Application of settlement criterion is a breach of rights under Article 14 of ECHR read with Article 2 of First Protocol

Supreme Court of United Kingdom– Deciding on whether the lawful residence criterion or settlement criterion breaches the appellant’s right to education under Article 2 of the First Protocol (A2P1) to the European Convention on Human Rights (ECHR) and Article 14 ECHR, the Court by a majority of 3:2 made a declaration that the application of the settlement criterion to the appellant is a breach of her rights under article 14, read with article A2P1, of the Convention. The Court held that the declaration makes it clear that the appellant is entitled to a student loan while leaving it open to the Secretary of State to devise a more carefully tailored criterion which will avoid breaching the Convention rights of present and future applicants.

According to the facts, the appellant, a Zambian national, came to the UK in 2001 at the age of six. Her mother overstayed and the appellant was unlawfully present in the country until 2012. The appellant presently has discretionary leave to remain in the UK. The appellant has received her entire education in the UK and wishes to go to university for further education. Due to her immigration status which makes the appellant ineligible for a student loan, the appellant had been unable to take up the university places offered to her. In the UK, in order to qualify for a loan, student must be resident in England when the academic year begins; have been lawfully ordinarily resident in the United Kingdom for the three years before then; and be settled in the United Kingdom on that day.

Giving reasons, Lady Hale observed that if the loan is not provided students like the appellant may be left in the dilemma as they are allowed access to all the public services including cash welfare benefits, but are denied access to this one benefit of a repayable loan. The Court also noted that if the benefit of loan is denied, it will be a loss to the community as a whole. Regarding the issue of lawful residence, the Court held that the appellant cannot be blamed for this fact because it was the result of the decisions taken by her parents over which she had no control. Lastly, the Court held that “lawful ordinary residence” criterion was compatible with the appellant’s Convention Rights. R v. Secretary of State for Business, Innovation and skills, 2015 UKSC 57, decided on 29.07.2015