case basis through the Courts, until a more compliant version of paragraph 2(1)(a) is devised. In short, not the immediate remedy that some applicants may have wanted, but a means to a remedy for those affected.