“No person shall be denied the right to education. In the exercise of any functions which it assumes in relation to education and to teaching, the State shall respect the right of parents to ensure such education and teaching in conformity with their own religious and political convictions.”
“The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”
“[The claimants] are in a very special position having been abandoned first by their father and then by their only other supporting relative … However, I think there is objective justification for the bar … particularly as those who have no indefinite leave are not in general those who would come onto the labour market here and so who would benefit, as would the economy generally, from their skills. The decision to limit loans to those who have humanitarian protection is accordingly in my view reasonable, since they are likely, unless circumstances change in the country of their nationality, to remain here. My only concern is that the claimants are, as I have said, someone special. It is said that they have a likelihood of Indefinite Leave to Remain – that seems prima facie to be right. Accordingly, it seems to me that it is arguable that there should be the possibility of discretion to be exercised if, but only if, funding is unavailable from any other source and the individual in question has a real likelihood of being able to remain in the UK workforce.”
“The negative formulation indicates … that the Contracting Parties do not recognize such a right to education as would require them to establish at their expense, or to subsidise, education of any particular type or at any particular level.”
“Although the Article does not impose a duty on the Contracting States to set up institutions of higher education, and State doing so will be under an obligation to afford an effective right of access to them.”
“(1) Whether article 2 of the First Protocol … extends to tertiary education; (2) whether, if it does, the arrangements for loans to students fall within in; and (3) if they do, whether those arrangements are justifiable so that they do not contravene the anti-discrimination provision in article 14.”
“The Court must solely determine whether, once a State has voluntarily decided to provide such education free of charge, it may deny that benefit to a distinct group of people, for the notion of discrimination includes cases where a person or group is treated, without proper justification, less favourably then another, even though the more favourable treatment is not called for by the Convention. … 54. Having thus clarified the limits of its inquiry, the Court starts by observing that a State may have legitimate reasons curtailing the use of resource-hungry public services – such as welfare programmes, public benefits and health care – by short term and illegal immigrants, who, as a rule, do not contribute to their funding. … 55. Although similar arguments apply to a certain extent in the field of education … they cannot be transposed there without qualification. It is true that education is an activity that is complex to organise and expensive to run, whereas the resources that the authorities can devote to it are necessarily finite …It is also true that … the State must strike a balance on the one hand, between the educational needs of those under its jurisdiction, and, on the other, its limited capacity to accommodate them. However, the Court cannot overlook that, unlike some other public services, … education is a right that enjoys direct protection under the Convention. It is also a very particular type of public service, which not only benefits those using it but also serves broader societal functions. … 56. For the Court, the State’s margin of appreciation in this domain increases with the level of education, in inverse proportion to the importance of that education for those concerned and for society at large. Thus, at the university level, which so far remains optional for many people, higher fees for aliens – and indeed fees in general – seem to be commonplace and can, in the present circumstances, be considered fully justified. The opposite goes for primary schooling, which provides basic literacy and numeracy … and is compulsory in most countries. 57. Secondary education, which is at issue in the present case, falls between the two extremes. … However, the Court is mindful of the fact that with more and more countries now moving towards what has been described as a “knowledge-based” society, secondary education plays an ever increasing role in personal development and in the social and personal integration of the individuals concerned … 58. These considerations militate in favour of the Court’s applying stricter scrutiny to the assessment of the proportionality of the measure affecting the applicants. 59. In assessing the proportionality the Court does not need, in the very specific circumstances of this case, to determine whether the Bulgarian State is entitled to deprive all irregular residing aliens from educational benefits – such as free education – that it has agreed to provide to its nationals and certain limited categories of aliens. It is not the Court’s role to consider in the abstract whether national law confirms with the Convention … The Court will therefore primarily have regard to the personal situation of the applicants. ”
“I do not accept the claimants’ submission that the Ponomaryov case suggests that the normal deference that might be shown to resource decisions ought not to apply to higher education.”
“The fact that there are grounds for criticising, or disagreeing with, these views, does not mean that they must be rejected. Equally, the fact that the line may have been drawn imperfectly does not mean that the policy cannot be justified. Of course, there will come a point where the justification for a policy is so weak, or the line has been drawn in such an arbitrary fashion, that, even with the broad margin of appreciation accorded to the state, the court will conclude that the policy is unjustifiable.”
“The claimants attempt to rely upon a race discrimination case – Elias – to justify the proposition that the concept of a broad margin of appreciation is of no assistance where there is no evidence that the Defendant has given any proper advance consideration to the differential impact of the change. At the time the change was made, consideration was given by officials to the impact on certain groups during the period when consideration was being given to the change, August 2010 – Jan 2011. There was discussion with the Home Office and UKBA and also the Refugee Council on26 Oct 2010 . In July 2011 officials met the Refugee Children’s Consortium and the Secretary of State met with them on13 January 2012 . Specific representations were made regarding [unaccompanied asylum seeking children] but no grounds were provided such that the Defendant considered that this group should be treated exceptionally.”
“It has been the policy of successive governments that students must be resident here without being subject to any restriction under the immigration laws on the period for which they may stay, if they are to qualify for home fee status and student support, apart from certain exceptions. We recently reviewed the position of students who hold [DLR], noting that this is temporary leave granted for a limited period only. We concluded that the Government should provide support only for holders of temporary leave to remain who are in need of international protection i.e. those awarded either refugee status or Humanitarian Protection. In reaching this decision, we took account, in particular, of the financial constraints facing the student finance budget and the requirement to set clear, understandable criteria for the division between those who would be eligible and those who would not, and the fact that, given the maximum period that [DLR] can be granted is three years, few of those granted such leave would be in a position to complete the standard length undergraduate course. I recognise that you felt the change made by the regulations has had a particularly adverse effect on unaccompanied asylum seeking children, but having considered the briefing you have provided, do not believe there is a strong enough case to make a special exemption for this groups of individuals. Whilst I understand that making a special exemption to [unaccompanied asylum seeking children] who hold [DLR] would only involve a very small number of students, we believe that it would not be possible to make this concession without extending it to a wider group. This is not a change we are able to consider during these difficult economic times.”