British Citizens Returning to Scotland for Safety Are Not “Excepted Students” Comparable to Refugees for Home-Fee Eligibility
1. Introduction
Leo Bruce Huisman against University of the Highlands and Islands and another ([2026] CSIH 17, First Division, Inner House) concerns whether a British citizen who moved to Scotland from abroad due to threats to safety can claim the benefit of the “humanitarian” fee exceptions that apply to refugees and certain persons granted leave to remain.
The petitioner (a British and South African citizen) began a Scottish university course in August 2021. He was ordinarily resident in Scotland on the relevant date but could not satisfy the regulations’ three-year “ordinary residence in the UK and Islands” requirement. He argued he should be treated as analogous to an “excepted student” (refugees / persons granted leave on humanitarian grounds) because he fled South Africa for safety, but could not apply for asylum due to his British citizenship.
The respondent university sought to charge (and recover) higher “international” fees. The Scottish Ministers participated as interested parties given the policy architecture of tuition-fee subsidy and the regulatory framework.
The core issues were: (i) whether Article 14 ECHR (in conjunction with Article 2 of Protocol 1) was engaged due to allegedly discriminatory treatment; (ii) whether the petitioner was in an “analogous situation” to refugees/other excepted students; and (iii) if incompatibility existed, whether section 3 of the Human Rights Act 1998 could “read in” an additional excepted category for British citizens who would hypothetically qualify for protection but for nationality.
2. Summary of the Judgment
The Inner House refused the reclaiming motion and upheld the Lord Ordinary’s refusal of judicial review.
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No analogous comparator: The petitioner was not in an analogous position to “excepted students” because, unlike them, he did not need leave or permission to enter/remain; he had an absolute right of residence by virtue of British citizenship.
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Objective justification (in any event): Even if a difference in treatment were established, it was objectively justified. Defining eligibility for subsidised fees by residence-based connection to Scotland/UK is a policy matter within a wide margin of appreciation.
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Section 3 HRA limit: The proposed “reading in” would fundamentally change the scheme by expanding it from (relevantly) non-British humanitarian categories to British citizens; that would cross the line from interpretation to amendment and would not “go with the grain of the legislation”.
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Administrability: The court also stressed the unworkability of requiring universities to decide whether a British citizen would have qualified for refugee/humanitarian status “but for” citizenship.
3. Analysis
3.1 Precedents Cited
R (Stott) v Justice Secretary [2018] UKSC 59; [2020] AC 51
This provided the structured approach to Article 14: (1) ambit of a Convention right; (2) status ground; (3) analogous situation; (4) lack of objective justification.
The Inner House used Stott to frame the decisive question as whether the petitioner could identify a valid comparator group in an analogous position. It held he could not: the legal and practical significance of requiring immigration permission is a distinguishing feature of the excepted categories.
Quoted via Stott, Carson supported the idea that “analogous situation” and “justification” may merge in practice, and that sometimes obvious relevant differences prevent a comparator analysis from getting off the ground. The court treated citizenship-based right of residence as that “obvious, relevant difference”.
Belgian Linguistic Case (No 2) (1979-80) 1 EHRR 252
Cited for the proposition that the right to education inherently calls for regulation by the State, and that education policy attracts a margin of appreciation. The court deployed it to underline institutional deference where rules allocate educational subsidy and regulate access by reference to connection/residence.
Tarantino v Italy (2013) 57 EHRR 26
Used to emphasise that Article 2 of the First Protocol is not absolute; restrictions must pursue a legitimate aim and be proportionate, with a wide margin of appreciation in education policy. This fed into the court’s view that residence-based eligibility criteria for subsidised fees are a classic regulatory choice.
Ponomaryov v Bulgaria (5335/05) (2014) 59 EHRR 20
Relied on by the petitioner for the principle that once a state funds education, it must do so without discrimination. The Inner House did not reject that proposition in the abstract; rather, it held there was no relevant discrimination because the petitioner was not comparable to the humanitarian-immigration categories.
Invoked by the petitioner to support the view that residence requirements can cause acute hardship for young people and must be justified. The Inner House distinguished the context: the petitioner’s position flowed from the general residence-connection rule applicable to British citizens returning from abroad, not from a denial of an immigration-based humanitarian exception.
Used (mainly by the respondent/Scottish Ministers) as the three-stage framework where section 3 HRA is invoked: (i) ordinary meaning; (ii) whether that meaning produces incompatibility; (iii) if so, whether section 3 can cure it. The court effectively stopped at (ii) because it found no Article 14 violation; it nevertheless addressed (iii) and rejected the proposed interpretive “insertion”.
Central to the section 3 analysis. The court adopted the “go with the grain of the legislation” boundary (attributed to Lord Rodger of Earlsferry) and held that rewriting the “excepted student” provision to include British citizens who would hypothetically qualify for protection would be a radical change to the scheme and therefore impermissible as interpretation.
Fanning v Secretary of State for Work and Pensions [2025] CSOH 50; 2025 SLT 787
Cited for judicial restraint in areas involving allocation of public resources. The Inner House echoed that theme: where subsidy criteria involve policy judgment and spending choices, courts should be slow to substitute their own criteria, especially by expanding beneficiary classes through interpretation.
