The UK Supreme Court considered whether the regulations breached the applicant’s right to education, or unjustifiably discriminated against her in the enjoyment of that right. Lady Hale, writing the leading judgement, found that the right to education does not oblige a state to provide any particular system of education. However, if the state sets up higher educational institutions it will be under an obligation to provide a right of access to them.30 The question is whether the discrimination in this case is justified.31 The Respondent Secretary of State did not address his mind to the educational rights of students with discretionary or limited leave to remain (the applicant’s visa category) when making the regulations.32 The settlement criteria pursue a legitimate aim, namely targeting resources on those students who are likely to stay in the UK to complete their education and afterwards contribute to the UK economy through their enhanced skills and the taxes they pay.33 The means chosen to pursue that aim, however, were not rationally connected to it. Although the applicant did not yet have full residence, her established private life in the UK means that she cannot be removed unless she commits a serious criminal offence.34 Even if a ‘bright line’ rule is justified in the particular context, the particular rule chosen has to be rationally connected to the aim and a proportionate way of achieving it. Exclusionary rules, which allow for no discretion to consider unusual cases falling the wrong side of the line but equally deserving, are harder to justify.35 In this case, a bright line rule which more closely fitted the legitimate aims of the measure could have been chosen. Given the comparatively small numbers involved, it has not been shown that it would be administratively unworkable to provide student loans to at least some of those with discretionary or limited leave to remain.36 The denial of student loans has a very severe impact upon those it affects.37 Therefore, the settlement criteria in the regulations unjustifiably infringed on the applicant’s rights.38 However the lawful residence criterion was compatible with the applicant’s rights. There are strong public policy reasons for insisting on a period of lawful ordinary residence before a person becomes entitled to public services. If the requirement were to be relaxed it would involve an intolerable administrative burden. The overall balance of harm involved in a delay of up to three years is of a different order from that resulting from the settlement criterion.39 FREE AND EQUAL A Human Rights Act for Australia 2022 123

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