Student loans, ILR, domestic violence and human rights
In a recent application for judicial review, OA v Secretary of State for Education [2020] EWHC 276 (Admin), the High Court considered whether the decision to refuse the Claimant a student loan breached her human rights. Mr Justice Nicol delivered the judgment on 13 February 2020.
Facts
The Claimant was a Nigerian national who had lived in the UK since 2011. She had entered as a Tier 4 student to study for a B.Sc. course, but her college was closed down before she had completed her studies. In 2013, the Claimant married a British citizen and was granted leave to remain as his spouse. The Claimant’s husband was abusive and she left him in July 2016. She explained that he retained her passport, and she therefore did not realise that her leave to remain in the UK expired in September 2016.
Upon discovering that she did not have leave, the Claimant applied for leave to remain as a victim of domestic violence. She was given an initial discretionary grant of leave outside the Immigration Rules to allow her to regularise her stay and prepare an application for Indefinite Leave to Remain in the UK (ILR) as a victim of domestic violence. The Claimant was subsequently granted ILR as a victim of domestic violence on 20 December 2017 and has since then been “settled in the UK” for the purposes of s.33(2A) of the Immigration Act 1971, meaning that she has been ordinarily resident in the UK without being subject to any restriction on the period for which she may remain.
In 2018, the Claimant began a B.Sc. course in Biomedical Science at the University of East London, assuming she would be eligible for a student loan. She applied for a loan to the Student Loans Company, without which she could not have afforded her course fees and maintenance costs. Her application was refused because she could not satisfy the three-year ordinary residence test to qualify for support, stipulated in the Education (Student Support) Regulations 2011 SI 2011 No. 1986, which exists under the Teaching and Higher Education Act 1988 s. 22.
Pursuant to paragraph 2 of Schedule 1 Part 2 of these Regulations, a person who “is settled in the United Kingdom […]” and “is ordinarily resident in England” must also be a person who “has been 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” to be eligible for support. The Claimant could not satisfy the three-year ordinary residence requirement because between 14 September 2016, when her leave to remain as a spouse ended, and 2 August 2017, when she was granted leave to remain as a victim of domestic violence, her residence in the UK was unlawful.
Having left her course at the University of East London due to her financial circumstances, the Claimant made new university applications and was admitted by London Metropolitan University to study Biomedical Science on 23 October 2019, with enrolment due to take place in early 2020.
Decision
As the 2011 Regulations do not themselves limit eligibility to student loans according to the sex of the applicant, this was a claim of indirect discrimination. The Claimant’s case was that the three-year lawful residence requirement discriminates against her as a woman, as the requirement of three years of lawful residence prior to starting a university course is likely to have a disproportionate effect on women. The reason for this was that “more women than men are likely to be the victims of domestic abuse and because one of the forms that domestic abuse can take is the control of travel documentation, meaning that abused spouses (predominantly women) are liable to have gaps in their leave to remain in the UK”.
The Government resisted the claim, arguing that the provisions were not discriminatory as the requirements for a student loan had to be seen as a whole, and those who are victims of domestic abuse may be advantaged by a quicker grant of ILR than if they had not been the victim of abuse. Alternatively, the Government submitted that if the provisions were discriminatory, the discrimination was justified. Student loans are a form of social benefit. In R (Tigere) v Secretary of State for Business Innovation and Skills [2015] UKSC 57, the Supreme Court had held unanimously that the three-year lawful residence requirement was justified, and there were strong public policy reasons to maintain that the residence had to be lawful. The Government also argued that it was not the case that all domestic abuse victims would have breaks in their leave, and where there were such breaks, they would not always be caused by the abusive partner, but it would be burdensome and costly for administrators to have to investigate the reasons for breaks in leave. The three-year lawful residence requirement had existed for a long time and having a “bright-line rule” was cheaper and easier to administer. Furthermore, it was submitted that a new change to the Regulations in 2020 prompted by this case to include a provision for victims of domestic abuse who are unable to show three years of lawful ordinary residence before they commence their course (which did not help the Claimant as it would only apply to courses beginning from August 2020) did not mean that the previous provisions were discriminatory.
