Can immigration compliance amount to unlawful discrimination?

As I was reading this article in the Times Higher about how Home Office rules were forcing institutions to withdraw from certain international markets, it struck me just how much of an erosion into institutional autonomy immigration control has now become.  The countries universities target, where they set up campuses in this country , even what they teach have all become areas over which the Home Office exercises significant, often decisive, influence. It is difficult to think of another regulatory body that could have forced a similar degree of compliance on the sector.

The article raised another interesting question: does such a development amount to “racial discrimination”.  There are two separate policies alluded to in the piece. The first is the policy of not offering places to students from countries that have a high level of visa refusal, because of the risk of losing the right to sponsor students if refusals tip over a particular percentage.  The second was the policy of complying with the Home Office’s instruction not to recruit from certain places.

Before I address the legal position, I should declare a sort of interest. I was born in India, one of the affected countries named in the article. If I were applying to study here now, the policy would most likely apply to me. So on a personal level, I can well see how it could be experienced as discriminatory.

But what is the legal position?  If someone is treated less favourably because of his or her race then that is on the face of it direct discrimination. It is unlawful for an institution to discriminate against a person in the arrangements it makes for deciding to whom to offer admission or by refusing to admit a person as a student. “Race” for the purposes of the Equality Act includes colour, nationality, ethnic and national origins. Therefore, refusing to make offers to persons because of their nationality could indeed be unlawful direct discrimination. This sort of discrimination cannot be justified, even on the grounds that there have been high levels of visa non-compliance with other people sharing that nationality.

There are however a couple of  contextual issues to bear in mind.

Firstly, if the refusal is restricted to people from certain regions of certain countries, then it is unlikely to amount to race discrimination unless the residents of that region constitute a distinct racial group, because for example they share a distinct and discrete ethnicity.

Secondly, nationally-based discrimination is permissible if it is in pursuance of an Act or statutory instrument, or a requirement or condition imposed by the Secretary of State, or to comply with arrangements made with the approval of the Secretary of State. 

There is so far as I am aware no Act or SI that requires or permits discriminatory treatment of certain nationalities in this context. It is however possible that instructions by UKVI officials that an institution should stop recruiting from a particular country might amount to ”arrangements” which, provided they are approved of by the Secretary of State, might make the discrimination permissible.

Alternatively, it is possible that institutions could try to argue that deciding not to make offers to nationals of these countries is a necessary step to comply with a “condition” imposed by the Secretary of State, namely the requirement that visa refusals must not rise above 10%.

These are however not straightforward arguments to run and it would be important to ensure that the decision followed precisely the condition or arrangements in question, as any deviation from those might mean that the benefit of the protection is lost. It is also fair to say that it may sometimes be difficult to prove what precisely the requirement was, especially where based on oral instructions from UKVI officials.
 
The importance of complying with requirements relating to Tier 4 sponsorship goes without saying. However, there are occasions where complying with Home Office expectations puts other aspects of legal compliance in jeopardy, and this may be one of them.

Smita Jamdar 
Partner and Head of Education
T: 0121 214 0332
E: smita.jamdar@shma.co.uk
W: www.shma.co.uk

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