Administrative Court; Foster J, [2022] EWHC 15 (Admin), 6 January 2022

The claimant challenged the Education (Student Support) Regulations 2011 (as amended) on the basis that they breached Article 14 ECHR read with A2P1 by restricting eligibility for student finance to individuals to would-be higher education students who were “settled in the United Kingdom” for immigration purposes on the first day of the first academic year of their course. The claimant, whose academic course started on 1 September 2020, had made an application for settled status. He had, in respect of previous applications, used the Home Office Super Priority visa application service which granted visas within 24 hours on payment of a fee, the normal turnaround offered by the Home Office for disposal of an Indefinite Leave To Remain (“ILR”) Visa application being six months. The Super Priority scheme, and a related Priority scheme, were withdrawn by the Home Office with only a few days’ notice on 31 March 2020, unknown to the Claimant. He became eligible to apply for ILR on 14 April and did so on 17 May 2020, a day before his previous visa was due to expire. He applied for student finance on 24 August 2020. He was granted ILR on 23 November 2020 but was advised by letter of 18 December 2020 that he was ineligible for student finance. After having unsuccessfully appealed this decision he sought judicial review. Foster J ruled that the discrimination in issue fell within A2P1, that the claimant was entitled to rely on the broad approach to “status” approved by the Supreme Court in  R (SC) v Secretary of State for Work and Pensions [2021] UKSC 26, [2021] 3 WLR 428 (see previous post), and that the discrimination was unjustified and unlawful.

The claimant argued that he had been treated differently from other students similarly entitled to ILR by the withdrawal of the fast-track policy, alternatively that (contrary to Thlimmenos v Greece (Application no. 34369/97) (2000) 31 EHRR 15) he was treated in the same way as those who did not meet the criteria for ILR, despite being in a materially different situation was not treated differently from them. Foster J accepted at §76, that the claimant had been subject to differential treatment for the purposes of Article 14. The parties had not materially disagreed as to whether the treatment complained of fell within the scope of A2P1 though the defendant had disputed whether the claimant had been discriminated on the basis of “other status”. She agreed at §54 that “a broad, non-mechanistic approach is necessary when deciding whether the treatment complained of could be described as on grounds of ‘other status’” by reason of the decisions in R (Tigere) v The Secretary of State for Business, Innovation and Skills [2015] UKSC 57, [2015] 1 WLR 3820 and accepted at §61 that the claimant was “within the class of persons intended to benefit from the student finance provisions”.

The claimant also relied on R (Stott) v Secretary of State for Justice [2018] UKSC 59; [2020] AC 51, in which the Supreme Court had departed from its previous position in R (Clift) v Secretary of State for the Home Department [2006] UKHL 54, [2007] 1 AC 484 as illustrative of the flexibility of the concept of “other status”, Foster J at §66 citing Lady Black’s observation at §75 that she was “cautious about spending too much time on an analysis of whether the proposed status has an independent existence, as opposed to considering the situation as a whole, as encouraged by the ECHR in Clift v United Kingdom”. Her Ladyship also took into account the decision of the Supreme Court  in R(A) the Criminal Injuries Compensation Authority Supreme Court, [2021] UKSC 27, [2021] 1 WLR 3746 (see previous post) in which the Court (per Lord Lloyd-Jones) noted that the ECtHR had in Clift v UK had given (§42) “a broad meaning to “any other status” in Article 14”, had “[i]n particular … rejected (at paragraph 56) earlier notions that ‘any other status’ must relate to innate or inherent characteristics’” and “At the very least, suggest[ed] disapproval of an over technical approach.” Finally, the claimant had placed particular reliance upon the decision of the Supreme Court in SC as establishing that “‘status’ now has an ‘uncomplicated and broad reach’” with the effect that “The need to establish status as a separate requirement had ‘diminished almost to vanishing point’” (§75). Foster J accepted that “the Court must look to the whole circumstances of the case when seeking to discover whether the construct of culpable Article 14 treatment has taken place. The case of SC settles the position”.

Foster J went on to cite SC §§69 and 71 from which the judge concluded that “[s]tatus can … be acquired and limited in time … and may refer to the specific circumstances of a claimant, see the recent case of SM v Lord Chancellor [2021] EWHC 418, [2021] 1 WLR 3815 where the distinction drawn was between immigration detainees in prison compared with immigration detainees in removal centres”. She accepted at §82 that the claimant, as a person who had “applied in time and [was] as at 1 September 2020 … entitled to ILR but [was] prevented by the withdrawal of the Priority Services from achieving it by then”, was in a relevantly similar situation to a person who “had applied in time and achieved ILR by 1 September 2020”, going on to conclude that “[t]he difference in treatment appears to be unjustified, subject to arguments on a bright line rule or other reasons against”. The judge went on to cite the decision in Tigere in which “the difference in treatment … was found to be inconsistent with the objectives behind the Regulations which were expressed by Lord Hughes at §54” of the decision (in summary, targeting the student loan scheme on those who are properly part of the community and therefore likely to remain in England (or at least the UK) indefinitely, so as to increase the likelihood of repayment and providing a clear and easy to apply rule to restrict administrative costs).

At §90 Foster J stated that, “even though the cases are not the same, the Tigere analysis may be applied here. In the present case a cohort of people will (if not remediated) be disentitled from pursuing their academic careers, probably, or at least possibly for a considerable time, with no guarantee of being able to recommence their studies. I do not accept, as was argued, that there is here no infringement of rights. At the date of withdrawal of the Super Priority and Priority Services a closed class of would-be students became, on that withdrawal, disentitled from acquiring student finance for their university courses”. At §95, in considering justification, the judge rejected the argument put for the Secretary of State that students such as the claimant were culpable in having proceeded with courses notwithstanding the unsettles nature of their immigration status, having described the claimant as having been “between a rock and a hard place” by reason of the withdrawal, without notice, of the Super Priority scheme. At §97 she rejected the argument that “requiring the Defendant to mitigate the effects of the discriminatory treatment under the secondary legislation of the Regulations” risked undue interference with political choices. She also rejected the argument that any remedy allowing the claimant to benefit under the Regulations would be quite disproportionate to the problem (§98), stating at §100 that there was an “identifiable cohort of people for whom it was immediately impossible to obtain student finance for the September 2020 year if the Defendant insisted upon evidence of settled status by 1 September 2020” and concluding at §101 that the discrimination in issue was neither justified nor proportionate.

Claimant and Interested Party: Amanda Weston QC and Gráinne Mellon, instructed by Watkins Solicitors

Defendant: Leon Glenister, instructed by Government Legal Department