Lord Ordinary declares parts of student support regulations unlawful after petition by nearly settled Iraqi student

About this case:

• Citation:
  [2022] CSOH 64
• Judgment:
  External link
• Court:
  Court of Session Outer House
• Judge:
  Lord Sandison

Ola Jasim, who was born in Iraq in September 2002 and came to the UK with her parents in 2013, was short of the required period of residence in the UK by just 58 days on the relevant date for the purpose of her application. While the 2007 Regulations were replaced by the Student Support (Scotland) Regulations 2022 following the commencement of the petition, it was a matter of agreement that the new regulations were not materially different from those they replaced.

The petition was heard by Lord Sandison in the Outer House of the Court of Session. Haddow, advocate, appeared for the petitioner, and Irvine, advocate, for the Scottish Ministers.

Settled status

The petitioner attended secondary school in Scotland after arriving in the UK shortly after her eleventh birthday. She applied for university when she was aged 17 and was offered a place to study for a degree in medicine at a Scottish university on a course starting October 2020. However, she did not apply for a SAAS grant at that time in the mistaken belief that she required a National Insurance number in order to do so.

After finishing her first year with considerable financial support from her parents, the petitioner applied for student support. The application was refused because on the first day of the first academic year of her course, in this case 1 August 2020, she did not have “settled” status as she had not lived in the UK for the required period of settlement for under-18s.

It was noted that the petitioner had no realistic means of obtaining state support for her current course and, were she to reapply, she would be subject to a longer settlement period as she would be aged over 18. Even were she to obtain ILR in September 2023, as she expected to do, she would be unable to commence a new course until the autumn of 2024, resulting in considerable disruption to her education and career prospects.

In these circumstances, the petitioner considered that she was being treated unfairly in comparison with her schoolmates, and that the long residence criteria in the Regulations were incompatible with the ECHR and ultra vires as they unlawfully discriminated against her on the basis of age, immigration status, and length of residence. Counsel for the petitioner added that the “cliff edge” increase in the length of residence between under 18s and over 18s had no rational link to the objective of restricting student support to those likely to remain in the UK after their studies.

Objective imperfectly realised

Lord Sandison, in his opinion, observed: “Although the petitioner presented her case on the basis that she had been discriminated against by reference to each of her immigration status, her age and her length of residence in the UK, on analysis it appears that her true complaint is one of unlawful discrimination on the ground of her immigration status, and specifically her lack of settled status, alone.”

He continued: “The position is that the petitioner does not challenge the policy objective underlying the long residence requirements in the 2007 Regulations; she challenges those requirements as a proportionate means of achieving that objective, and that particular issue is not one that can be shown to have received any consideration, or even attention, at either executive or parliamentary levels in the course of the process leading to the introduction of the requirements in question.”

Addressing whether the relevant provisions were proportionate, Lord Sandison said: “The core problem is that long past residence in a country is in itself but a very imprecise proxy for probable future substantial and permanent connection there. The line produced by reference to long residence rules is a crude one. The policy objective underlying the long residence rules is very imperfectly realised by them.”

He went on to add: “The traditional justifications for having a ‘bright line’ or ‘blanket’ rule are practicality and legality. In relation to the first, it may be that in some circumstances there is no realistic half-way house between selecting on the basis of general rules and categories, and doing so on the basis of a case-by-case discretion. However, there is no material before me supportive of the suggestion that, in the present context, that is the position.”

Lord Sandison concluded: “Ultimately, then, the long residence rules in the 2007 Regulations 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.”

It was therefore concluded that the relevant paragraphs of the 2007 Regulations were unlawful in light of Article 14 and Article 2 of Protocol 1 ECHR. At the request of the parties, further procedure in the petition would be discussed at a By Order hearing.