Migrants’ right to education: an unfair exclusion

Background

The criteria used by the Scottish Government to determine eligibility for student support for young people without settled status have been found to violate article 14 (prohibition of discrimination), when read with article 2 (right to education) of Protocol 1 of the European Convention on Human Rights: Jasim v Scottish Ministers [2022] CSOH 64.

The petitioner, a medical student, arrived from Iraq as a child. Her entire high school education had been in Scotland. But she was denied student funding because she did not meet the “long residence” criteria applied to those without settled status. Young people under 18 years of age (on a specified day prior to their course start date) must have lived in the UK for seven years; those over 18 must have lived here half their lives.

The petitioner, who was 17 at the start of her course, was 58 days short of achieving seven years’ residence. She could not defer her course to achieve the required residence: the “cliff edge” in the rules at age 18 meant she would not be eligible for support in later years until she had lived in the UK for half her life, by when she would be nearly 23. Instead, her family scraped together the money to pay her fees, putting themselves under what the court called “intolerable financial pressure”.

Precedent?

This is not the first time that refusal of student funding on the basis of immigration status has been litigated. Prior to 2017, the regulations denied support to all migrants without settled status. In Tigere [2015] UKSC 57, the Supreme Court found the identical English regulations to be unlawful under the same ECHR articles at play in this decision. This led to the UK Government introducing long residence criteria in England. These were then copied by the Scottish Government in amendments to its regulations (the Student Allowances (Scotland) Regulations 2007, now the Student Support (Scotland) Regulations 2022).

Remarkably, Scottish ministers decided that no equality impact assessment or consultation was required, despite complaints from the relevant committee of the Scottish Parliament. This omission appears to have led to the obvious point being missed that the cliff edge in required residence at age 18, while not a concern in England (where less than 1% of students begin higher education before turning 18), created an arbitrary but very significant difference in eligibility criteria between the nearly 50% of young people who will start university when under 18 and their marginally older peers in the same school year.

The decision

Lord Sandison found that the long residency rules “fail to strike a fair balance between the impact which they have on those whom they exclude from eligibility for student support despite objective clear connection with Scotland which it is reasonable to suppose will continue, and the likely benefit to the state of adopting a set of rules which, while clear, provide only an approximate means of achieving the objective of the policy which they are intended to implement” (para 55).

The fundamental issues were that (1) length of residence, while being an easy to apply criterion, is a very imprecise indicator as to nature and strength of an individual’s connection to a country; (2) the impact of denying higher education support to an individual such as the petitioner was “very considerable indeed”; and (3) it had not been shown that it would be unworkable to have a more tailored approach to meet those cases, such as the petitioner’s, who fell outwith the crude rule but within the underlying policy intention.

The decision gives very significant weight to the right to education, which it describes (citing Tigere) as “a right which enjoys direct protection under the Convention, [and] one which has been recognised as so fundamental a right as to fall to be regarded as constitutive of a democratic society and not properly to be subjected to a restrictive interpretation diminishing its practical effect” (para 44). It also refers to the importance of society’s interest in the integration of minorities (necessary to “achieve pluralism and thus democracy”: para 43), highlighting how the deployment of immigration status as a ground of discrimination can interfere with this by causing a significant degree of social exclusion.

Lord Sandison’s decision also includes a helpful discussion and demonstration of the approach which should be taken to assessing the level of scrutiny to be applied by a court in judicial review (the “nuanced” approach adopted by the Supreme Court in SC [2021] UKSC 26: para 36). The fact that the legislative process of introducing the long residence criteria “left something substantial to be desired” was a factor which increased the level of scrutiny the court was entitled to apply; though, ultimately, the court stated it would have reached the same decision, even if the degree of scrutiny to be applied had been “much less”.

A final point worth making is that this is a case which has established a broader change for young people in Scotland by using the Human Rights Act. Given that this particular legislation is under threat, it is important to highlight the successes it can bring about.