I posted last month about the High Court’s decision in R (Tigere) v Secretary of State for Business Innovation and Skills and The Student Loan Company  EWHC 2452, where Mr Justice Hayden found that the policy for eligibility for student loans was unlawful.
The Court of Appeal has overturned that decision. The full text is available on Lawtel.
Lord Justice Laws (with whom LJ Floyd agreed) concluded that the Secretary of State was justified in promulgating a bright line rule. Any bright line rule must reflect that the Secretary of State was obliged to accord a high priority to opening higher education to those who may deploy their talents here and he had a very broad margin of discretion. Lord Justice Laws then drew an interesting distinction between the roles and processes for setting immigration rules for settlement and education rules for student funding. He concluded that the Secretary of State for BIS was entitled to adopt a criterion dependent on settlement and he was not required to modify it by reference to the fact that the Home Office might alter the Rules by which settlement was achieved from time to time. Further, the Secretary of State for BIS was entitled to rely on the legality, the propriety in public law terms, of the Immigration Rules relating to settled status.
Lord Justice Vos expressed his reasons for allowing the appeal slightly differently. Further to what LJ Laws found, he concluded that the Secretary of State for BIS must ensure that the student funding regulations operated properly in the context of immigration policy. Whilst he could not be expected to make frequent adjustments to the regulations as the Immigration Rules changed, he had to review the situation periodically to ensure that, for example, the requirement of “settlement” remained appropriate in the light of the way that the immigration processes operated. He found that the eligibility requirements were lawful (only) because there had at all relevant times been a discretion to grant indefinite leave to remain to children on section 55 grounds (i.e. the duty to have regard to the need to safeguard and promote the welfare of children in the UK).
Therefore, whilst expressing sympathy for her situation, the Court of Appeal found that the Secretary of State was entitled to have a bright line rule that excluded Miss Tigere from the student loans scheme on ground of her immigration status.
Rachel Kamm, 11KBW