R (Tigere) v Secretary of State for Business, Innovation and Skills

Facts

Beaurish Tigere arrived in the UK from Zambia at the age of six. She came as a dependent of her father who had a student visa. The father left in 2003 but Tigere remained with her mother who over-stayed. The UK Border Agency became aware of this situation in 2010 and granted them temporary permission to remain which became discretionary leave to remain in 2012. Tigere will be entitled to apply for indefinite leave to remain in 2018 but until that time she was unable to apply for a student loan despite achieving three A-Levels and a place at Northumbria University to study International Business Management.

The case was brought on behalf of Tigere by Public Interest Lawyers who argued that the policy was an infringement of Tigere's right to education under Article 2 of the First Protocol of the European Convention on Human Rights. This provision reads "[n]o person shall be denied the right to education" and the negative formulation does mean that there is no automatic entitlement to public support. However Tigere argued that this ought to be read in line with Article 14 of the Convention that states her rights "shall be secured without discrimination on any ground" (in this case her immigration status).

High Court

The High Court found in favour of Tigere and held that the blanket ban on her eligibility for a student loan based on her immigration status was a disproportionate interference on her right to education and also constituted discrimination under Article 14.

Court of Appeal

The Secretary of State appealed the decision to the Court of Appeal which held that the case concerned an area of "national strategic policy for the distribution of scarce resources in a field of great social importance" and therefore a wide margin of appreciation should be afforded to government policy. With this in mind the appeal was allowed.

Supreme Court

The Supreme Court allowed Ms. Tigere's appeal by a majority of three to two. Lady Hale (with whom Lord Kerr agreed) gave the leading judgment and concluded:

Lord Hughes offered a concurring judgment but slightly disagreed with Lady Hale by suggesting that any future rules drawn up by the Secretary of State would not necessarily have to include an 'exceptional case' discretion. In particular he noted:

The joint minority judgment handed down by Lords Reed and Sumption argued that the appropriate test is whether the scheme is 'manifestly without foundation' and concluded that:

Impact

Solicitor Paul Heron, of Public Interest Lawyers, said:

“My client is a talented and brave individual and is a credit to the comprehensive school system in Britain.

She has worked hard to obtain excellent grades. Yet she had been denied her opportunity to go to university for the past two years. She has faced this government down.

The regulations which were introduced by the last Tory/Liberal government made absolutely no economic sense and appear to have been dreamed up in a Daily Mail think tank.”

The Coram Children’s Legal Centre provided evidence for the hearing. Their solicitor, Alison East, said:

The Daily Express noted that the judgment came "as figures revealed that students from the European Union have dodged paying back £43million in taxpayer-funded loans."

Just for Kids Law intervened in the case and estimated that between 600-1,000 students were affected by the restrictions each year. Their director Shauneen Lambe responded to the judgment by saying: