Transcript: Breaking barriers: Access to Education for Young Migrants, with Andy Sirel
Host: Jen Ang
Andy Sirel
“Access to education for migrants in Scotland has been something that was sort of on my casework radar for a very long time. And obviously for those eligible, we’re lucky enough in Scotland to have a situation where tuition fees are paid for by the government if you’re eligible, but access to that, to further and higher education is not equal.“
Jen Ang
Welcome to the Lawmanity Podcast where we explore the complex relationship between law and activism and discuss the different ways that law can oppress people but can also lead to real social change.
Jen Ang
Welcome everyone to the Lawmanity podcast. This week we’re speaking to legend, human rights lawyer and one of my very favourite people, Andy Sirel. Andy is a co-founding partner and legal director for the legal charity JustRight Scotland. He’s responsible for supervision of legal casework across a number of different areas of the charity’s work. In 2023 he was named Solicitor of the Year by the Herald Scotland Law Awards in recognition of his dedication throughout his legal career to using the law and human rights to achieve justice for people facing disadvantage, exclusion and discrimination. And for his groundbreaking work in challenging the exclusion of migrant young people in Scotland from tuition fee support in a case we will be discussing in today’s podcast. Welcome to the show, Andy.
Andy Sirel
Thank you very much for having me, you and looking forward to it.
Jen Ang
Great. So it’s lovely to see you and as I said at the start, this is such a great excuse to catch up as well because I can never have too much time with you, but you’re a very busy person.
Ah, as a kind of opener for this set of podcasts, I have been thinking about, a question that just gets us settled, and also helps us to learn a little bit about the person behind the legal legend we’re interviewing. A good friend of mine pointed out to me that our sense of smell is one of our oldest senses and observed that we can hold deep connections between our sense of smell and our memories. So if you don’t mind, can you tell me about a smell that’s meaningful to you?
Andy Sirel
That is a good question. I’d probably have a couple. the first one would be sun lotion because it reminds me frankly of being on holiday, in a sunny place that’s not Scotland. It’s not very often you apply it in Scotland. In fact, I don’t think I sell it here. but the second one would definitely be a freshly cut grass. Cause it just reminds me of like walking my dog in the evenings, sort of long, sunny, Scottish evenings. but the downside is that I have really bad hay fever, so I’m actually allergic to it. but nonetheless, nonetheless it does, it does give me good memories.
Jen Ang
Oh, the irony. And I love that. I love that both of those things are places and times that are far from your working desk. So holiday and after tools are down. I think that’s both relatable and also probably really healthy.
Andy Sirel
I think so.
Jen Ang
Cool. Well, thank you for indulging, my silly surprise question. so now we’ll kind of turn to, the topic of the podcast proper.
So, as I said before, we’re here to help listeners understand how the law can be used to achieve really significant change. and I’ve asked today that we look at your groundbreaking legal challenge in the Ola Jasim case against Scottish Ministers, which was a case where you established that the Scottish tuition fee regulations were in breach of the human right to education for some migrant people living in Scotland. And I wanted to see if we could talk to you about your role in that case, a little bit about your relationship with the wider Our Grades, Not Visas campaign.
And also your reflections. now, believe it or not, two and a half years on from, that case being hurt, that’s gone very quickly, those two years. So, to start with, for our listeners, can you just explain to us how you got involved with this case and actually what was at stake? So why was it that when you heard about this case, you thought that something had to be done and that it was actually litigation that was going to have to be the answer?
Andy Sirel
Yeah. Okay. So access to education for, for migrants in Scotland has been something that was sort of on my, casework radar for a very long time, probably dating back to about 2015, I would say. I mean, the issue is this. So everybody technically has a right to education in Scotland. They can access school, further higher education. And obviously for those eligible who’re lucky enough in Scotland to have a situation where tuition fees are paid for by the government if you’re eligible, but access to that, to, further and higher education is not equal.
