The “Huisman Principle” – Humanitarian UK Nationals with an Automatic Right of Abode Are Not “Excepted Students” for Scottish Tuition-Fee Purposes

1. Introduction

In Petition of Leo Huisman for Judicial Review ([2025] CSOH 53) Lord Lake of the Outer House, Court of Session, was asked to decide whether a UK citizen who fled South Africa for humanitarian reasons should enjoy the discounted “home” tuition-fee status granted to specific “excepted students” under the Education (Fees) (Scotland) Regulations 2011. The petitioner, Mr Leo Bruce Huisman, argued that denying him the lower rate was discriminatory under Article 14 of the European Convention on Human Rights (ECHR) read with Article 2 of the First Protocol (A2P1). The respondents were the University of the Highlands and Islands (UHI), with the Scottish Ministers appearing as an interested party.

The case raised classic human-rights questions about differential treatment, justification, and the court’s power under s 3 of the Human Rights Act 1998 (HRA) to “read in” words to primary or subordinate legislation. Lord Lake’s refusal of the petition crystallises a new working rule – the “Huisman Principle” – that UK nationals automatically entitled to live in Scotland do not form an analogous class to non-nationals who require formal humanitarian permission to stay, and therefore cannot invoke Article 14 to be re-categorised as “excepted students”.

2. Summary of the Judgment

The Court accepted that (i) the case fell within the ambit of A2P1 and (ii) nationality constituted a protected “status” for Article 14 purposes.
However, the petitioner failed on the third Stott limb: he was not in an analogous situation to the enumerated “excepted students”, because all those categories concern persons who lack an automatic right to reside in the UK.
Even if analogy existed, the difference in treatment pursued a legitimate aim (resource-allocation to Scotland-connected students) and was proportionate, given the State’s margin of appreciation in higher-education policy.
Because no Article 14 breach was established, the interpretive duty under HRA s 3 did not arise. In any event, reading words into the 2011 Regulations – as the petitioner proposed – would impermissibly recast the substance of the scheme and trespass on the legislature’s domain.
The petition was therefore refused; Mr Huisman must pay international fees, including the arrears generated by earlier administrative error.

3. Analysis

3.1 Precedents Cited

R (Stott) v Secretary of State for Justice [2018] UKSC 59, [2020] AC 51
Lady Black’s four-stage test for Article 14 was the analytical scaffold. Lord Lake adopted it verbatim to structure the inquiry.
R (Carson) v Secretary of State for Work and Pensions [2006] 1 AC 173
Quoted for Lord Nicholls’ observation that, once status and ambit are accepted, the “essential question” becomes whether the difference “can withstand scrutiny.” The quotation illustrates the fluidity between the “analogous situation” and “justification” stages.
Belgian Linguistics Case (No 2) (1968) 1 EHRR 252
Groundwork for recognising that educational rights under A2P1 are subject to State regulation.
Sahin v Turkey (2007) 44 EHRR 5
Cited to emphasise the wide margin of appreciation afforded to States in education – especially higher education – enhancing deference to legislative policy choices.
Ghaidan v Godin-Mendoza [2004] 2 AC 557
Leading authority on the scope and limits of the HRA s 3 interpretive obligation. Lord Lake relied on Lord Rodger’s warning against “changing the substance” of legislation.

3.2 Legal Reasoning

(a) Identifying the Comparator Group

Mr Huisman portrayed himself as part of the same “humanitarian cohort” as refugees, asylum-seekers’ families, Syrian VPRS entrants, Afghan LES beneficiaries, and other categories in Schedule 1 to the 2011 Regulations. Lord Lake accepted that, factually, the petitioner fled his former residence under threat, but found a decisive legal difference: he is a British citizen and therefore “has an unconditional right to live anywhere he chooses in the United Kingdom.” None of the statutory excepted groups enjoys that right; each requires explicit leave or humanitarian protection to remain.

(b) Policy Context and Legitimate Aim

The Court credited the Scottish Ministers’ explanation that the fee differential protects finite resources and preserves free or lower-cost education for students likely to retain long-term Scottish connections. Without differentiation, Scottish institutions could be “overwhelmed” by applicants from other parts of the UK diverting resources away from locals. This was held to be a legitimate aim rationally connected to the means adopted.

(c) Proportionality and Margin of Appreciation

Given the generous margin of appreciation in higher-education financing, the Court found the measure proportionate. The automatic right of abode provided the petitioner with a pathway to attain “home” status by simply residing in Scotland for the regulatory period. The distinction therefore was not manifestly without reasonable foundation.

(d) Section 3 HRA and “Reading In”

The petitioner invited the Court to insert italicised words into paragraph 4 of Schedule 1. Lord Lake considered such judicial surgery “inconsistent with Ghaidan limits,” because it would reconfigure the financial-allocation scheme, a quintessentially legislative decision. Should incompatibility have been found, a declaration of incompatibility—rather than a textual rewrite—would have been the appropriate remedy.

3.3 Impact of the Decision

Clarifies Comparator Analysis: The ruling firmly distinguishes UK nationals with an automatic right of residence from non-nationals whose presence depends on humanitarian leave. Future litigants must overcome this threshold before embarking on proportionality arguments.
Affirms Legislative Primacy in Fee-Allocation Schemes: Courts will be reluctant to “read in” new excepted categories that would redirect public subsidies; such matters are for Parliament or, in Scotland, the Scottish Ministers with Parliamentary approval.
Guidance for Universities: Institutions can rely on the classification in force at the material time, even where administrative errors initially misclassified a student.
Strategic Signal to Government: If humanitarian UK nationals warrant relief, primary or secondary legislation—not litigation—is the proper vehicle, as illustrated by the explicit addition of Ukrainian-scheme UK nationals in the 2022 Regulations.

4. Complex Concepts Simplified

Article 14 (ECHR): Prohibits discriminatory treatment in the enjoyment of Convention rights. Four-stage test: (1) within ambit; (2) differential treatment on a protected ground; (3) comparable situations; (4) lack of objective justification.
Article 2 of the First Protocol (A2P1): Guarantees the right to education, but not free or subsidised education; States may regulate access.
Analogous Situation: A claimant must show they are relevantly similar to the favoured group; obvious differences may defeat the claim before proportionality is assessed.
Margin of Appreciation: Latitude granted by Strasbourg to national authorities, especially wide in sensitive areas like education financing.
Section 3 HRA “Reading In”: Court’s duty to interpret legislation compatibly with Convention rights “so far as possible”. Cannot be used to rewrite the essence or policy of the statute.

5. Conclusion

Lord Lake’s decision establishes the “Huisman Principle”: the presence or absence of an automatic right of abode is a crucial dividing line when assessing tuition-fee discrimination claims under Article 14. UK nationals who can freely choose to settle in Scotland for three years do not occupy an analogous legal position to humanitarian non-nationals lacking that right, and therefore cannot compel their inclusion within the “excepted student” categories via judicial interpretation.

The ruling reinforces judicial restraint in fiscal-policy arenas and channels reform efforts toward democratic law-making rather than courtroom litigation. Unless and until the Scottish Government extends the exceptions by regulation—as it did for Ukrainian-scheme UK nationals—students in Mr Huisman’s position must either satisfy the ordinary-residence test or pay international fees.