A new judgement from the Court of Appeal has stated that international students who do not hold indefinite leave to remain are not eligible to apply for student loans. The case, R (on the application of Tigere) v Secretary of State for Business, Innovation and Skills  EWCA Civ 1216 (31 July 2014) deals with the right to education under Article 2 of the first protocol (A2P1) and Article 14 of the European Convention on Human Rights. According to the Court of Appeal, the UK was not in breach of the human rights of those individuals ineligible for student loans because they did not have indefinite leave to remain in the country.
Background of the Case
The claimant’s father obtained a Tier 4 Student visa and she entered the UK as his dependent when she was 6 years old. Her father left the UK in 2003 when his visa expired and the claimant and her mother continued living in the UK, unlawfully overstaying their leave. The UKBA served the claimant and her mother with a notice stating they were liable to removal. They were granted temporary admission, and on 13 January 2012 and further granted discretionary leave to remain (DLR) in the UK until 29 January 2015.
All of the claimant’s education has been in the English educational system. The claimant proved to be academically successful and had a number of offers of university places. The Claimant applied for a student loan in April 2013, but she did so online via the Student Finance England website. When struggling to answer questions about her immigration status, she sought legal advice. Her solicitor confirmed that it was likely she would be refused a loan because of the immigration position.
DLR does not satisfy the conditions of eligibility for student loans under the Education (Student Support) Regulations 2011. There are eight categories of persons who are eligible for student loans. Seven of these categories comprise persons having rights or a status under EU law or associated rights. The Court of Appeal was faced with the issue of whether the claimant’s leave to remain was a breach of her right of access to education A2P1 and whether it had the effect of unjustifiable discrimination against her on the ground of her immigration status under Article 14.
The Claimant’s grounds of appeal was based on two points:
- The first is that her period of temporary admission between 2010 and 2012 should count towards
lawful residence; and
- The second was, that the Claimant was, between 2003 and 2012, an over stayer should not count against her because, as a child aged 6 on entry, she bore no responsibility for her later irregular immigration status.
Court of Appeal Judgement
It is common ground that such a person, if not a British citizen, must have been granted indefinite leave to remain. It is also common ground that ordinary residence means lawful ordinary residence, though there is an issue arising on the Claimant’s cross appeal on ground four of the judicial review grounds before Hayden J whether residence pursuant to the grant of temporary admission counts as lawful ordinary residence. On the face of the 2011 regulations, the Claimant does not fall within the basic category, nor, of course, any of the other seven categories.
The point on temporary admission is bad. It is clear that a person granted temporary admission under paragraph 1 of Schedule 2 to the Immigration Act 1971 is in exactly the same position vise vie the legality of his presence in the United Kingdom as opposed to as a person detained during the period in question. Such a person could not be regarded as lawfully resident here.
I would dismiss the cross appeal.