R (on the application of Tigere) v Secretary of State for Business, Innovation and Skills [2015] UKSC 57

Beaurish Tigere, a Zambian national resident in the UK since age six with discretionary leave to remain, was denied a student loan because she was not 'settled' under the eligibility rules. The Supreme Court held by majority that the settlement criterion unjustifiably breached her right to education under Article 14 read with Article 2 of Protocol 1.

Facts

The appellant, Beaurish Tigere, a Zambian national born in 1995, came to the UK in 2001 aged six as a dependant on her father’s student visa. After her father left in 2003, she and her mother overstayed. She was educated entirely in England, achieving strong A-level results and offers from several universities. In 2012 she was granted discretionary leave to remain (DLR) until 2015, later extended to 2018. Under Home Office policy she would become eligible for indefinite leave to remain (ILR) in 2018.

To take up her university place she required a student loan. Under the Education (Student Support) Regulations 2011, eligibility required: (a) ordinary residence in England on the first day of the academic year; (b) three years’ lawful ordinary residence in the UK; and (c) being ‘settled’ in the UK within the meaning of section 33(2A) of the Immigration Act 1971 (i.e. holding ILR). She satisfied neither the settlement nor the lawful three-year residence criteria.

Issues

Whether the settlement criterion and/or the lawful ordinary residence criterion breached the appellant’s rights under Article 2 of the First Protocol (A2P1) to the ECHR, either alone or read with Article 14 (prohibition of discrimination on grounds of ‘other status’, here immigration status).

Arguments

Appellant

The settlement criterion was not rationally connected to the legitimate aim of targeting loans at those integrated into UK society and likely to contribute to the economy. The appellant was, in reality, as integrated as her settled peers and could not be removed. A less intrusive, more tailored rule (such as a long-residence rule analogous to Immigration Rule 276ADE(1)) could have been used. Both criteria were therefore disproportionate.

Respondent

The criteria pursued legitimate aims of targeting finite resources on those with a strong and enduring connection to the UK, likely to repay loans and contribute to the economy. Bright-line rules were necessary for administrative clarity, consistency and efficiency. The ‘manifestly without reasonable foundation’ test applied, and the rules fell within the Secretary of State’s wide margin of discretion.

Judgment

The Supreme Court allowed the appeal by a 3-2 majority (Lady Hale, Lord Kerr and Lord Hughes; Lord Sumption and Lord Reed dissenting), holding the settlement criterion incompatible with the appellant’s Convention rights, but unanimously upholding the lawful ordinary residence criterion.

Lady Hale (with Lord Kerr)

Education enjoys direct protection under A2P1 and the ‘manifestly without reasonable foundation’ test, developed in welfare benefits cases, was not the appropriate standard given the particular significance of education recognised in Ponomaryov v Bulgaria. Applying the four-stage proportionality test from Bank Mellat (No 2):

• The aims of targeting loans at those likely to remain and contribute were legitimate.
• However, the settlement rule was not rationally connected to those aims for the appellant’s cohort, who were just as integrated and likely to remain as settled students.
• A less intrusive measure was available: a tailored bright-line rule based on long residence (e.g. modelled on Immigration Rule 276ADE) with or without an exceptional cases discretion.
• The severe impact on individuals (enforced delay of up to ten years in pursuing higher education) and the loss to the wider economy outweighed the administrative convenience of the existing rule.

The lawful ordinary residence criterion was, however, justified: there are strong public policy reasons for requiring lawful residence, the delay involved was shorter, and relaxation would create intolerable administrative burdens.

Lord Hughes

Agreed the appeal should be allowed but on a narrower basis. The case was essentially one of discrimination under Article 14, not a freestanding breach of A2P1, since A2P1 imposes no duty to fund tertiary education. The settlement rule, by importing the immigration concept of ILR, failed to capture those who, like the appellant, were in reality ‘home grown’ students. The Secretary of State could readily devise a clear long-residence rule serving the same objectives without infringing Convention rights. He disagreed that an ‘exceptional cases’ discretion was required; a clear rule without such discretion would suffice.

Lord Sumption and Lord Reed (dissenting)

The correct test was whether the policy was ‘manifestly without reasonable foundation’, as consistently applied by the Strasbourg court (Stec, Bah) and domestically (Humphreys, SG). University education is optional and fee-based; the margin of appreciation widens with the level of education (Ponomaryov). The settlement and residence rules were rational, predictable and administratively necessary. Wherever a line is drawn there will be hard cases just outside it; that does not render the rule disproportionate. The matter fell squarely within the Secretary of State’s area of political and administrative judgment.

Remedy

The majority granted a declaration that the application of the settlement criterion to the appellant breached her rights under Article 14 read with A2P1, leaving the Secretary of State to devise a more carefully tailored criterion.

Implications

The decision establishes that, in the context of state financial support for higher education, blanket exclusionary rules tied to immigration status (specifically ILR) may fail proportionality review where they exclude individuals with strong, enduring connections to the UK who cannot realistically be removed. The case clarifies that:

• Immigration status is an ‘other status’ for Article 14 purposes (now uncontested).
• The ‘manifestly without reasonable foundation’ test does not straightforwardly apply to discrimination in access to education, which enjoys direct Convention protection — though the dissent disputes this departure.
• Bright-line rules remain legitimate, but the particular line chosen must itself be rationally connected to the aim and proportionate; an exclusionary line with no scope for considering deserving cases on the wrong side may not be justified.
• The court drew a clear distinction between the settlement criterion (struck down as applied) and the lawful ordinary residence criterion (upheld).

The judgment is significant for young people with discretionary or limited leave to remain who have been raised and educated in the UK, enabling them to access student finance on a fairer basis. It also illustrates the limits of judicial deference where fundamental rights and finite public resources intersect, and the continuing tension within the Supreme Court over the appropriate intensity of proportionality review in social and economic policy. The ruling does not require individualised assessments and leaves the precise replacement rule to the Secretary of State, including the possibility of a long-residence rule without any exceptional cases discretion.

Verdict: Appeal allowed by majority (3-2). The Supreme Court declared that the application of the settlement criterion in the Education (Student Support) Regulations 2011 to the appellant breached her rights under Article 14 read with Article 2 of the First Protocol to the ECHR. The challenge to the lawful ordinary residence criterion was unanimously dismissed.

Source: R (on the application of Tigere) v Secretary of State for Business, Innovation and Skills [2015] UKSC 57