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
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