Two boys were born to Russian parents in what became Kazakhstan. After their parents’ divorce, their mother married a Bulgarian and they all came to live in Bulgaria. The mother was granted a permanent residence permit and the boys were entitled to residence on the basis of her permit. They were educated at Bulgarian primary and secondary schools. There came a time when they should have had permanent residence permits of their own. Although both eventually succeeded in obtaining these, they complained that they had for a while been charged fees for their secondary education, whereas Bulgarian nationals and aliens having permanent residence permits were not.
Held: Requiring these boys, who had come to Bulgaria lawfully as young children, had no choice in the matter, and were fully integrated into Bulgarian society, to pay fees on account of their nationality and immigration status was not justified. The court relied on UNCRC article 28 as supporting the view that the state enjoyed a greater margin of appreciation in relation to secondary as compared to primary education.
The court observed that ‘a state may have legitimate reasons for 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. It may also, in certain circumstances, justifiably differentiate between different categories of aliens residing in its territory’. However: ‘Although similar arguments apply to a certain extent in the field of education – which is one of the most important public services in a modern state – 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 in deciding how to regulate access to education, and in particular whether or not to charge fees for it and to whom, a state must strike a balance between, on the one hand, the educational needs of those under its jurisdiction and, on the other, its limited capacity to accommodate them. However, the court cannot overlook the fact 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 directly benefits those using it but also serves broader societal functions. Indeed, the court has already had occasion to point out that ‘[i]n a democratic society, the right to education . . is indispensable to the furtherance of human rights [and] plays . . a fundamental role . . .’ Moreover, in order to achieve pluralism and thus democracy, society has an interest in the integration of minorities’
The state’s margin of appreciation increased with the level of education. University education remained optional and higher fees for aliens seemed to be almost universal and were fully justified. The opposite went for primary education, which provided basic skills and integration into society and was compulsory in most countries. Secondary education fell between the two extremes, but ‘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 successful personal development and in the social and professional integration of the individuals concerned’
Judges:
Nicolas Bratza, P
Citations:
[2011] ECHR 972, 5335/05, [2011] Eq LR 883, [2011] ELR 491, (2014) 59 EHRR 20
Links:
Statutes:
European Convention on Human Rights, United Nations Convention on the Rights of the Child
Jurisdiction:
Human Rights
Citing:
See Also – Ponomaryov and Others v Bulgaria ECHR 18-Sep-2007
The applicants complained they were required to pay school fees as a result of their Kazakh nationality and immigration status.
Held: ‘… [A state] may also, in certain circumstances, justifiably differentiate between different categories of . .
See Also – Ponomaryov and Others v Bulgaria ECHR 10-Feb-2009
. .
Cited by:
Cited – SG and Others, Regina (on The Application of) v Secretary of State for Work and Pensions SC 18-Mar-2015
The court was asked whether it was lawful for the Secretary of State to make subordinate legislation imposing a cap on the amount of welfare benefits which can be received by claimants in non-working households, equivalent to the net median earnings . .
Cited – SG and Others, Regina (on The Application of) v Secretary of State for Work and Pensions SC 18-Mar-2015
The court was asked whether it was lawful for the Secretary of State to make subordinate legislation imposing a cap on the amount of welfare benefits which can be received by claimants in non-working households, equivalent to the net median earnings . .
Cited – Tigere, Regina (on The Application of) v Secretary of State for Business, Innovation and Skills SC 29-Jul-2015
After increasing university fees, the student loan system was part funded by the government. They introduced limits to the availability of such loans, and a student must have been lawfully ordinarily resident in the UK for three years before the day . .
Lists of cited by and citing cases may be incomplete.
Human Rights, Education, Discrimination
Updated: 26 July 2022; Ref: scu.562087