Inner House refuses appeal against decision that university could charge South African with UK citizenship higher tuition fees

About this case:

• Citation:
  [2026] CSIH 17
• Judgment:
  External link
• Court:
  Court of Session Inner House
• Judge:
  Lord Pentland

Petitioner and reclaimer Leo Huisman, who came to Scotland from South Africa in 2021, had argued that due to the adverse circumstances of his arrival in the UK he ought to be treated as analogous to a person with refugee status, which would allow for him to be treated in the same manner as a Scottish student. The University of the Highlands and Islands, as respondent to the appeal, argued that his treatment fell within the wide margin of appreciation afforded in Scottish tuition fee policy.

The appeal was heard by the Lord President, Lord Pentland, with Lady Wise and Lord Clark. Whyte, advocate, appeared for the reclaimer, Reid KC for the respondent, and D Welsh, advocate, for the Scottish ministers as an interested party.

Underlying policy rationale

The reclaimer was born and raised in South Africa. His mother was born in Scotland but moved to South Africa as a child in 1974. It was averred that they left the country because of threats and intimidation against the family in connection with a report by the petitioner’s mother on political corruption involving prominent people. The reclaimer’s mother explained that they contacted the Home Office to apply for refugee status, in part because she believed it would enable the reclaimer to be classified as a home student but was told that because they were British citizens they did not quality for humanitarian protection.

As the reclaimer came to Scotland in 2021, the relevant rules for determining whether he had a relevant connection to Scotland as to be charged the lower rate of tuition were contained in the Education (Fees) (Scotland) Regulations 2011. The second criterion for determining such a connection was that the student be ordinarily resident in the UK for three years immediately prior to the relevant date, here 1 August 2021, with an exception for students who had applied for refugee status.

When the reclaimer enrolled with the respondent, it considered him to be an international student, but due to an administrative error he was charged the at Scottish fee level in his first two years of study. In his third year the mistake was discovered and the respondent sought to recover the underpayment of fees from his first two years. As a consequence of the dispute, he was not allowed to graduate or enrol in the appropriate post-degree course to allow him to practise as an optometrist.

The lord ordinary held that the reclaimer had more in common with students from the rest of the UK than with foreign nationals with no right to reside in any part of the UK and refused the petition. On appeal, the reclaimer submitted that the 2011 Regulations required to be read in such a way that they did not discriminate against him by virtue of his British nationality, noting the underlying policy rationale of the humanitarian excepted categories and the lack of choice behind his displacement from South Africa.

For the respondent and interested parties it was submitted that the 2011 Regulations were put in place because of the diverging policies on tuition fees between Scotland and the rest of the UK. This was a legitimate policy aim to provide access to higher education for students who normally lived and studies in Scotland and required a spending commitment from the interested parties in which the courts should be slow to interfere.

From interpretation to amendment

Delivering the opinion of the court, Lord Pentland began: “Essentially, [the reclaimer] claims that he has been unfairly discriminated against in comparison with students who have fled to Scotland for humanitarian reasons and been allowed to remain here. He says that this is what he had to do and that he should therefore be treated no differently. The difficulty with this argument is that the reclaimer does not seek to compare like with like. He is not in an analogous position to the ‘excepted students’.”

He continued: “The reclaimer is in an analogous situation to any other British citizen who does not have an established residence in the United Kingdom. The circumstances in which such a citizen has returned to the United Kingdom is not the determining factor. The reclaimer’s position is not analogous to those in the excepted student category. A British citizen who elects to exercise his or her right of residence in the United Kingdom because of a threat to his or her safety in another country cannot sensibly be equiparated with a citizen of another country who seeks humanitarian protection in the United Kingdom.”

Considering whether any discrimination could be objectively justifiable, Lord Pentland said: “The details of the residence requirements for different categories of students are matters falling within the wide margin of appreciation extended to the relevant authority, the Scottish government. It is notable that the requirements imposed in the case of excepted students are strict. Essentially, they must have been ordinarily resident in the United Kingdom at all times since being granted permission to enter or remain and be ordinarily resident in Scotland at the time of commencing their course. The policy is concerned with the exercise of lawful rights to live in the United Kingdom in the case of both British citizens and the excepted students.”

He concluded: “The additional words that the reclaimer proposes should be inserted into paragraph 4 of Schedule 1 to the 2011 Regulations would fundamentally transform the effect of the provision so that it no longer covered non-British citizens only; it would now extend also to British citizens. It is not legitimate for the courts to use section 3 to reshape the provision in this radical way. In the famous words of Lord Rodger of Earlsferry, such a reconstruction would not ‘go with the grain of the legislation’. The proposed expansion of the provision would be inconsistent with the scheme of the legislation and with its central principles. In effect, the court would be altering the policy choice made by the Scottish government. The proposed alteration to the terms of paragraph 4 of Schedule 1 clearly crosses the line from interpretation to amendment.”

The reclaiming motion was therefore refused.