Application of settlement criterion is a breach of rights under Article 14 of ECHR read with Article 2 of First Protocol

Supreme Court of United Kingdom- Deciding on whether the lawful residence criterion or settlement
criterion breaches the appellant’s right to education under Article 2 of the
First Protocol (A2P1) to the European Convention on Human Rights (ECHR) and
Article 14 ECHR, the Court by a majority of 3:2 made a declaration that the application of the settlement
criterion to the appellant is a breach of her rights under article 14, read
with article A2P1, of the Convention. The Court held that the declaration makes
it clear that the appellant is entitled to a student loan while leaving it open
to the Secretary of State to devise a more carefully tailored criterion which
will avoid breaching the Convention rights of present and future applicants.

According to the facts, the appellant, a Zambian
national, came to the UK
in 2001 at the age of six. Her mother overstayed and the appellant was
unlawfully present in the country until 2012. The appellant presently has
discretionary leave to remain in the UK. The appellant has received her
entire education in the UK
and wishes to go to university for further education. Due to her immigration
status which makes the appellant ineligible for a student loan, the appellant
had been unable to take up the university places offered to her. In the UK, in
order to qualify for a loan, student must be resident in England when the
academic year begins; have been lawfully ordinarily resident in the United
Kingdom for the three years before then; and be settled in the United Kingdom
on that day.

Giving reasons, Lady Hale observed that if the loan is
not provided students like the appellant may be left in the dilemma as they are
allowed access to all the public services including cash welfare benefits, but
are denied access to this one benefit of a repayable loan. The Court also noted
that if the benefit of loan is denied, it will be a loss to the community as a
whole. Regarding the issue of lawful residence, the Court held that the
appellant cannot be blamed for this fact because it was the result of the
decisions taken by her parents over which she had no control. Lastly, the Court
held that “lawful ordinary residence” criterion was compatible with the
appellant’s Convention Rights. [R v.
Secretary of State for Business, Innovation and skills, [2015] UKSC 57,
decided on 29.07.2015]


Source: Legal news India