Mr Leo Huisman, a dual national of South Africa and the UK, who fled from South Africa to the UK in 2021 following threats towards his family (the "Student") sought to challenge the decision of the University of the Highlands and Islands to charge him fees at the higher rate.
The Student accepted that he did not meet the 2011 Regulations "relevant connection" requirement, which principally requires ordinary residence in Scotland for a period of three years, nor did he fall within the specified categories to qualify as an "excepted student".
His challenge was that the 2011 Regulations were being applied in a way that was discriminatory and infringed on his rights under Article 14 of the European Convention on Human Rights ("ECHR") by virtue of his British citizenship.
The Student highlighted that many of the "excepted student" categories shared the link that such students required to remain in the UK for humanitarian reasons. He argued that he also was someone who had to flee his place of residence abroad and sought access to education under special circumstances and should therefore be treated in a manner akin to the other exceptional circumstances. He claimed that there was no legitimate aim in predicating the definition of excepted students on the basis of immigration status such that British citizens are never able to bring themselves within the scope of the exceptions.
The Student asked the Court to read his situation into the list of excepted students to remedy unlawful discrimination in terms of section 3 of the Human Rights Act 1998 ("HRA").
The Law
The charging of tuition fees by Scottish universities is governed by the Education (Fees) (Scotland) Regulations 2022 (the "2022 Regulations"). The 2022 Regulations and their predecessor the Education (Fees) (Scotland) Regulations 2011 (the "2011 Regulations") allow Scottish universities to charge a higher rate to students who do not have a relevant connection with Scotland if they do not qualify as an "excepted student".
For unlawful discrimination to arise under the ECHR and HRA, four factors must be proven:
- the circumstances must fall within one of the main human rights in the ECHR and HRA;
- the difference in treatment must have been on the ground of a relevant characteristic under Article 14 ECHR;
- the claimant and the person who has been treated differently must be in analogous situations; and
- there must not be an objective justification for the differential treatment (i.e. the difference in treatment must not be a proportionate means of achieving a legitimate aim).
The Judgment
The Court decided that the right to education was engaged and that the broad definition of "other status" in Article 14 ECHR brought the Student's claim within scope of the prohibition of discrimination (i.e. the first two factors above).
In relation to the third factor, the Court decided the Student was not in an analogous situation to excepted students. The Student's argument was that although he had British nationality, he had fled his place of former residence on protection and humanitarian grounds. The Court rejected this as it was important to note that all of the expected student categories had some provision requiring leave or permission to take up residence in the United Kingdom. In passing the 2011 Regulations, the Scottish Government exercised a deliberate choice as to who would be the beneficiary of funding for further education: a distinction had been drawn between those who had a right to reside in the United Kingdom and could freely move within the UK with a view to meeting the relevant connection to Scotland test and those who did not have a right to reside in the UK. The Court held that, it cannot be said that the Student was in the same category as foreign nationals who have no right to enter into the United Kingdom save for falling into one of the excepted categories. Therefore, the Student failed to prove the third factor.
The Court went on to consider the fourth factor: whether, if discrimination did arise, the Court could have "read the Student in" to the list of excepted students. The Court held that there is a broad power under section 3 of the HRA to read legislation in a way which adds new words or changes the meaning of words if required to prevent a breach of human rights. However, the Court also held the substance of a law cannot be completely re-written. If that was required, the only option is to declare the law incompatible with human rights under section 4 of the HRA (i.e. not read the Student into the list of excepted students but declare that his inability to be treated similarly as a breach of human rights). The Court held that the effect of adding the Student to the list of excepted students, if he had suffered discrimination, would be to fundamentally alter the law. It would effect the class of people to whom government resources are directed and that was a matter for the democratically elected government and not the Courts.
Comment
This judgment serves as a useful reminder of some key points relation to discrimination law in the field of further and higher education.
Firstly, when faced with discrimination claims of this nature, Universities should give careful consideration to the treatment of students and people in analogous situations which the Court recognises can sometimes be overlooked or fused with the fourth factor. However, where a person claims to be treated differently, it is important to consider the comparator and whether the claimant and comparator are truly in analogous situations.
Finally, the legal landscape regarding tuition fee support in Scotland is complex and key political choices have been made in relation to the funding regime in Scotland. This judgment serves as reminder that the Courts will be cautious in discrimination cases where the discrimination is said to have arisen as a result of decisions made by the democratically elected governments and parliaments.
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