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University tuition fees and discretionary leave to remain

Recent press coverage1 has highlighted a black hole in the government’s finances concerning student debt. A mis-calculation in the number of graduates who will earn enough to repay their loans has meant that, should the number pass the 48% mark (which appears likely - it is currently at 45%, having already been raised from an initial figure of 28%) the government would have been better off keeping to the £3,000 a year tuition fees regime. Little comfort to those students subject to the £9,000 a year rate of fees, but there is another group of people who view students with access to university loans on any terms as the lucky ones: those with discretionary leave to remain ("DLR").

Until September 2012, persons with DLR fell within the definition of an "eligible student" for the purposes of eligibility for student support, under paragraph 5 Schedule 1 of the Education (Student Support) Regulations 2009. In simple terms this meant that they had access to student loans.

By an amendment introduced by the Education (Student Support) (Amendment) Regulations 2011, those with DLR were removed from the definition of "eligible student". So, since September 2012, those with DLR have not been able to access any form of student finance.

What is discretionary leave to remain?

Under the old UKBA (as it then was) 2009 Discretionary Leave policy, DLR was awarded outside of the immigration rules, for a period 3 years at a time but sometimes for shorter periods. Once a person had completed 6 years of continuous DLR they would be entitled to apply for indefinite leave to remain (ILR), and therefore the right to permanent settlement, with the enjoyment of the same rights as any other British subject.

DLR is often awarded (though not exclusively so) to unaccompanied asylum seeking children. It is also awarded to victims of trafficking. The case of SM and others v Secretary of State for the Home Department [2013] WLR (D) 169 challenged the lawfulness of the Secretary of State’s 2009 policy on DLR on the basis that it failed to comply with section 55 of the Borders, Citizenship and Immigration Act 2009. In that case the Secretary of State had granted DLR to children following an application for ILR. The claimants challenged that decision.

Section 55 provides:

“55 (1) The Secretary of State must make arrangements for ensuring that-
(a)    the functions mentioned in subsection (2) are discharged having regard to the need to safeguard and promote the welfare of children who are in the United Kingdom, …
(2) the functions referred to in subsection 91) are-
(a) any function of the Secretary of State in relation to immigration, asylum or nationality…
(3) Any person exercising any of those functions must, in exercising the function, have regard to any guidance given to the person by the Secretary of State for the purpose of subsection (1)."

In SM v SSHD, the court found the 2009 policy to be unlawful, finding :

“It effectively precludes case specific consideration of the welfare of the child concerned in making the discretionary decision in whether to grant limited DL or ILR…The policy and instruction fail to give proper effect to the statutory duty under s55”. 

The court in SM v SSHD did not consider the new policy on DLR.

The new policy

The government’s new policy2 on discretionary leave to remain, whilst making reference to s55 and the need to consider the welfare of the child, nevertheless decreases the maximum period of grant of DLR to 2.5 years (instead of 3) and requires an applicant3 to have completed a total of 10 years, or four successive periods of DLR before being eligible for ILR. So in effect, a child awarded DLR at the age of say 16 will have to wait until he/she is 26 before an application for ILR can be made. And therefore wait until they are at least 26 before they are eligible for student finance.

So an aspiring 18 year old awarded DLR at age 16, with good A levels and a university place must be prepared to forgo higher education for potentially 8 or 9 years or find the cash to fund fees of £9,000 a year up front (as is required by all universities) plus living expenses. An unfair and unrealistic choice. Leaving aside the wider philosophical question as to why we as a country would allow people to stay here lawfully but prevent them from gaining accessing to qualifications (which would offer them the chance to acquire better paid jobs), such a situation is, in the author’s view, legally unsound.

Legal options

There are three potential bases of challenge for anyone with DLR who wishes to attend university:

Firstly, if the child was in care then they can seek funding for university tuition fees from their statutory parent (i.e. the local authority) as a former relevant child under s23C of the Children Act. The Court of Appeal confirmed the decision of the Administrative Court in the case of Kebede v Newcastle City Council [2013] EWCA 960 Civ4 that university tuition fees are "expenses connected with his education" as defined by section 24B(2) Children Act 1989, and that the local authority therefore had a duty (as opposed to a discretion) to assist. The Court of Appeal also rejected the local authority’s argument that it was entitled to take its own resources (or lack thereof) into account in deciding whether a former relevant child's "educational or training needs" required the assistance in question.

Secondly, if you are not a care leaver with support from your local authority, one could argue that the change to the Student Support Regulations constitutes an absolute barrier to education, contrary to Article 2 Protocol 1 ECHR and/or discrimination in relation to access to education, contrary to Article 14 ECHR. Such a challenge was made in the case of Kebede v Secretary of State for Business Innovation and Skills [2013] EWHC 2396. Whilst the substantive claim was unsuccessful5, Mr Justice Burnett did not accept the Secretary of State’s argument that he was bound by the decision of the Court of Appeal in R (Douglas) v North Tyneside Metropolitan District Council [2003] EWCA Civ 1847 [2004] ELR 117 to hold that funding arrangements for students fell outside the ambit of A2 P1. He held that:

“Nobody can have access to university education unless funding is found to discharge the fees. State support for the discharge of fees will be, for a very large number of people, the only practical way of paying them.  It is therefore an important feature in providing practical and effective access to university education.  For this reason I do not accept that the current arrangements relating to funding are too remote from the right guaranteed by A2 P1 to fall outside its ambit and therefore to be considered by reference to Article 14". (paragraph 33).

It is arguable that the longer 10 year policy makes any justification argument that much more difficult for the government. How likely is it that delaying the grant of a student loan to persons with DLR would actually meet the government objective of saving money? And what impact does such a policy have on pluralism and society's interest in integrating minorities? How can one balance the impact of a delay in becoming educated on the personal development, integration and social and economic well-being of those with DLR who cannot attend university against any potential costs saving which may arise from the blanket exclusion of all those with DLR from eligibility for a student loan?

Permission has been granted in another case6 by a young person with DLR who is not a care leaver (and therefore does not have a potential source of support from her local authority) but equally does not have the means to pay for her tuition fees. That case is due to be heard in July.

Thirdly, the current policy on DLR is also subject to challenge on a case-by-case basis. The shorter grants of DLR coupled with the longer (10 year) requirement before an application of ILR can be made, can result in unfair decisions with far reaching consequences for the individuals concerned7.

Possible reform?

A simple solution would be for the government to amend the current Student Support Regulations to allow for an exceptions mechanism for certain groups of people i.e. care leavers, and others who are likely to obtain ILR. This would remove the current burden placed upon local authorities and place all responsibility for student finance firmly where it belongs: central government.

Conclusion

It is not just the increased tuition fees regime that the government has got wrong. Its policy on DLR and access to student finance has resulted in the absurd situation where on the one hand the government is allowing people to remain here lawfully for up to 10 years before they can apply for ILR, but at the same time effectively barring access to university during that time. Absent a change to the current regulations, those with DLR who find themselves in such a position will have no choice but to seek redress through the courts.

1. http://www.theguardian.com/education/2014/mar/21/student-fees-policy-costing-more
2. https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/257381/discretionaryleave.pdf
3. To those awarded DLR after July 2012
4. For further information see http://www.hardwicke.co.uk/insights/case-reports/r-on-the-application-of-yonas-kebede-and-abiy-kebede-v-newcastle-city-council
5. Permission to appeal was granted by Mr Justice Burnett.
6. Tigere v Secretary of State for Business, Innovation and Skills C0/7850/2013
7. Permission has been granted in a case challenging an award of 30 months leave on 16 March 2014