Pandemic problems and discrimination—student finance challenge succeeds (R (Naeem) v Secretary of State for Education)

Monday 31 January 2022

Co-authored by Gráinne Mellon and Rehab Jaffer, both of Garden Court Chambers.

This article was first published by Lexis®PSL on 26 January 2022 and can be found here (subscription required).

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Public Law analysis: The High Court has once again considered the thorny issue of discrimination in the context of the Student Finance Regulations—although on this occasion in the context of the coronavirus(COVID-19) pandemic. This case concerned judicial review proceedings brought by two students who successfully argued that the requirement in the Education (Student Support) Regulations 2011 (as amended) for them to be 'settled' in the UK on the first day of the first academic year of their respective courses, in order to be eligible for student finance, was discriminatory and contrary to Article 14 of the European Convention on Human Rights (ECHR) in the context of the coronavirus pandemic. The court ruled that the Secretary of State for Education breached both students' rights under Article 14 (protection from discrimination) and Article 2 of the First Protocol of the ECHR (right to education). The court proposed to remedy the unlawful discrimination by granting declarations and orders quashing the decision to refuse student finance in the case of both students. Written by Gráinne Mellon, barrister at Garden Court Chambers and junior counsel to the claimant in the case, and Rehab Jaffer, pupil barrister at Garden Court Chambers.

R (Naeem) v Secretary of State for Education and Kyra Morris [2022] EWHC 15 (Admin)

What are the practical implications of this case?
This case is a useful exposition of recent Article 14 jurisprudence in both Strasbourg and domestic courts. In particular, it explores and summarises the definition of 'other status' and the principles surrounding the justification of discrimination in the context of Article 14.

The judgment remedies an injustice caused by pandemic-related delay and the failure of the Secretary of State for Education to properly consider the circumstances of two students who, but for administrative problems caused by the pandemic, would otherwise have obtained settled status prior to 1 September 2020 and therefore been eligible for student finance.

While the Secretary of State accepted the issue was one which engaged the students' human rights, he argued, among other points that the 'bright line' rule and its effects on the claimant were justified. However, the court took the view that the very narrow class of affected persons and the disproportionately severe impact upon them was unlawful and capable of remedy with little inconvenience to the Secretary of State.

What was the background?
The claimant, Mr Naeem and the interested party, Ms Morris are both young people who have lived in the UK for some time. Both had planned to use the Home Office Super Priority System to obtain proof of their residence status prior to the first year of their studies. However, when the Home Office, with only a few days' notice, withdrew the Priority Service on 31 March 2020 due to the pandemic, both students had no option but to apply using the slower route with uncertain timescales.

They both started their degrees at their respective universities in the autumn term in 2020 and subsequently obtained notification of indefinite leave to remain status. However, they discovered that under the Student Support Regulations they were unable to obtain student finance if they did not have indefinite leave to remain in the UK by 1 September before the start of the first term of their respective courses. For Ms Morris, the Home Office issued confirmation on 4 September, just a few days after the deadline under the regulations, and Mr Naeem's confirmation came through later in the term. They also discovered they were precluded by the student loan regulations from obtaining a student loan for the duration of their degree courses, not just the first year. Both went through the appeal procedure without success, despite Independent Adjudicators appointed by the Secretary of State for Education concluding that they were not at fault but were in a difficult and unfair position owing to delay resulting from the pandemic.

Without student loans, both students faced being required to withdraw from their respective courses of study with an outstanding debt to their respective universities.

What did the court decide?
The court ruled that the Secretary of State for Education breached both students' rights under Article 14 (protection from discrimination) and Article 2 of the First Protocol of the ECHR (right to education).

In considering whether Article 14 applied, the court addressed the 4 questions in R (DA) v Secretary of State for Work and Pensions (Shelter Children's Legal Services intervening) [2019] 1 WLR.

Firstly, the regulation of student finance was deemed to fall within the ambit of Article 2 Protocol 1, per R (Kebede) [2013] EWHC 2396 (Admin).

Secondly, the court considered whether the claimant and the interested party fell into a discernible 'other status' for the purposes of Article 14, by reference to the cases of R (Tigere) v The Secretary of State for Business, Innovation and Skills [2015] UKSC 57, R (Stott) v Secretary of State for Justice [2018] UKSC 59, R(A) the Criminal Injuries Compensation Authority [2021] 1 WLR, and R (SC, CB and 8 children) v SSWP [2021] UK SC 2671.

The court highlighted the importance of serving the objectives of the Regulations, and reiterated that the establishment of a status and the comparator group against whom detrimental treatment is claimed, can be elusive, and may be expressed in more than one way. The court accepted that the Claimant and the Interested Party were just as entitled to student finance as the comparator group, who were those unaffected by the Priority Scheme.

Thirdly, the court considered whether differential treatment by the respondent could be justified. The court accepted the claimant's analogy with the case of Thlimmenos v Greece (2000) 31 EHRR 15, namely, that the young people, in this case, were treated in the same way as others who did not meet the criteria for indefinite leave to remain despite being in a materially different situation such that they should have been treated differently from them.

Fourthly, the court highlighted the defendant's failures to mitigate the severe effect of withdrawal of the Priority Services in the limited way required to protect this group. The individual circumstances of the students and their loss of finance for the whole of the degree course if the 1 September date were missed was a significant weight in this determination. The cases of R v Docherty [2017] 1 WLR 181 and Minter v United Kingdom (2017) 65 EHRR SE6 were distinguished, as the differential treatment relied upon in this case did not flow exclusively from the commencement of a new legislative regime, but from a distinct ground of discrimination.

As outlined above, the court noted the importance of a 'bright line' rule concerning qualification for Indefinite Leave to Remain, but highlighted that on the facts of this case, it was not difficult for the Secretary of State for Education to construct a scheme capable of catching those who made an application, which would have acquired settled status but for the suspension of the priority services and to do so would remedy a real unfairness in this case.

Having answered yes to the above four questions, the court concluded that the Secretary of State for Education had unlawfully discriminated against the students by treating them less favourably than those who were not affected by the sudden withdrawal of the Super Priority Scheme. The claimant's claim therefore succeeded.

The court granted orders to remedy the unlawful discrimination-namely declaration and orders quashing the decisions to refuse student finance for both students.

The Secretary of State has now agreed to an order to re-determine Mr Naeem and Ms Morris' applications for student finance, disapplying the requirement to demonstrate 'settled status' by 1 September in regulation 2(1)(a)(i) of the Education (Student Support) Regulations 2011, SI 2011/1986

Gráinne Mellon is a barrister and Rehab Jaffer is a pupil at Garden Court Chambers. If you have any questions about membership of LexisPSL’s Case Analysis Expert Panels, please contact caseanalysiscommissioning@lexisnexis.co.uk.

Case details

  • Court: Administrative Court, Queens' Bench Division, High Court of Justice
  • Judge: Mrs Justice Foster DBE
  • Date of judgment: 6 January 2022

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