The barrier is funding. Can you get the funding to go? And folks with some types of immigration status did not qualify for, Scottish government funding and did not qualify for what we call home fees status. They were treated essentially as international students. And of course, without funding or with a really high amount of tuition to pay, then you’re not going to be able to go. So, like I say, this was, an issue that was really prevalent in our work for a long time.
In 2015, there was a Supreme Court case about it that affected my casework. it was a case called Tigere or Tigere And, it introduced a criteria that said if you have a visa in the UK and you’ve lived here for a long time, then on the basis of your long residence you can get access to education. And so that changed the picture in Scotland a little bit. It allowed some people to have access to education, who are migrants, are from a migrant background, but really not everybody.
And so what we were seeing in our work was the community groups that we were working with and some of our clients actually at the time were very involved in activism and advocacy and they were raising the issue with the government. Time, time again, you know, directly to the Cabinet Secretary for Education, for example. And nothing was being done. Perhaps there was piecemeal progress, you would say. So the rules are being changed in reaction to world events like, you know, the Ukraine war, so Ukrainians were given access to education. Afghan resettlement schemes, Afghans were given access. But there was no broader recognition that, everybody else was basically being blocked out.
So we’re in a situation where it was very clearly an issue. The community groups were and the folks affected were deeply impacted by it and were trying their very best to sway the government but it just wasn’t working. So the reality is then that one of the, you know, you need to recognise one of the best tools in the shed, so to speak, is litigation, particularly litigation using the Human Rights Act, because that is a way in Scotland where you can challenge a lot and if you’re successful the law gets like ripped up and the government have to start again.
So, you know, we, I took the view, we took the view that we needed an individual in order to be the sort of standard bearer to take this case. And that’s not always the easiest thing because when you’re taking a case like this you need an individual, or with a really strong case. You know, to term it’s sometimes called as a good facts case. I don’t like that term particularly because anybody who’s affected by this should be able to have their day in court.
But we needed a really strong case to demonstrate like significant harm that this, that the education laws were causing. Because if we didn’t and we lose, then actually we’re back to square one and the government probably are unlikely to do anything.
And so we found a wonderful young person, who was referred to as by an MSP Her name is Ola and she was a straight A student out of school. She born in Iraq, lived here since she was just turned 11 years old so she moved just after she was 11. Educated here, you know obviously a very very clever person and got an unconditional offer to go and study at Dundee University to study medicine which is good because we need more medicine people, we need more medics, we need more doctors. And yeah she was told that she couldn’t study and couldn’t.
Well she was told that she couldn’t get student funding because in the first day of her course she was 17 years old and she needed to live in the UK for seven years and she’d lived in the UK for 58 days short of that. So she was so close and if she applied when she turned 18 she would have needed nine years. So actually the distance between her being able to access funding was just going tp grow and grow. So she didn’t apply for funding in the first year she went to university.
Dundee were really good the university they said you know we’ll just treat you as a home fee students or your fees are lower. But still her family were in real financial hardship in order to try and pay her fees. And then the second year she did apply you know after she met us and the student funding body said no you were not eligible on the first day of your first year. So you will never ever be eligible on this course. Even if you became British tomorrow you will never be eligible for this course. You need to stop and start again which was obviously grossly grossly unfair.
So you know she, she became the sort of standard bearer the public standamard be I should say through the case there was another case behind her that we had for another client of mine in slightly different circumstances. But the reason why we needed that individual is because that was the way we were re going to directly challenge the law. But you’re not going to be able to create progressive change with just a legal case. You need something else. And this is where the campaign came in.
The Our Grades Not Visas campaign founded by a young called Ahmed Al Hindi who was a six year pupil at the time. also affected by these strict access to education regulations and together with Maryhill Integration Network JustRight Scotland we set up this campaign which started raising the profile of the issue. It started directly engaging the Scottish government. It was doing media but really importantly it did a survey asking folks in Scotland you know are you affected by this? Tell us your story. And that gave us lots and lots of rich data and it told us that these rules were actually impacting hundreds and hundreds and hundreds of people in Scotland. So, you know, the idea was that we took the individual legal case, we took the campaign, we put them together and we see where things go from there.
