In September this year, medical student Ola Jasim successfully judicially reviewed a decision by the Student Awards Agency Scotland (“SAAS”) not to award her student support on the basis that she did not have “settled” status and had not fulfilled the long residence requirements under the Students’ Allowances (Scotland) Regulations 2007 (the “2007 Regulations”). The judicial review was heard in the Court of Session. Lord Sandison held that SAAS’s decision had breached Ms Jasim’s right to education under the European Convention on Human Rights (“ECHR”) and amounted to unlawful discrimination.  
Ola Jasim was born in Iraq in September 2002 and has lived in the UK since just after her 11th birthday.  At the time of SAAS’s decision, Ms Jasim had limited leave to remain in the UK, not yet qualifying for indefinite leave to remain.  She excelled during her school career and was accepted to study medicine at the University of Dundee.  She began her studies in October 2020.  She had no intention of returning to Iraq or leaving the UK on any permanent basis.  Ms Jasim did not apply for student support when she first took up her place at university, in the mistaken belief that she required a national insurance number to do so.  The court noted that her parents made considerable sacrifices to fund her first year without support from the state.  After her first year, she applied to SAAS for student support.  This application was rejected.

The 2007 Regulations

SAAS is permitted to provide allowances to non-Scottish students provided they meet the criteria set out in paragraph 1 of Schedule 1 to the 2007 Regulations, namely:

1. that they are ordinarily resident in Scotland on the “relevant date” (i.e. the first day of the first academic year of their course);
2. that they have been ordinarily resident in the UK for three years prior preceding the relevant date; and
3. that they either:
   1. have “settled” status, as per the Immigration Act 1971, on the relevant date; or
   2. if they are under 18, that they have lived in the UK for seven years preceding the relevant date; or
   3. if they are over 18, that they have lived in the UK for half of their life or a period of 20 years preceding the relevant date.

Ms Jasim was ordinarily resident in Scotland on the relevant date and had been for at least three years prior, so the first two criteria were fulfilled.

However, as Ms Jasim did not enjoy “settled” status, it was necessary for SAAS to apply the long residence tests when determining her application.  At the “relevant date”, Ms Jasim was 17, meaning that she would only be entitled to receive support if she had lived in the UK for seven years.[1] Ms Jasim was 58 days short of this cut-off. Under the 2007 Regulations, SAAS had no discretion to grant the application and accordingly this was refused.

The Tigere effect – introduction of the long residence requirements

It is worth noting that the long residence requirements set out above were relatively recent additions to the 2007 Regulations.  Prior to that, students had to enjoy “settled” status in order to be entitled to support.  This reflected the English position under the Education (Student Support) Regulations 2011. That changed in 2015 with the English Supreme Court case of R (Tigere) v Secretary of State for Business, Innovation and Skills, in which it was found that the requirement for settled status as a precondition for the provision of student support was a breach of Convention rights.

As a result of Tigere, and after a consultation exercise and Equality Impact Assessment, the UK Government decided that it was reasonable to amend the 2011 Regulations so that student support could be granted to under 18s who had been resident in the UK for 7 years and to over 18s who had spent at least half their life, or 20 years, in the UK.

The Scottish Government brought forward its own legislation to amend the 2007 Regulations, effectively mirroring the English long residence requirements.  No separate consultation exercise or Equality Impact Assessment was carried out in Scotland, on the basis that “this amendment widens rather than restricts entitlement to student support and there was clear guidance from the Supreme Court”.

In an affidavit provided to the court in the Jasim case, the Senior Policy Lead for SAAS set out the policy rationale for the introduction of the long residence requirements in the 2007 Regulations:

“The overarching policy factor for allowing people to access student support is ensuring that they have a sufficient connection with Scotland, so that limited public funds are applied appropriately to students who are most likely to enter the labour market and contribute to the Scottish economy after graduation.”

