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Leo Bruce Huisman against University of the Highlands and Islands and another (Court of Session)
Summary of Opinion
Factual and Procedural Background
The Plaintiff challenged Company A's decision to charge higher tuition fees on the basis that, although born and ordinarily resident in South Africa until February 2021, he had relocated to the United Kingdom in February 2021 with his mother for safety reasons. The Plaintiff holds British citizenship by descent through his mother and South African citizenship by birth. He was offered and began a BSc course with Company A in August 2021.
The Plaintiff and his mother contacted The Agency in May 2021 seeking humanitarian protection or refugee status but were told they could not be registered as asylum seekers or qualify for humanitarian protection because they were British citizens. Company A initially charged the Plaintiff home-fee rates for the first two years due to administrative error; in the third year Company A discovered the error, sought to charge higher fees and to recover underpayments. The Plaintiff completed his course but has not been permitted to graduate and is not eligible for the post-degree enrolment required to practise his profession.
The Plaintiff sought judicial review. The Lord Ordinary refused the petition; the Plaintiff reclaimed (appealed). Company B entered as interested parties. The opinion was delivered by Judge Pentland.
Legal Issues Presented
- Whether the Plaintiff, a British citizen who fled his foreign place of ordinary residence for humanitarian reasons, is analogous to the categories of "excepted student" under the Education (Fees) (Scotland) Regulations 2011 such that he should be treated as exempt from higher fees.
- Whether the differential treatment alleged by the Plaintiff engages Article 2 of Protocol No. 1 and Article 14 ECHR and, if so, whether any difference is objectively justified.
- Whether the Education (Fees) (Scotland) Regulations 2011 can be read compatibly with the Convention under section 3 of the Human Rights Act 1998 to include the Plaintiff within the excepted categories without crossing from interpretation into amendment of the legislation.
Arguments of the Parties
Plaintiff's Arguments
- The Plaintiff argued he was in an analogous position to humanitarian "excepted students" who fled their country and should not be excluded from home-fee treatment merely because he holds British nationality.
- He claimed unlawful interference with his Article 2 Protocol 1 right to education and discrimination contrary to Article 14 ECHR.
- He submitted that the 2011 Regulations should be read compatibly with Convention rights under section 3 of the Human Rights Act 1998 to include persons who would qualify for humanitarian protection but for their British nationality, curing an alleged lacuna.
Company A and Company B's Arguments
- On ordinary construction of the 2011 Regulations, the Plaintiff is not an "excepted student" and therefore may lawfully be charged higher fees.
- The Plaintiff is not in an analogous situation to excepted students because he has an absolute legal right to live in the United Kingdom by virtue of his British citizenship; excepted categories concern foreign nationals who require leave or permission to reside.
- Any differential treatment would be objectively justified as a legitimate policy choice by the Scottish Government to allocate subsidised tuition to those with a sufficient connection to Scotland; courts should afford a wide margin of appreciation and be slow to interfere with public spending decisions.
