In the case, Leo Huisman v University of the Highlands and Islands [2025] CSOH 53, the petitioner challenged the University of Highlands and Islands’ decision to charge him higher student fees under the Education (Fees)(Scotland) Regulations 2011. He claimed that his humanitarian circumstances were analogous to those of students who fell into excepted categories, and that the 2011 regulations were accordingly wrongly applied, infringing on his rights under the ECHR not to be discriminated against.
Background
The petitioner’s mother is originally from the UK, having moved to South Africa in her youth. The petitioner was born and raised in South Africa. In 2021, the petitioner and his mother fled South Africa due to threats following her whistle-blowing. The petitioner has dual nationality and enrolled at the University of the Highlands and Islands within 6 months of arriving in Scotland. His position was that he would have been classed as a refugee had he not had British citizenship.
The University classified the petitioner as an international student as he did not fall into the excepted categories in the 2011 regulations that required them to offer a place at a rate that is subsidised by the Scottish Government.
The petitioner said that the University ought to have proceeded as if he were a refugee but for the fact that he is a British citizen. Determining whether a person is a refugee is an exercise normally taken by the UK Government and is a lengthy and involved process. It is not possible for a British citizen to be a refugee in the UK and the UK Government will decline to issue a finding that “if you had not been a British citizen, we would have granted you refugee status”. Accordingly, if the petitioner’s claim was successful then all universities would require to undertake an assessment of whether the applicant would have been a refugee but for his British citizenship.
Legal Issues
This case raised questions under Article 14 of the ECHR, which protects a person from discrimination in asserting their rights under other articles in the ECHR – in this case the right to education (art 2). The main points in dispute were whether the petitioner was in an analogous situation to students who fell into the exceptions set out in the 2011 Regulations and whether there was any justification for differential treatment. If there had been discrimination then the court also had to decide whether it might be possible to read the regulations in such a way as to comply with the ECHR.
The petitioner did not qualify for any of the excepted categories provided for in the 2011 Regulations, partly due to his British citizenship. The petitioner said that his circumstances were analogous to an excepted student, in particular a student with refugee status, with the only difference being his nationality.
In the original decision, issued last year, the court found the petitioner was not analogous to foreign nationals needing leave to remain. Lord Lake noted that the common theme linking the excepted students was not the humanitarian theme, but that they all had leave or permission to take up residence in the UK. As a British citizen, the petitioner had an automatic right to reside, which set him apart from the excepted students.
The second legal issue was that of objective justification. Article 2 of the ECHR, the right to education, is not an absolute right and the court accepted that there was a legitimate aim in the regulations: to try to allocate finite financial resources to those students who had a connection with Scotland. Even if the court had found that there was discrimination, the differential treatment was justified.
Lord Lake also found that been had there been discrimination, without any objective justification, it would not have been possible to interpret the regulations in such a way as to correct the effect of the discrimination. That would have required them to expand the numbers of students who might fit into the excepted categories. To do so would go beyond the court’s constitutional role and that it was really for the Scottish Government to effect any changes, not the court.
Appeal
The case was recently brought to the Inner House of the Court of Session for appeal. Mr Huisman, now referred to as the reclaimer, said that the Lord Ordinary had erred in law in refusing the petition. Representing the University, Thorntons set forward a position that the Lord Ordinary correctly identified and applied the law, a position supported by the Scottish Ministers.
On 1 April 2026, the Judges in the Inner House found that the reclaimer was not analogous to the excepted students due to his British Citizenship, and that there had accordingly been no breach of Article 14. Further, any discrimination that could be found would be objectively justifiable and therefore lawful in Scotland. To rule against this would “go against the grain” of the legislation put in place by the Scottish government, and would cause significant practical issues for admission officers across the country. Ultimately the Judges refused the appeal, agreeing with the Lord Ordinary’s decision and the arguments made by the respondents and interested party. The outcome brings the matter to a successful close for the University of the Highlands and Islands, with Thorntons Law LLP having successfully defended the appeal on behalf of the respondent in the Inner House.
