Petition of Leo Huisman for Judicial Review

Factual and Procedural Background

The Plaintiff, a student at Company B (the University of the Highlands and Islands), sought judicial review of a decision by the university to charge him higher tuition fees under the Education (Fees) (Scotland) Regulations 2011. The Plaintiff did not meet the ordinary residence requirements for lower fees and was classified as an international student. Due to administrative errors, he initially paid lower fees but was later required to pay the higher rate retrospectively. The Plaintiff challenged the fee decision on grounds of alleged discrimination under Article 14 of the European Convention on Human Rights (ECHR), with the Scottish Ministers appearing as an interested party. The case proceeded before Judge Lake in the Outer House of the Court of Session.

Legal Issues Presented

1. Whether the Plaintiff, who does not meet the ordinary residence criteria and is not classified as an excepted student under the regulations, is being unlawfully discriminated against in breach of Article 14 of the ECHR.
2. Whether the Plaintiff is in an analogous situation to excepted students entitled to lower fees.
3. Whether any differential treatment can be objectively justified under the applicable legal framework.
4. Whether the 2011 Regulations can be read and applied in a manner compatible with the Plaintiff’s Convention rights under section 3 of the Human Rights Act 1998.

Arguments of the Parties

Appellant's Arguments

• The Plaintiff argued that the category of excepted students under the regulations is based on humanitarian protection, covering those unable to return to their country of origin due to no fault of their own.
• He claimed to be in a similar position, having fled his country (South Africa) due to threats against his family, but was excluded solely because of his British citizenship.
• The Plaintiff contended that this exclusion constitutes discrimination on the basis of nationality, violating Article 14 ECHR.
• He submitted that the regulations should be read compatibly with the Convention by expanding the definition of excepted student to include persons in his position who have British nationality but qualify for humanitarian protection.
• The Plaintiff noted that the 2022 Regulations introduced new exceptions for certain UK nationals in Ukraine, indicating recognition of a gap in the 2011 Regulations.
• He emphasized that his challenge was not to the legality of the regulations per se but to their discriminatory application in his case.

Respondent and Interested Party's Arguments

• The University submitted that the regulations reflect a considered policy decision regarding allocation of finite financial resources to students ordinarily resident in Scotland.
• They argued it is not appropriate for the court to effectively amend regulations approved by Parliament.
• The Scottish Ministers emphasized that education rights under Article 2 of the First Protocol are not absolute and allow for state regulation within a margin of appreciation.
• The policy aims to protect opportunities for students with a genuine connection to Scotland and to avoid overwhelming Scottish institutions with applicants from elsewhere in the UK.
• The Ministers contended the differential treatment is rational, reasonable, and proportionate in pursuit of legitimate aims.
• They further argued that the need to address UK nationals in Ukraine through separate 2022 Regulations demonstrates that the 2011 Regulations cannot be read in the expanded way the Plaintiff proposed.

Table of Precedents Cited

Court's Reasoning and Analysis

The court began by examining the categories of excepted students under the 2011 Regulations, which primarily cover individuals granted various forms of humanitarian protection and leave to remain in the United Kingdom. The Plaintiff did not qualify as an excepted student because he holds British citizenship and thus has an unconditional right to reside in the UK, unlike the foreign nationals covered by the exceptions who require leave to remain.

The court accepted that the Plaintiff was treated differently from excepted students but found that he was not in an analogous situation to them. The key distinguishing factor was the Plaintiff’s unconditional right to reside anywhere in the UK, which is a significant material consideration in allocating limited educational funding.

Applying the four-part test from R (Stott), the court found the first two elements satisfied but concluded the Plaintiff was not in an analogous situation to excepted students. Consequently, the differential treatment was justifiable as part of a legitimate policy aimed at protecting Scottish educational resources and maintaining a connection between funding and ordinary residence in Scotland.

The court also considered whether the regulations could be read compatibly with the Plaintiff’s Convention rights by "reading in" additional words to extend the excepted student category. While acknowledging the interpretative powers under section 3 of the Human Rights Act 1998 and the principles from Ghaidan v Godin-Mendoza, the court found such a reading would alter the fundamental substance of the legislation. This is a matter for Parliament, not the courts.

In sum, the court concluded there was no breach of Article 14 and no basis to reinterpret the regulations as the Plaintiff requested.

Holding and Implications

The court REFUSED THE PETITION, upholding the university’s decision to charge the Plaintiff higher tuition fees.

The ruling confirms the validity of the 2011 Regulations’ approach to student fee status and affirms the State’s margin of appreciation in allocating educational funding based on ordinary residence and immigration status. No new precedent was established beyond the application of existing principles regarding discrimination under Article 14 and statutory interpretation under the Human Rights Act 1998. The decision leaves intact the policy distinction between British citizens with unconditional residence rights and foreign nationals granted humanitarian protection for the purpose of student fee exceptions.