The closeness of the court’s legislative scrutiny

As a general rule, a court will be slow to interfere with or challenge legislation where its wording is clear and it has passed through a rigorous legislative process. However, Lord Sandison noted that the court’s scrutiny would be closer where there was no evidence that the decision-maker actively considered the impact of that decision on Convention rights.

Lord Sandison held that the absence of a Scottish consultation or impact assessment before the introduction of the long residence requirement could be taken into account as a factor in determining the appropriate “margin of appreciation” to allow the decision-maker.  He noted that, had both of these exercises been carried out, this might have heightened the respect which the court paid to the legislative process, and thus to the 2007 Regulations.

Margin of appreciation

The margin of appreciation is a concept within human rights law which empowers state entities to exercise a degree of control/discretion in its application of Convention rights. This concept recognises the principle that national authorities are, in theory, better placed than the European Court of Human Rights to evaluate local needs and conditions, and to apply Convention rights accordingly.

However, for obvious reasons, this margin of appreciation is not absolute.  In fact, a number of factors will impact the width of the margin of appreciation to be afforded to the state entity which created the legislation subject to challenge.

In Jasim, as the 2007 Regulations related to a socio-economic measure, this engaged a wider margin of appreciation. Factors narrowing the scope of the margin included the lack of consultation or impact assessment carried out in advance of amending the 2007 Regulations, and the fact that differential treatment on the ground of immigration status could result in a significant degree of social exclusion, preventing Ms Jasim, or those in her position, from participating in society on an equal footing.

These factors led Lord Sandison to determine that the applicable margin of appreciation was in the middle of the spectrum, tending towards a slightly higher decree of scrutiny.

Proportionality and Bank Mellat

In assessing the overall balance of the 2007 Regulations, Bank Mellat (No 2) sets out the relevant test for proportionality. The components of the test are:

1. whether the objective sought is sufficiently important to justify the limitation of a protected right;
2. whether the measure is rationally connected to the objective;
3. whether a less intrusive measure could have been used without unacceptably compromising the achievement of the objective; and
4. whether, balancing the severity of the measure’s effects on the right of the persons to whom it applies against the importance of the objective, the former outweighs the latter.

In Jasim, Lord Sandison considered that on limbs (a) and (b) of the test, the policy objective of providing student support only to those with a close connection to Scotland was sufficiently important to justify limitation, and that a long residence condition was rationally connected to this objective. In terms of (c), Lord Sandison considered that the court should only consider whether the measure was “reasonable” to impose in connection with the objective sought. He considered that a long residence requirement was, in principle, reasonable. The final ground of the test (part (d)), and the one on which the 2007 Regulations failed, asks, in Lord Sandison’s words “Does the end justify the means?” In this instance, the answer was no.

The court held that the rules as applied to Ms Jasim and others in her position would have a significant detrimental impact on their rights. The impact of the long residence requirement meant that she would be unable to access education at the same time as her peers, a time at which such education would be particularly valuable to her. There was a further risk that, in leaving education at that point, she would not return to education in the future, and society would also lose the benefit of the skills she could have gained.

The long residence requirements in the 2007 Regulations themselves were also determined not to be particularly effective in achieving their stated policy objective. Some who meet the residence criteria will not intend to remain in Scotland after their studies, but will benefit from funding, but others, like Ms Jasim, will be committed to staying, yet excluded from support. Lord Sandison considered that the Regulations imposed a crude approach. While he recognised the benefit in drawing a clear dividing line in terms of entitlement to support, he found that there was no reason why a general rule could not be used in accordance with some case-by-case assessments for the small number of applicants who would be in Ms Jasim’s position.

Fundamentally, Lord Sandison considered that the Regulations as they stood did not strike a fair balance between the benefit of having a clear rule, and the negative impact such restrictions would have on those in the position of Ms Jasim. As such, he held that the Regulations in question constituted a disproportionate interference with Ms Jasim’s right to education and constituted unlawful discrimination.

For further information about this case or on the broader issue of how human rights law in Scotland may impact on the higher education sector, please contact Fiona Killen or Rebecca Roberts in our Public Law and Regulatory Division.

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