BBC Anchor
Let’s talk about another issue involving refugees living here. Scottish Ministers are being forced to change the law on tuition fees for hundreds of migrant students after a landmark court case.Lawyers successfully argued that Ola Jasim from Iraq who’d lived in Scotland for more than nine years did have her human rights breached. The straight A pupil was told she couldn’t access tuition fees because she missed out on the time threshold by just 56 days. The Scottish government says it is committed to a fair funding system.
Ola Jasim
This is what like I call my home. So to me I’m a Scottish citizen and so to be told that no you’re not and like I’m not getting the treatment as all my friends who I want to primary like since primary school with until high school we graduated together just to be discriminated against like that, that kind of just made me feel, kind of like, feel like unwelcome. My sisters for example, for their birthday, they just didn’t want to celebrate it because they’re like o, you know, like we don’t need to buy a cake even like for me, myself I just felt like all of these things were just extra things and like we need to save money on those things. But it’s like these are little things that kind of give you joy in life and like just keep you going. Now that I know that it’s like if the law is changing and hopefully there will be compensation for people who are affected. Hopefully like a lot of people’s lives will be changed because this isn’t just me that’s gotten really badly affected. There’s so many people out there.
Jen Ang
And I mean, that is so interesting actually both, you know, how you outline for listeners, you know, the thinking that goes into, you know, working out what a strategic case looks like and when it is appropriate to take one, but also that relationship between the legal work and the campaign, which has been really visible actually throughout, not just the case, but what has happened afterwards.
So I guess my question is, were there challenges in, in preparing the case or in coordinating with the campaign?
Andy Sirel
Yeah, that’s a good question. So I think that the campaign and the litigation were complementary to each other and there was a lot of cross coordination, but they were also separate. So for example, the founder of the campaign, Ahmed, was not a litigant in the case. we aren’t talking about his situation at all in the court action. Ah. And you know, we need, we always need these situations to be careful and make sure that the campaign see themselves as distinct from the litigation. we need the litigation to remain, own, its own thing and focusing on the strengths of the particular person that we had. the campaign was also slightly broader.
It was looking not just at, ah, migrants with leave to remain, which is what the case was about, but it was also looking at asylum seekers. And so, you know, we needed also to make sure that there was some distinction there. Because I think if we were in court arguing, you know, fundamentally a human rights case for asylum seekers to get access to student funding, then that would change the nature of the case entirely. It would possibly have resulted in a different outcome. So again, we needed to keep the two things, separate there. I think the final challenge would be, you know, finding the time to sort of input the technical information to allow the campaign to do its thing. You know, this is what the law says, this is what it doesn’t say, et cetera, but. And also actually run the legal case at the same time.
But as you say, we have very dedicated staff and yeah, we had, you know, our participation manager was the person that was running point for JustRight Scotland on the campaign. And that allowed me to sort of get my head down with my colleague Maisie and and our advocate in order to follow through the case. The last thing I’d say is that the case attracted a lot of media attention. and you know, as a lawyer, you’re. I’m typically cautious around media attention because you just don’t know how it’s going to be spun. we turned down a lot of media requests from outlets that we know go just been in certain things in a certain way.
But yeah, we were able to form a really good relationship with a particular journalist, who you know, told it like it is. That’s all we asked, just to tell it like it is. And you. We wanted also to be very careful and, and very, very protective of my clients in general. But I was very protective to this particular client to make sure that she wasn’t subject to any unpleasantness in the public eye. And thankfully we were able to navigate that, probably all down to the fact that she’s a far better media performer than I am and and performed impeccably. So yeah, those were some of the challenges that we needed to navigate as we were going through it.
Jen Ang
So just to make sure that our listeners understand, can you kind of briefly summarise what was the outcome of the actual case and what was the significance both for your client and then for other people like her?
