Tigere, R (on the application of) v Secretary of State for Business, Innovation and Skills

Factual and Procedural Background

The Appellant, a Zambian national, arrived in The United Kingdom in 2001 at the age of six with her parents, lawfully as dependants of her father’s student visa. After her father’s departure in 2003, the remaining family members overstayed. The Appellant was educated entirely in The United Kingdom, achieved strong academic results and received offers from several universities. She was, however, refused a government-backed student loan because she did not satisfy two eligibility criteria found in the Education (Student Support) Regulations 2011: (i) three years’ lawful ordinary residence in the UK and (ii) “settled” status (i.e., indefinite leave to remain). Without the loan, university attendance was financially impossible.

Judicial review proceedings began in 2013. In the High Court Judge Judge Hayden held that the settlement criterion violated the Appellant’s Convention rights but that the lawful-residence criterion did not. Both parties appealed. The Court of Appeal (majority) reversed the High Court on settlement and upheld lawful residence. The Appellant obtained permission to appeal to the Supreme Court, where a majority (Judge Judge Hale and Judge Judge Kerr) now restores the High Court’s approach in part.

Legal Issues Presented

1. Whether the requirement that an applicant be “settled” in the United Kingdom (i.e., possess indefinite leave to remain) in order to obtain a student loan breaches the Appellant’s rights under Article 2 of Protocol 1 (“A2P1”) and Article 14 of the European Convention on Human Rights.
2. Whether the requirement of three years’ lawful ordinary residence similarly breaches those Convention rights.
3. What remedy, if any, should be granted when a breach is established.

Arguments of the Parties

Appellant's Arguments

• The settlement and lawful-residence criteria amount to unjustified discrimination on the ground of immigration status, contrary to Article 14 read with A2P1.
• Young people like the Appellant are de facto integrated into UK society, cannot realistically be removed, and are as likely as “settled” students to graduate, work and repay loans.
• Less intrusive alternatives—e.g., a long-residence test aligned with Immigration Rule 276ADE—could meet the government’s objectives without excluding deserving students.

Defendant's Arguments

• The government may target finite resources at those “more deserving”—i.e., students with an unrestricted right to remain—because they are likelier to stay, contribute economically and repay.
• Bright-line rules based on immigration status ensure clarity, administrative workability and low processing costs; individualised assessments would be impractical and costly.
• The lawful-residence test prevents applicants benefiting from their own or their parents’ unlawful conduct.

Table of Precedents Cited

Court's Reasoning and Analysis

Majority (Judge Judge Hale, joined by Judge Judge Kerr; Judge Judge Hughes concurring in the result with reservations)

• Applied the four-stage proportionality test: legitimate aim, rational connection, less intrusive alternatives, fair balance.
• Accepted that targeting funds at students likely to remain and repay is a legitimate aim, but held the settlement criterion is not rationally connected because students like the Appellant are equally likely to stay, contribute and repay.
• Found alternative bright-line rules (e.g., long-residence or age-based tests) could achieve aims without excluding the Appellant; administrative convenience alone could not outweigh severe personal and social harm caused by delay in university entry.
• Concluded the settlement rule strikes an unfair balance: it imposes years-long, potentially life-altering delay on a small, well-integrated group for marginal administrative gain.
• Conversely, upheld the lawful-residence criterion. Insisting on three years’ lawful presence prevents individuals benefiting from illegality and would be burdensome to relax across all categories.
• Remedy: a declaration that applying the settlement rule to the Appellant breaches Article 14 with A2P1; the Defendant must craft a Convention-compliant criterion.

Concurring Opinion (Judge Judge Hughes)

• Agrees the settlement rule unlawfully discriminates against the Appellant’s cohort but emphasises that any replacement could still be an inflexible rule; no obligation to introduce case-by-case discretion.
• Supports long-residence bright-line alternatives and rejects reading a general “exceptional circumstances” clause into the Regulations.

Dissenting Opinion (Judge Judge Sumption and Judge Judge Reed)

• Apply the “manifestly without reasonable foundation” test to socio-economic policy. Hold that both criteria fall well within the wide margin accorded to government.
• Stress legitimacy of allocating finite subsidies using clear immigration-status rules and caution against courts substituting policy judgments for Parliament and the executive.
• Argue any line will create hard cases; the present rules are administratively efficient, predictable and therefore proportionate.

Holding and Implications

Holding: The Supreme Court (majority) declares that applying the settlement criterion to the Appellant violates Article 14 taken with A2P1. The lawful-residence requirement is upheld.

Implications: The Appellant is now entitled to a student loan and home-student fees. The Defendant must reconsider and revise the Regulations to adopt a criterion that accommodates long-resident students without indefinite leave to remain. While the judgment affects only England’s loan scheme, it signals that rigid immigration-based exclusions in educational funding face heightened scrutiny under the Convention; however, it does not mandate individualised assessments or overturn the principle of bright-line rules.