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Queen's University
 

Orphanos

College's residency requirement discriminates against a Cypriot student on the ground of nationality.

Facts

In 1982, there was a two-tiered tuition system in the UK; home students paid one fee, overseas students paid another, much higher, fee. This is because the government provided colleges and universities with a large subsidy for home students, but with no such subsidy for overseas students. In order to be admitted as a "home student", an applicant had to establish that he or she had been "ordinarily resident" (i.e. residing for all "ordinary purposes") in the UK or any other E.E.C. country for the three years prior to September 1982. At the time, education was not considered to be an "ordinary purpose" for staying in a place. Therefore, if an applicant had been residing in the area solely for the purpose of education, he or she did not pass the residency requirement and was liable to pay the overseas student rate.  In December 1982, however, the definition of "ordinarily resident" was modified to include "residing for the purpose of education" thanks to the Shah ruling from the House of Lords (c.f. R.v. Barnet London Borough Council, Ex parte Shah, [1982] Q.B. 688)

In March 1982, Queen Mary College sent a letter to its overseas applicants. The letter informed them that due to their failure to meet a residency requirement, they would be liable to pay overseas tuition fees if they chose to register for courses in the fall. One of the students on the mailing list was Mr. Orphanos, a Cypriot citizen of Greek nationality who had been residing in the UK since 1978 for the purpose of education. He appealed to the college, without success, to be considered a home student.  Reluctantly, he did register in October 1982 for a three-year program Mechanical Engineering and paid for one semester's tuition at the overseas student rate. When the Shah ruling came down in December, he went to court to make a claim against the college. First of all, he maintained that he was not liable to pay the overseas tuition fee since, according to the Shah judgment, he now satisfied the residency requirement.  He also claimed that the college had discriminated against him on racial grounds contrary to the Race Relations Act, and that he was therefore entitled to either restitution of the excess tuition paid for the first half year's fees or to damages. (Orphanos v Queen Mary College (1985) IRLR 349, HL)

Issues

  1. Was the student liable to pay overseas fees ?
  2. Did the college discriminate against the student on racial grounds, contrary to the Race Relations Act 1976?
  3. If yes, should the college be required to pay the student restitution or damages ?

Rulings

  1. Yes
  2. Yes
  3. No

Reasoning

  1. Mr. Orphanos and the College had a contract, the terms of which were presented by the college when they stated in the letter of March 1982 that "if you join the college in October 1982 you will be classed as an overseas student and will be liable to pay fees at the overseas rate".  In October 1982, Mr Orphanos concluded the contract when he enrolled at the college. He was therefore liable to pay overseas fees.  
  2. Section 1 (1) (b) (ii) of the Race Relations Act states that it is unlawful for one person to apply to another person a requirement which can not be justified  "[...] irrespective of the colour, race, nationality or ethnic or national origins of the person to whom it is applied".  In this case, Queen Mary College could not justify its residency requirement irrespective of nationality because "in the present case the discrimination is in accordance with a policy directed against persons who are not ordinarily resident in the EEC area, and ordinary residence is in my view so closely related to their nationality that the discrimination cannot be justified irrespective of nationality." (paragraph 20)   The college was discriminating unlawfully against applicants who were not of British or EEC nationality, contrary to the Race Relations Act.
  3. Section 72 of the Race Relations Act distinguishes between terms that render the making of a contract unlawful and terms that result in the discrimination of one of the parties to the contract. Terms that render the making of a contract unlawful are void whereas those that result in the discrimination of one of the parties are unenforceable against the party who had been discriminated against. In the Orphanos case, the inclusion of the discriminatory residency requirement did not render the making of the contract unlawful, but it did result in an act of discrimination against Orphanos. Therefore the term was not void, but unenforceable. This was not enough to entitle Orphanos to restitution of the amount.
 

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