>> Andy Sirel: Access to education for, 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 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 case work 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, Jen. 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. 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. 's not very often you apply it in Scotland.

In fact, I don't think they sell it here. but the second one would definitely be freshly cut grass because 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 o the irony. >> Jen Ang: 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: Really healthy. >> 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 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, 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. And 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 ah, 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. There was piecemeal progress, you would say. So the rules are being changed in reaction to world events like 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 were 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 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 ripped up and the government have to start again. So, you know,

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.

Know the 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, obviously a very, very clever person and got an unconditional offer to go and study at Dundee

University to study medicine, which is good cause 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 toa 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 we'll just treat you as a home feeent so your fees are lower. But still our family were in real financial hardship in order to try and pay her fees. And then the second year she did apply year 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 standard bearer I should say to the case. There was another case behind her that we had for another client of mine in slightly different circumstances. but the, the reason why we needed that individual is because that was the way we were 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 chap called Ahmed Al Hindi who is a six year pupil at the time. also affected by these strict access to education regulations. and together with Maryhill

Integration Network and 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? How are you affected? 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.

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's 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 and 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, oh, you know, we don't need to buy a cake even like for me, myself, like, 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 lot 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 and you know, the thinking that goes into, you know, working out what is strategic case looks like and when it is appropriate to take one. But also that interrelationship between the legal work and the campaign, which has been really visible actually throughout, not just the case, but you know, what has happened afterwards. So I guess my question is, were there challenges in preparing the case or in coordinating with the campaign? >> Andy Sirel: Yeah, it'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 weren't talking about his situation at all in the court action

And we always need in these situations to be careful and make sure that the campaign see themselves as distinct from the litigation. we need the litigation to remain, its 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 ah, at 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 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, etc. 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 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. 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 going to spin 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 very, very protective of my clients in general. But I was very protective of 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, 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 leaves 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 this long residence is actually really exclusionary for a lot of people who are 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 an 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 360 to 6 days? Probably not. The second question was, is it fair that there's that cliff edge, a 17 year old needs 7 years and 18 year old needs 9 years. Is it fair that there's, that cliff edge for young people who are the same person on the 18th birthday as to be in the last day of their 17th year? 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 for 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 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, this was age, 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 their tuition that they should have got in the first place.

Second thing they need to do was think about this new law.

The old law has been strucked 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 the new law would like.

And this is where the campaign kicks in.

Okay, this where, this is where we need to understand the, 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 in order to reply to the impact assessment and the public consultation. So we JustRight Scotland, 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 legal box in 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: M 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, 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 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 toa 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, you know, 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, 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 in a great deal of detail then hundreds and hundreds or hundreds of people are impacted because there 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, 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, 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. and the governments tend to have quite a wide discretion in the legal term we use is margin of appreciation. It just means that the courts give quite a lot of like difference and latitude to governments about how they spend public money, especially in social issues like, 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 the case that we brought, but that was 10 years in the making. I'd worked with 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 and an alternate universe. We 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 was very clearly defending it. So yeah, it's difficult, it's difficult to say whether 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, of asylum seeking young people. And I mean I've seen it in my day to day since, you know, we've some other clients of our organisation whose kids are now at university that you know, their 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 ah, different institutions from time to time and I, on two occasions in the last 18 months or so, 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 to say is very nice if not slightly surreal. Have to say that. >> Jen Ang: No, that's amazing and well deserved. and just to 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 theress that they're fully paying attention. So on to 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.

One of the things we attempted to argue in the case or we argued in the case but it didn't come through in the final judgement was that there needs to be in our view anyway some form of discretion. You know, remember ola was only 58 days short. You know, the other young person we'working for was about 65 days short.

And okay, there needs to be a line in the sand because you need 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 I'm a British citizen and the only reason that I, not

I, wasn't here for three years is because I was in Sudan and you've evacuated me.

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.

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

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 going toa 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 ah, the law is really complicated in this area.

It's hard for people to manage it. If 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, 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 be grateful for the wins that have come so far. >> 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 best. 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, League of 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 m. What they should be doing? >> Andy Sirel: Well, 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 obtain people's trust, and you're honest, and then doors open and opportunities present themselves. But only by doing that do you get their trust. And that is actually, you. Things go from there.

So those are the sort of very simple piece 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 love those values. and I think they. I think they.

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 I'm 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

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Podcast is co produced by me, your host Jen Ang and by the brilliant and talented Natalia Uribe.

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