Mr Justice Nicol observed that the UK is party to the European Convention on Human Rights as well as certain Protocols to the Convention, including the First Protocol. Article 2 of the First Protocol states: “No person shall be denied the right to education. […]”. It was accepted that the alleged discrimination fell into this ambit. Article 14 provides that “The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any grounds such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status”.
Mr Justice Nicol found that the requirement in the 2011 Regulations that the Claimant have three years of lawful residence in the UK before she began her course did discriminate against her as a woman, and had to be justified if that discrimination was not to be a breach of Article 14 and Article 2 of the First Protocol. In this case, the discrimination was not justified. Mr Justice Nicol did not accept that the discrimination could be justified by demonstrating that victims of domestic abuse were otherwise advantaged by quicker access to ILR. It was also not necessary to show that the provision, criterion or practice in question placed every member of the group sharing the protected characteristic at a disadvantage.
In regard to the changes to the Regulations in 2020, Mr Justice Nicol found that while it would be wrong to “equate such a policy decision with an admission that the position before the change constituted unjustified discrimination”, the change nonetheless made it more difficult to defend the previous position as “justified discrimination”. A less intrusive measure which would avoid the discrimination and constitute an “alternative bright line rule” would be for the Defendant to adopt the same approach in administering the student loan scheme as that taken by the Home Office in applications for ILR as a victim of domestic violence, and that taken by the Defendant in the new 2020 Regulations: not to investigate the reasons for breaks in an applicant’s leave. The facts of the present case could therefore be distinguished from those in R (Tigere) v Secretary of State for Business Innovation and Skills [2015] UKSC 57, in which the Supreme Court had found the requirement of three-year lawful ordinary residence to be justified. The Supreme Court’s reasoning included that a person should not benefit from their unlawful conduct or from that of their parents (which was not analogous to the present case), and that on balance, a “bright line rule” was justifiable as the “administrative burden involved in making the moral judgments” that would otherwise be required would be “intolerable”. Whereas in the present instance, a different non-discriminatory “bright line rule” could be implemented instead. While Mr Justice Nicol acknowledged student loans to be a form of social benefit, it could be inferred that the additional costs of retrospectively adopting the approach of the 2020 Regulations – which contain a provision that allows victims of domestic abuse who cannot show three years of lawful ordinary residence to qualify for support – would be “relatively small”.
The Defendant had therefore failed to justify the discrimination. Having held that there had been a breach of the Claimant’s rights under Article 14 of the European Convention on Human Rights when read with Article 2 of the First Protocol, he quashed the decision not to provide her with a loan.
Comment
The judgment may be of interest to those with ILR as a victim of domestic violence and to those seeking to bring a claim for indirect discrimination which relates to some aspect of their immigration history. However, it should be noted that the courts have taken varied approaches to the protection to be afforded to immigration status in discrimination cases depending on the nature of the discrimination. In R (Tigere) v Secretary of State for Business Innovation and Skills [2015] UKSC 57, the Supreme Court held by majority that there had been a breach of Article 14 where the Appellant had been denied a student loan on account of her immigration status, which prevented her from undertaking higher education in the UK, and Lady Hale accepted that immigration status was protected under Article 14 of the Convention. However, in Taiwo & Anor v Olaigbe & Ors [2016] UKSC 31, the Supreme Court dismissed an appeal concerning domestic workers who claimed their mistreatment by their employers amounted to discrimination on the basis of their immigration status, holding that immigration status could not be equated with nationality to qualify as a protected characteristic for the purpose of the Equality Act 2010. In OA v Secretary of State for Education [2020] EWHC 276 (Admin), the High Court observed the following in regard to the nature of the protected characteristic in question: “It is also of some note that the discriminatory ground in Tigere was ‘other status’ (immigration status). In the present case it is sex. If and so far as the nature of the protected status in issue is relevant, that weighs in the Claimant’s favour.”
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