3.2 Legal Reasoning
(a) The statutory scheme and its logic
The Education (Fees) (Scotland) Regulations 2011 operate a basic distinction:
students with a “relevant connection” to Scotland (including ordinary residence in Scotland on the relevant date and three years’ ordinary residence in the UK and Islands)
are protected from higher fees; those without such connection may lawfully be charged higher fees (universities have discretion to charge, but cannot charge higher fees where the protection applies).
Schedule 1 creates “excepted student” categories. Their unifying feature, as the court saw it, is not merely “humanitarian displacement”, but the fact that they are categories of people whose residence in the UK depends on immigration permission/leave (or analogous legal permission schemes), with strict post-permission residence conditions.
(b) Article 14: why the comparator failed
The court accepted that the complaint was situated within the ambit of the right to education (A2P1), but the claim failed at the “analogous situation” stage.
The decisive differentiator was the petitioner’s absolute right to live in the UK as a British citizen.
The court treated that right as foundational to the design of the exceptions: the exceptions target those who (i) must obtain permission to be in the UK and (ii) are then held to residence conditions from the date of that permission.
The court also reframed the correct comparator: the petitioner was analogous to “any other British citizen who does not have an established residence in the United Kingdom”, regardless of why they returned.
On that framing, differential treatment vis-à-vis refugees/leave-to-remain categories is not discrimination between likes, but differentiation between legally distinct groups.
(c) Objective justification and margin of appreciation
Even if Article 14 had been engaged, the court held the scheme objectively justified.
The legitimate aim was to allocate subsidised tuition by “sufficient connection” to Scotland/UK, a policy choice in an area where the State enjoys a wide margin of appreciation (education funding and regulation).
The court stressed that setting the qualifying connection (including the three-year ordinary residence rule and the tight residence rules for excepted students) is a matter of political judgement, not judicial redesign.
(d) Section 3 HRA: the limit of “interpretation”
The petitioner’s proposed remedy—adding words to paragraph 4 of Schedule 1 to cover those who would qualify for protection “but for” British nationality—was rejected for two principal reasons:
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Constitutional/structural: It would fundamentally transform the category from (relevantly) non-British humanitarian-immigration statuses to a new British-citizen class, changing the policy choice about who receives subsidy.
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Practical/administrative: It would force universities to answer a speculative counterfactual—whether a British citizen “would have” been granted refugee/humanitarian status if not British—creating uncertainty and inconsistent decision-making.
3.3 Impact
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Clear boundary for “excepted student” analogies: Humanitarian motive for relocation does not, by itself, place a British citizen in an analogous position to refugees or persons granted leave to remain.
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Residence-connection rules reinforced: British citizens returning from abroad remain subject to general residence-based connection requirements for home-fee eligibility unless and until regulations expressly create a tailored exception (as later occurred for certain cohorts under the 2022 Regulations).
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Section 3 restraint in subsidy schemes: Courts will be reluctant to use section 3 HRA to expand beneficiary classes in ways that alter public spending allocation and require new evaluative machinery.
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Administrability as a legal constraint: The judgment foregrounds “workability” for front-line decision-makers (admissions/fees officers) as a reason not to imply counterfactual eligibility tests.
4. Complex Concepts Simplified
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“Ordinarily resident”: A factual concept indicating where someone normally lives as part of the regular order of their life (not merely temporarily).
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“Relevant connection” (2011 Regulations): A set of residence criteria (including three years’ ordinary residence in the UK and Islands) that qualifies a student for protection from higher fees.
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“Excepted student”: A student who does not meet the standard connection test but is nevertheless protected from higher fees because they fall within a defined category (e.g., refugee; granted leave to remain after an asylum claim; other specified protection/leave routes) and meet associated residence conditions.
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Article 2 of the First Protocol (A2P1): Protects access to education but permits regulation and limitations, provided they pursue a legitimate aim and are proportionate.
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Article 14: Not a freestanding right; it prohibits discrimination in the enjoyment of other Convention rights. A claimant must show (among other elements) that they are treated differently from someone in an analogous position.
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“Analogous situation”: The comparator must be “like” the claimant in relevant respects. A key message of this case is that the legal basis of residence (absolute right vs immigration permission) is a “relevant respect”.
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“Margin of appreciation” / discretion in social policy: Courts allow governments leeway in sensitive policy areas (like education funding), intervening only when lines drawn are not reasonably justifiable.
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Section 3 Human Rights Act 1998: Requires legislation to be read compatibly with Convention rights “so far as it is possible”. It does not permit courts to rewrite legislation in a way that contradicts its fundamental design (“go with the grain”).
5. Conclusion
[2026] CSIH 17 crystallises a boundary in Scottish tuition-fee eligibility disputes: a British citizen who returns to Scotland for safety reasons is not thereby comparable to refugees or other “excepted students” whose presence depends on immigration leave. The decisive legal distinction is the citizen’s unconditional right to reside in the UK.
The court further confirms that section 3 of the Human Rights Act 1998 cannot be used to engineer new, counterfactual-based beneficiary classes within a public subsidy scheme—particularly where doing so would alter the scheme’s core policy choices and create unadministrable decision-making burdens.