Abstract:

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Education is not a privilege but a fundamental human right for all. In this respect, international law is clear – everyone has the right to education and no person shall be denied this right. Education not only promotes the full development and dignity of the human personality, enabling all to participate in society and reach their goals, it is also widely recognised as strengthening respect for human rights, and promoting understanding, tolerance and friendship among all. When it comes to access to higher education (HE) specifically, the International Covenant on Economic, Social and Cultural Rights (ICESCR) Article 13(2)(c) states that ‘[h]igher education shall be made equally accessible to all, on the basis of capacity, by every appropriate means, and in particular by the progressive introduction of free education [emphasis added]’; in other words, on the basis of merit, and merit alone.

 

It is unquestionable that the large swathe of significant changes to the governance and funding of HE in the United Kingdom (UK), instituted especially since the coming into force of the Teaching and Higher Education Act 1998, have led to an increased financial burden on students. While such changes may appear to jeopardise the ability of less wealthy students to access HE on the basis of financial cost, access has nevertheless remained possible thanks to the introduction of a package of government loans for study at undergraduate, more recently, postgraduate taught, and as of 2017, postgraduate research level. When these financing options are considered from a forced migration perspective, those who have been granted refugee status by the UK Home Office and who are, as a consequence, classified as Home students for fee purposes, are immediately eligible to apply for government loans. However, in contrast, for asylum seekers and a select group of persons with other associated immigration statuses, many of whom fall somewhere between the dichotomous Home-International fee classification structure, access to such loans is expressly prohibited. While such students may face a multitude of barriers to entering HE, it is the financial cost combined with their exclusion from the government loans regime that most often precludes their access.

 

Cognisant of these insurmountable barriers that prevent some categories of forced migrant students from accessing HE, and increasingly aware of the role they can play in facilitating such entry by taking steps to fill this “access gap”, a greater number of UK higher education institutions (HEIs) have begun to offer targeted scholarship schemes, often collectively known as “Sanctuary Scholarships”. These schemes are designed to help break down the identified barriers, and meet the demand of forced migrant students wishing to access HE, by providing a bespoke package of financial, academic and pastoral support. However, it is not only prospective forced migrant students that face barriers, as HEIs themselves also find that they are confronted by numerous obstacles when initiating and implementing such scholarship schemes, obstacles that are not only related to the additional financial cost and the, at times, viscerally-hostile response of some segments of the polity, but also to the legal framework within which their schemes are situated and must comply.

 

By tracing the myriad of recent legal developments in respect to access to HE for forced migrant students, this paper will present the evolution of a legal regime that lies at the nexus of forced migration and HE student financing. This regime, which is not only becoming increasingly complex but is also prone to instability and obfuscation, seriously challenges the ability of HEIs to develop and administer Sanctuary Scholarships, and also risks dissuading those HEIs that would otherwise be committed to providing such tailored support to forced migrant students. Furthermore, while it will be shown that many of these regulatory changes may perhaps appear to be relatively minor, they nonetheless have a demonstrable impact, which, as this paper will argue, only goes to reveal the insidious manner in which domestic law is being used as an instrument by which to invidiously encroach upon the right of forced migrants to access HE, and undermine the confidence in and long-term sustainability of these nascent scholarship schemes.

 

Biography:

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Ben Hudson is a final year law PhD Candidate (ESRC 1+3 Scholarship) and Teacher at the University of Bristol. Ben's research interests lie in the area of forced migration and human rights. His doctoral research, which is supervised by Professor Sir Malcolm Evans and Dr Diego Acosta Arcarazo, concerns the human rights protection of internally displaced persons (IDPs). Ben’s research engages with the realisation of durable solutions to internal displacement, specifically the legal right to return in international, regional and national law and policy. His research is particularly inspired by his time in Georgia working with non-governmental organisations and United Nations agencies (UNDP and UNHCR) on IDP humanitarian response, development assistance, and integration.

 

In addition to his doctoral research, Ben also provides legal research support to the University of Bristol Law School’s Human Rights Implementation Centre (HRIC) on a range of areas, notably including torture prevention, detention and migration. Ben holds a BA (Hons) in Architecture from the University of Manchester (2009), as well as an MSc in International Development (2011) and an MSc in Socio-Legal Studies (2014), both with distinction from the University of Bristol. In September 2017, Ben will be starting as a Lecturer in Law at the University of Lincoln.

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