Access to Higher Education for migrant students is a fundamental right. Scottish Government’s Students’ Allowances (Scotland) Regulations now need to change

books on a table


by Maisie Wilson 

For children and young people who moved to Scotland at a young age and built their lives in their communities, education is one of the first and most critical services they need access to.
Access to Education is a Human Right protected by Article 2, Protocol 1 European Convention on Human Rights (ECHR). However, the Scottish Government’s Students’ Allowances (Scotland) Regulations 2007 have been found to violate Article 2 Protocol 1, and Article 14 ECHR.
The Court of Session Outer House found that these regulations were discriminatory by preventing a category of migrant young people, living lawfully in Scotland since their childhood, from accessing college or university alongside their peers. 

About the case
When our client came to us, although she had completed all of her secondary education in Scotland, had received an unconditional offer to study medicine, and was registered as a ‘home student’; the Student Awards Agency Scotland (SAAS) refused to pay for her tuition. SAAS is an arm of the Scottish Government.  

Undergraduate Scottish students who study at a university in Scotland are funded by the Scottish Government through SAAS. This should’ve been the case for our client; however, there was a discriminatory eligibility in place allowing the government to refuse our client funding. This was known as the ‘long residency’ test in the 2007 SAAS Regulations.  

The ‘long residency’ test meant that up until the age of 18, you will have had to live in Scotland for seven years, but once you turn 18, you had to have been living in Scotland for half your life. This is referred to as a ‘cliff-edge’ as overnight the long residency test jumps from seven years to nine years. 

This is not the first time that residency status and its relationship with access to education has been challenged.  Before 2017, Student Support regulations made no provision for financial support being made available to students without ‘settled’ status. This was challenged in the Tigere case (2015). The Supreme Court decided that the regulation requiring settled status as a requirement for student support was in breach of the students’ rights. The Court suggested introducing ‘long residency’ eligibility. Although the UK Government removed some barriers to accessing education for those with settled status, barriers still remained – such as the over-18 cliff edge. This remained as less than 1% of students beginning further education in England are under 18 years; however, it is a different situation in Scotland. The proportion of under 18s going to university is vastly greater than in England – with estimates between 30% to 40%. 

This means that the ‘cliff-edge’ for 18-year-olds is a much bigger issue in Scotland, and ultimately incredibly unfair. 

What was challenged?
Our client did not believe these rules were fair. She was affected by the ‘cliff-edge’ as she fell short of the long residency requirement by 58 days with the Scottish Government refusing any discretion regarding her situation. There is also a rule that if you are not eligible for SAAS funding in the first year of your studies – such as was the case for our client – you are not allowed to reapply at any point during the duration of the course. This is called the ‘year 1 rule’. This then meant that she would either have to continue paying tuition fees even though she may become eligible for funding during her course or have to wait five years to apply again before she could receive SAAS funding due to the half-life requirement.  

Evidently, our client did not want to accept this discriminatory criterion. Consequently, we took the Scottish Government to court to outline how the current SAAS regulations were unfair and a breach of the right to education.  

What does that mean?
The case was heard at the Supreme Court in Edinburgh, where it was found that the criteria in the 2007 Regulations was a violation of the right to education. This right is protected by the European Convention of Human Rights, the Human Rights Act, and the United Nations Convention on the Rights of the Child. The judge stated that the right to education has been recognised as a fundamental right and is key to the functioning of a democratic society.  

Eligibility for student funding was meant to help students who were most likely to call Scotland home and contribute to Scottish society after graduation. Yet, our client who wanted to study medicine in order to work as a doctor for the NHS in Scotland was being denied this. Thus, this rule was detrimental to both our client and to Scottish society. 

The judge deemed that the ‘long residency’ rules excluded eligibility for student support for individuals – such as our client – who had a clear and continuing connection with Scotland.  

As such, the judge ruled that Paragraphs 1(c)(ii) and (iii) of Schedule 1 to the 2007 Regulations are unlawful in light of Article 14 and Article 2 of Protocol 1 to, the European Convention on Human Rights. 

What’s happening now?
JustRight Scotland – in partnership with Maryhill Integration Network and JustCitizens – is hosting an online event to discuss the outcome of the recent court ruling on access to SAAS funding.

This event will be discussing SAAS requirements, what the court case challenged, and what the ruling now means. We hope this will clarify what entitlements are, whether one may be eligible for reimbursement of fees, and what avenues are available to push for further improvement to SAAS regulations.
To book your ticket, please click here. 

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