Andy Sirel
Sure. So the case was challenging the parts of the funding regulations that said if you’ve got leave to remain in the uk, that isn’t permanent, so limited leave to remain, then, and you’re under 18 on the first day of your course, you need to have lived in the UK for seven years and if you’re over 18 you need to live in the UK for half your life. so those were the two parts of the rules that we were challenging. We were saying, you know, this long residence is actually really exclusion rate for a lot of people who are, you know, educated and raised in Scotland.
One of the other cases that we had actually was a young guy who was in care, he was raised by the state and then when he sought to access education, the state said no, you can’t access education, which is plainly wrong. So we were arguing, you know, four fundamental questions which your listeners might really chew over, to be honest with you.
The first one is to what extent is your length of residence in a place and appropriate measure of how integrated you are into your country? So if you’ve lived in Scotland for six years, 300 days, are you less integrated than you are having lived in the UK for 366 days? Probably not.
The second question was is it fair that there’s that cliff edge, you know, 17 year old needs, 7 years and 18 year old needs many years. Is it fair that there’s that cliff edge for young people who are the same person on the 18th birthday as the bear and the last day of their 17th year? And we were asking, is that year one rule fair? You know, if you’re ineligible in day one, year one, even if you become British, you will never be eligible for student funding. Is that fair?
And then fundamentally the ultimate question to the court was, is this a violation of the right to access education guaranteed by Article 2, Protocol 1 of the European Convention, and is it discriminatory on the basis of immigration status? And the court said to those questions, yes, it is discriminatory, yes, it is a violation of the right to education. and so they struck down those elements of the law. and this was a huge, you know, this was a, a huge win and a real recognition of the toil and the harm that it had caused Ola and her family.
But, the upshot of it was that the government, Scottish government, needed to do two things really quickly. The first thing they needed to do was they needed to set up an interim scheme because you had hundreds of students in the last two academic years who had not been, who had not applied or who had applied for funding, had been refused illegally. And so they set up a scheme to basically pay them, give them the tuition that they should have got in the first place.
Second thing they need to do is think about this new law. The old law’s been struck down, we need a new one. So they needed to do an impact assessment to understand who and how people were affected. And they needed to do a public consultation to see what law would like. And this is where the campaign kicks in. Okay? This is where, this is where we need to understand the relationship in our litigation. And a campaign, the litigation opens the door, unlocks it and the campaign walks right through it. And the campaign, the campaign really stepped up here.
So we in order to reply to the impact assessment and the public consultation, so we JustRight Scotland, where, you know, we’re going to town hall events, where we’re hosting information sessions for folks affected just so they understood what the law, how the law was changing, what the court said, what the court didn’t see, and where those sort of pressure points are that they can really advance their views and express themselves about how it affects them.
And so the groups themselves, they organised, they responded to the consultation. And I have to say, when I heard some of the things they were asking for in the law, I did think that is admirable. I feel it’s unlikely because that’s not what the court said. but that just reveals my sort of ah, legal box which I view the world because I was totally wrong. And the upshot was that the Scottish Government passed a new law which came into force in August 2023.
So we’re coming up to the two year anniversary which abolished the long residence criteria altogether and just replaced it with the standard three year residence requirement that everybody has. Right. If you’re British or non British, everybody has this to access tuition in Scotland. And secondly it extended tuition fee support to asylum seeking children, both unaccompanied asylum seeking children and the kids of asylum seekers. and that was huge. That was an extension beyond which was even considered in the court case. It was just a pure result of quality and coordinated advocacy and campaigning. And that’s where we are now.
Jen Ang
That’s fantastic. And I love your kind of, your modest reflection about, your feelings about asking for more politically, than a legal case required. But it was a triumph of the campaign and also just a really wonderful result that in this particular case, and this doesn’t always happen, you know, the success in the legal case did open the door, as you said, ah, for a political decision, that was broader and that reached many, many more people, than actually the narrow holding of the judgement. So, it is a great thing to remember and reflect on, even though we are two and a half years down the line. So I’m going to kind of pull together the next two questions in a one or really.
