South African university student loses challenge against imposition of higher Scottish tuition fee rate

About this case:

• Citation:
  [2025] CSOH 53
• Judgment:
  External link
• Court:
  Court of Session Outer House
• Judge:
  Lord Lake

Leo Huisman, an optometry student at the University of the Highlands and Islands who had lived in South Africa until 2021, argued that the way that the Education (Fees) (Scotland) Regulations 2011 were applied to him was discriminatory and infringed on Article 14 ECHR. While the 2011 Regulations were superseded in 2022 by a substantially similar set of Regulations, the provisions of the earlier instrument applied to the petitioner’s case.

The petition was considered by Lord Lake in the Outer House. F Whyte, advocate, appeared for the petitioner, P Reid KC for the first respondent, and D Welsh, advocate, for the Scottish Ministers as an interested party.

Concept of protection

The petitioner was born and raised in South Africa and lived there until 2021. However, in that year he and his mother fled the country following threats of retribution against her following her acting as a whistleblower in relation to reporting corruption. This was said to have led to threats being made to her and her family against which the police and authorities were unable to provide effective protection.

As a result of an administrative error, the petitioner only paid the fees charged to Scottish students in his first two years of study. When the respondent discovered the error, it claimed the higher rate of fees from the petitioner for both his third year of study and the difference from the previous years he had already completed. It was common ground that the petitioner did not meet the requirement of ordinary residence in Scotland to pay the Scottish student rate, nor did he fall into any of the categories of excepted student under the Regulations.

It was contended by the petitioner that a number of the defined categories of accepted students had a common core concept of humanitarian protection. He accepted that he could not be considered a refugee as he had British citizenship through his mother. However, he was unable to return to his ordinary country of residence, which permitted comparator groups to pay the lower rate, and thus the way the regulations were applied meant he was treated different solely on the basis of his citizenship.

The petitioner further noted that in the 2022 Regulations now in force, a category of UK nationals who were resident in Ukraine at the start of 2022 and left due to the Russian invasion would also be considered excepted students. This, he submitted, was a recognition of the lacuna in the 2011 Regulations.

For the respondent and interested party it was submitted that the fee cap for Scottish students represented a policy decision with a legitimate aim. The mere fact that it had been thought necessary to address the position of UK nationals in Ukraine in 2022 was an indicator that the earlier Regulations could not be read in the manner the petitioner contended.

A deliberate choice

In his decision, Lord Lake said of the categories of excepted student: “Although the petitioner points to the fact that all these categories relate to persons who have had to flee their country of residence for humanitarian reasons, that is not the only factor which binds the accepted categories. It is important, as was tangentially recognised by the petitioner, that none of the categories has an automatic right to reside in Scotland or the United Kingdom. The various categories concerning foreign nationals all include some proviso for leave or permission having to be given for them to take up residence in the United Kingdom.”

He continued: “The petitioner, on the other hand, has an unconditional right to live anywhere he chooses within the United Kingdom. In considering the allocation of resources to provide grants for students, this is a material consideration. In passing the 2011 Regulations, the Scottish Government exercise a deliberate choice as to who would be the beneficiary of funding for further education. At that time, they were, in part, restricted by the United Kingdom’s membership of the European Union. Nonetheless, even at that time a distinction was drawn between persons with ordinary residence in Scotland and those whose ordinary residence was in the remainder of the United Kingdom.”

Considering the Regulations in light of this, Lord Lake observed: “It is apparent that the petitioner has more in common with the students from the rest of the United Kingdom than he does with foreign nationals with no right to reside in any part of the United Kingdom. He was in a position to qualify for Scottish funding if he chose as he had an unconditional right to reside in Scotland. As that is the basis on which the Scottish Government have determined that funding should be allocated, it cannot be said that the petitioner is in the same category as foreign nationals who have no right to enter into the United Kingdom save for falling into one of the excepted categories.”

He concluded: “It is correct for the petitioner to point out that he is in a position in some respects similar to other classes referred to in the Regulations and it is likely to be true that the number of persons who could bring themselves within the expanded category he desires would be limited. This does not change the fundamental fact that the changes which the petitioner desires would have the effect of altering the class of people to whom government resources are directed. That is a matter particularly suited to decision by the democratically elected government and not the courts.”

The petition was accordingly refused.