- The proposed section 3 reading would amount to amendment of the regulations rather than permissible interpretation and would cross the line forbidden to courts; it would also create practical and evidential difficulties for admissions officers.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| R (Stott) v Justice Secretary [2018] UKSC 59; [2020] AC 51 | Framework for Article 14: need to show ambit, characteristic, analogous situations and lack of objective justification. | The court applied the Stott framework to assess whether the Plaintiff was in an analogous situation and whether any differential treatment lacked objective justification, concluding he was not analogous and the Article 14 claim failed. |
| Ghaidan v Godin-Mendoza [2004] UKHL 30; [2004] 2 AC 557 | Limits of section 3 HRA: reading legislation to be Convention-compliant must not change the substance or go beyond interpretation. | The court held the Plaintiff's proposed insertion would fundamentally alter the provision and cross from interpretation into amendment, so section 3 could not be used as proposed. |
| Ponomaryov v Bulgaria (5335/05) (2014) 59 EHRR 20 | State funding of education must be administered in a non-discriminatory manner. | The court acknowledged the principle but found the Plaintiff had not shown unlawful discrimination because he was not in an analogous position to excepted students. |
| R (Tigere) v Business, Innovation & Skills Secretary [2015] UKSC 57; [2015] 1 WLR 3820 | Recognition of the difficulties faced by displaced persons in accessing education and the pertinence of humanitarian characteristics. | The court noted these characteristics were relevant to understanding excepted students but emphasised the distinct residence/permission requirements that differentiate those categories from the Plaintiff. |
| S v L [2012] UKSC 30; 2013 SC (UKSC) 20 | Three-stage approach under HRA: (i) ordinary construction, (ii) incompatibility with Convention rights, (iii) whether section 3 can cure incompatibility. | The court applied this three-stage approach and concluded at stage one the ordinary construction excluded the Plaintiff; stages two and three did not assist the Plaintiff. |
| Belgian Linguistic Case (No 2) (1979-80) 1 EHRR 252 | Margin of appreciation in regulation of education; states enjoy discretion in educational policy. | The court relied on the wide margin of appreciation to recognise that the Scottish Government's allocation of subsidised education is a legitimate policy choice. |
| Fanning v Secretary of State for Work and Pensions [2025] CSOH 50; 2025 SLT 787 | Caution against judicial interference in public spending decisions. | The court cited this authority to support the proposition that decisions about allocation of public funds for education are matters for the legislature/executive. |
| Tarantino v Italy (2013) 57 EHRR 26 | Article 2 Protocol 1 is not absolute; limitations must be foreseeable and proportionate and pursue a legitimate aim; margin of appreciation applies. | The court applied these principles to conclude the regulatory distinction was within the state's margin of appreciation and pursued legitimate aims proportionately. |
| R (Carson) v Secretary of State for Work and Pensions [2006] 1 AC 173 [2005] UKHL 37 | Approach to assessing alleged discrimination where analogue situations and objective justification are in issue. | The court referenced the Carson passage (via Stott) to explain the method of scrutiny and to support focusing on justification where analogy is not clear; applied this to reject the Plaintiff's claim. |
Court's Reasoning and Analysis
The court began by identifying the statutory scheme in the Education (Fees) (Scotland) Regulations 2011, including the "relevant connection" test and the Schedule 1 categories of "excepted student" which require leave or permission to enter or remain in the United Kingdom and specified residence conditions. On ordinary construction the Plaintiff did not meet the three-year residence requirement and did not fall within any excepted category.
The court applied the Stott framework for Article 14. It found the Plaintiff was not in an analogous situation to excepted students because, unlike those categories, he enjoys an absolute legal right to live in the United Kingdom by virtue of his British citizenship and therefore did not require leave or permission to reside. That legal difference was decisive: the Plaintiff is analogous to any other British citizen lacking established UK residence rather than to foreign nationals requiring permission to remain.
The court concluded that the regulatory scheme reflected a deliberate policy choice by the Scottish Government to direct public subsidy to those demonstrating a sufficient connection with Scotland; this fell within a wide margin of appreciation and was a legitimate aim. Consequently, no unlawful discrimination under Article 14 was established.
On the Human Rights Act 1998 section 3 point, the court held that the Plaintiff's proposed remedial reading would change the substance of the statutory provision by extending exceptions to British citizens generally. That would go beyond permissible interpretation into amendment, contrary to the limits described in Ghaidan, and would create practical and evidential difficulties for implementation. For these reasons section 3 could not be used to give the 2011 Regulations the meaning the Plaintiff sought.
Holding and Implications
REFUSED: The reclaiming motion was refused and the court adhered to the Lord Ordinary's interlocutor of 24 June 2025 refusing the petition for judicial review.
Implications: The direct effect is that the Plaintiff remains outside the excepted categories under the 2011 Regulations and Company A was entitled to treat him as not eligible for home-fee treatment under those regulations. The court emphasised that the decision upheld the Scottish Government's policy choice on allocation of subsidised higher education and did not create a new precedent extending excepted-student protection to British citizens in the Plaintiff's circumstances.
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