So you have spoken a lot about the wider impact that the case has already had. and I guess I just wanted your reflections. I think people find this interesting as the person who led the case, if this came to you again today, would you run it the same? But also, do you think the outcome would be the same or different or, you know, just your thoughts on. And have things changed in the last few years? Do you think?
Andy Sirel
That is a good question. I mean, I think that there would be a temptation to gather loads and loads and loads of evidence and demonstrate, you know, in a great deal of detail, you know, then that hundreds and hundreds of 100 people are impacted because doesn’t, present that as part of the case. We didn’t actually include some of the survey stuff in the case. We really did focus down on Ola as an individual and her family. and there’s a temptation to think, well, if we are able to show the broader impact, and then that would, you know, that would be a smart thing to do in the case.
But then when I was thinking about this, you know, there’s also the chance that that gives something to the other side. They can say, well, you know, this is not a small thing we’re talking about here. This is a lot of public money we’re talking about here. you know, and the governments tend to have quite a wide discretion in the legal term we use as margin of appreciation. It just means that the courts give quite a lot of like, deference and latitude to governments about how they spend public money, especially in social, issues like education.
And so, you know, you always need to think, am I doing something? And what are the unintended consequences of it? Is that actually the right way to go about it? and so, yeah, if I’m honest with you, I would probably think that Would kind of caught the sweet spot with with the case that we brought, but that was 10 years in the making. You know, I’d worked with many, many individuals who had been blocked from education and their cases probably weren’t strong enough to get us over the line. And if you think about it in I alternate universe we had this wonderful campaign and all the media and then we lost the case. You know, there’s no guarantee at all that we would have got to where we got to. In fact probably, probably we wouldn’t have done because the government were very clearly defending it.
So yeah, it’s difficult, it’s difficult to say whether it would have been a different, a different outcome. But I mean the impact of it is beyond what I could have expected, particularly the inclusion of asylum seeking young people. And I mean I’ve seen it in m. My day to day since you know there’s a. We’ve some other clients of our organisation whose kids are now at university that you know, the mums and dads are still in the asylum system but they’re all now studying, you know, X, Y and Z, at university which they just weren’t able to do two years ago. and even myself, you know I do some teaching at different institutions from time to time and I. On two occasions in the last 18 months or so I’ve I’ve had students in the class come up to me afterwards and say, you know, I’m actually here because of that judgement, and that campaign, which is very. Which I have say is very nice if not slightly surreal.
Jen Ang
I have to say that’s. No, that’s amazing and well deserved. and just underscore what you said, you know, I agree. what’s not visible to the public is actually how long you can be thinking about working up a case or how long you can be aware of an issue before the right case actually comes. And because obviously it’s only when the case hits the press and you know most of the work is done. The rest of the world is alive to the idea unfortunately, sometimes to our opponents as well. It’s only when the case, it’s depressed that they’re fully paying attention.
So onto my last question, which is what more needs to be done to secure justice for people like Ola and the other young people that you’ve worked with.
Andy Sirel
Yeah, I mean there’s a very clear one for me. So there is some unfinished business that one of the things we attempted to argue in the case or we argued in the case, but it didn’t, it didn’t come through in the final judgement, was that there needs to be an our view anyway, some form of discretion. You know, remember, Ola was only 58 days short. You know, the other young person we’re working for was about 65 days short. And know, okay, there needs to be a line in the sand because you need to determine, you need to draw the line somewhere.
