In order to qualify for a student loan, a student must (a) be resident in England when the academic year begins (b) has been lawfully ordinarily resident in the United Kingdom for the three years before then and (c) be settled in the United Kingdom on that date. The issue in this case was whether either criterion (b) or criterion (c) breached the student’s right to education, under Article 2 of the First Protocol to the European Convention on Human Rights, or unjustifiably discriminated against her in the employment of that right.
The student in this case is a National of Zambia who came to the United Kingdom with her parents in 2001, at the age of 6. She had been educated in the United Kingdom from reception year through to sixth form study. She obtained 7 GCSEs and the equivalent of 3 A Levels. These grades would have been sufficient to enable her to take up the place she had been offered by Northumbria University to read for a degree in international business management in the academic year 2013-14. In order to do so she needed a student loan. The Student Loans Company Ltd (Student Finance England) requested further information about her immigration status.
The student had lived in the UK since 2001 since the age of 6. Her father had a student Visa and she and her mother came with him, lawfully as his dependents. Her father left the UK in 2003, but she and her mother stayed on after their Visas had expired. No steps were taken to regularize their immigration status after the father left the United Kingdom in 2003 and in September 2011 the UK Border Agency served upon the student and her mother forms notifying them that they were overstayers and thus liable to removal from the UK but at the same time granting them temporary admission to the UK. On 30 January 2012 the UK Border Agency granted them both discretionary leave to remain until 29 January 2015.
The student did not take up the offered place at Northumbria University but applied through clearing for a place closer to her home in York. She was offered a place and started a course at the University of Hull in October 2013, with the aid of a student overdraft facility and funding from her mother. However, it soon became apparent that she would not be able to afford the cost and withdrew after two weeks. She made another attempt to start a course at Middlesex University in the academic year 2014-15 but again withdrew after the first term due to financial pressures. She now has unconditional offers from five universities and hopes to start again in the academic year 2015-16.
In summary, this young person has been in the country for years, having studied alongside their peers and have planned and qualified to go on to university when their peers do so often unaware of their immigration status and the barrier it could pose to achieving their academic potential and ambitions. This young person brought proceedings and claimed that both the settlement criterion and the lawful ordinary residents criterion constituted unjustified and discriminatory restrictions on her right to education under both Article 2 of the first protocol and Article 14.
The young person complained that denial of access to a student loan has denied her access to the higher education provided in this country. But her real complaint is that some people get student loans and others do not, in short of discrimination.
The Judgement found that the young person was clearly entitled to a declaration that the application of the settlement criterion breached her rights under Article 14 and A2P1 of the Convention. The court concluded that there was no doubt that the student was entitled to a student loan and left it open to the Secretary of State to devise a more carefully tailored criterion which will avoid breaching the convention rights of other applicants.