Andy Sirel

However, the Scottish government’s Students’ Allowances (Scotland) Regulations 2007 have been found to violate Article 2 Protocol 1, and Article 14 ECHR. The Outer House of the Court of Session found that they prevented a category of migrant young people, living lawfully in Scotland since their childhood, from accessing college or university alongside their peers. The Scottish government must now take urgent steps to change the law.

The case was brought by a young straight-A student, Ola Jasim, who was denied student support because of her immigration status. She has been lawfully living and studying in Scotland since she was 11 years old, having attended school in Scotland since Primary 7. Excelling in academia, she has long dreamed of becoming a doctor. She wants to make a difference in people’s lives, to improve the quality of living and reduce any suffering.

Upon leaving school, she was offered a place to study medicine at a Scottish university. The university was pragmatic and recognised that she was a ‘home fees’ student. However, the Scottish rules, administered by the Student Awards Agency for Scotland (SAAS), were clear she could not qualify for student support. She and her family attempted to self-fund for the first year and this caused significant financial pressure. She then applied for SAAS funding for her second year and was refused.

The current regulations established that if you are under 18 on the first day of your university course you must have lived in the UK for seven years to be able to access student support. If you are aged between 18 and 25, you need to have lived in the UK for either half your life or 20 years. Therefore, a 17 year old needs seven years residence, but an 18 year old needs nine years residence; this is a cliff edge.

Our client was just 58 days short of the length of time required and the Scottish government refused any concession to consider those who miss out on the long residency test by such a small timeframe. Our legal team decided to take this case to court as there was a clear “issue of fairness and human rights at stake.”

The petition was heard by Lord Sandison in the Outer House on 5 August 2022. Lord Sandison, in his Opinion, observed that these rules “fail to strike a fair balance between the impact which they have on those whom they exclude from eligibility for student support despite objective clear connection with Scotland which it is reasonable to suppose will continue, and the likely benefit to the state of adopting a set of rules which, while clear, provide only an approximate means of achieving the objective of the policy which they are intended to implement.” Lord Sandison also highlighted that the impact of the rules on the children and young people in question could result “in a substantial degree of social exclusion and operates as a mode of prevention from them participating in society on an equal footing with others”.

The Scottish government must now propose new rules to Parliament which are compliant with human rights, and we hope they will conduct a public consultation in doing so. In the meantime, we understand that an urgent scheme will be set up in the coming weeks and months to ensure that students affected this academic year, including those that have already been refused, do not fall foul of unfair and discriminatory practices.

Andy Sirel is legal director and partner at JustRight Scotland