But for exceptional cases, not having any discretion at all, is I, think unfair. And I’ll give you an example. We’re working with an individual right now who is a British citizen, and also a Sudanese citizen. And he and his family were evacuated from Sudan because of the outbreak of the war. And he arrived in the, in Scotland, in 2023, sought to access, ah, an education course here, and was told, oh, you’ve not lived here for three years. you know, you’re a British citizen, but you’ve not lived here for three years, so you’re an international student. And he said, well know I’m a British citizen and you know, the only reason that I’m not, I, wasn’t here for three years is because I was in Sudan. And you know, you’ve evacuated me and the rules say, well no, now here’s the thing. If he was not British, he could go through the asylum process and become a refugee and I get access to education straight away. if he had fled Ukraine, in the rules, there’s something for British nationals. You know, if you were British and you were in Ukraine, you can now access education. If he was from Afghanistan, if you lived in Afghanistan, it would be the same thing, but there’s nothing for Sudan. and you know,
I’m probably not in favour of just the government bolting on new exceptions to the regulations. I’m in favour of somebody looking at his case and saying, yeah, you’re a de facto refugee, and it’s not fair and you should be able to access education here. So there’s still some stuff left and we’re gonna have a go at his case and see where it gets to. But yeah, I think that I suppose the last thing I’d say is that the law is really complicated in this area. It’s hard for people to manage it. It’s hard for me to wade through all the regulations. I don’t know how people do it by themselves. the colleges find it difficult. So the Government finds it difficult, and we need to have something that’s a bit more consolidated. So, you know, as ever, as ever, we’re not quite at the end of the road, yet. But that doesn’t mean to say we shouldn’t m. be grateful for the wins that have come so forth
Jen Ang
Absolutely. Well, I mean, I’m told on the idea that it would be useful for the decision maker to have discretion, but it would also be. It would be ironic if, after the intervention of a lawyer, the law was actually simplified. but I have no doubt that if anyone can do it, you can fire Bas. So good luck for that case, and, you know, and thank you so much for your time. You’ve been super generous.
I just have one final question for you, and that’s this. So there will be listeners, who tune into this podcast because, you know, they admire the work that, legal legends like you do. and so the question for them and for me is, what advice might you have for someone out there who could be a younger version of you or who’s looking at what you’ve accomplished today and wants to be you, basically, what would you say to them, at an earlier stage in their career about what they should be doing?
Andy Sirel
Oh, that’s a very embarrassing question. I would say, you need to be positive. You need to look for opportunities where other people see negatives. and I think that is something that, not everyone’s able to do, but, you know, we can if we try. and if I’m honest with you, you need to treat everybody, regardless of who they are, regardless of status or position or seniority or age or anything. You need to treat everybody the same with dignity, courtesy, interest. And only by doing that, do you learn a lot. You, are. You obtain people’s trust, and you’re honest, and then doors open and opportunities present themselves, but only by doing that and do you get their trust. And that is actually, you know, things go from there. So that those are the sort of very simple pieces of advice I would give.
Jen Ang
Amazing. I mean, thank you for that wise counsel. And having known you for a long time, I know that you absolutely live those values. and. And I think. I think. I think they do. I think they do work. So I’m one of those lucky people, who’s had the opportunity to know you, and also to have called on, ah, that relationship to ask you to spend this time with us. But I think it’s been really interesting and and’positive that people will find lots of bits to take away from this. So thanks again for your time today. and yeah, I hope you have a great afternoon. Maybe get to enjoy that freshly caught grass smell before the rain comes again. yeah. And I look forward to catching up with you again soon.
Andy Sirel
Thanks very much, Jen Take care.
Jen Ang
Thanks so much to you, the listener, for tuning in to the Lawmanity Podcast.
In our next episode we’ll be speaking to Maria McCloskey, former director solicitor at the Public Interest Litigation Support Unit in Northern Ireland, about litigation she led to support a community opposing the building of a major terminal on the shores of a peaceful rural coastal area of the Belfast Lough. The Stop Whitehead Oil Terminal case. If you loved this podcast, please do hit the subscribe button and also like and share our episodes with friends and colleagues who might enjoy learning a little bit more about how the law really works in practise and how it can be used to make the world a better, brighter place.
Our podcast has been generously supported by a grant from the Clark Foundation for Legal Education. The Lawmanity Podcast is co produced by me, your host Jen Ang and by the brilliant and talented Natalia Uribe. And the music you’ve been listening to is Always on the Move by Musicians in Exile, a Glasgow based music project led by people seeking refuge in Scotland.
Recorded 23 May 2025
