Access to free early education for eligible two-year-olds extended to migrant families
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Marc Bloomfield
Two recent judicial review challenges have successfully extended the entitlement to free nursery education for two-year-olds to a number of migrant families who had previously been unable to access this important provision.
Childcare Act 2006 s7(1) requires local authorities to make free early years education available to eligible children. The current eligibility criteria are to be found in the Local Authority (Duty to Secure Early Years Provision Free of Charge) Regulations 2014 SI No 2147 (the 2014 Regs); they were intended to target the poorest two-year-olds in light of evidence that early years education significantly increases their life chances. But those criteria exclude the children of some migrant families who are among the poorest households in the UK.
Judicial review proceedings were issued earlier this year by both Central England Law Centre and Matthew Gold & Co on behalf of two such families. At the heart of the challenges was the argument that the exclusion of two-year-olds on the basis of their immigration status constituted an unjustified difference in treatment and also frustrated the statutory purpose of the scheme. Article 2 Protocol No 1 and article 14 of the European Convention on Human Rights together enshrine the right of access to educational provision without discrimination.
The education secretary settled both claims. The joint effect of the two consent orders is that the following groups of two-year-olds are now immediately eligible for free nursery education:
those whose parents claim support under Immigration and Asylum Act (IAA) 1999 s4 (which is often accessed by those whose initial asylum claim failed but who have submitted a fresh claim); and
those who would be entitled to free early education provision if the normal financial criteria under the 2014 Regs were applied and their parents were entitled to access public funds, and the parents either:
(a)satisfy the criteria for a derivative right to reside under Immigration (European Economic Area) Regulations 2016 SI No 1052 reg 16(5), whether or not they have applied to the Home Office for confirmation of that status (which includes Zambrano carers); or
(b)have been granted leave to remain on article 8 private and family life grounds, but with a condition of no recourse to public funds.
There was no need to tackle the issue on behalf of families in receipt of support under IAA 1999 s95 (which is available to asylum-seekers) because two-year-olds of such families were already eligible under the 2014 Regs.
In spite of the successful judicial reviews, the 2014 Regs are yet to be amended, and, on their face, continue to exclude these children from the entitlement to free nursery education. This is because the Department for Education (DfE) said that it wanted to consult on other possible changes before undertaking those amendments.
This leaves a dangerous gap between what the law appears to be and the rights that vulnerable young children actually have. In order to try to plug that gap, the consent orders oblige the education secretary to ‘require’ local authorities to provide free nursery education to these groups, even though the 2014 Regs do not include them.
Implementation by the DfE has taken the form of interim guidance trialled until 30 November 2019,1Extending eligibility for the free early education entitlement for two year olds: Department for Education guidance on assessing eligibility for a free place, 30 August 2019. following which it will be reissued taking into account feedback. Although the guidance does require local authorities to treat these children as eligible children, it expressly permits them to refrain from undertaking any outreach to find them (see para 10, page 2).
This creates real and continuing risks that: eligible children who ought to benefit will not do so because their parents are not aware of their rights; advisers who rely on the 2014 Regs will not realise that they are unlawful; and local authorities that should know may not disseminate information about the extended eligibility to frontline staff effectively or may not, in fact, have any contact with the families concerned.
Law students from the University of Warwick are therefore working alongside the Public Law Team at Central England Law Centre and Matthew Gold on a project to publicise the true position to advisers and others who may have contact with the affected families. They are also monitoring the steps being taken by local authorities. This is the inaugural project of the Strategic Public Law Clinic, a new joint initiative between the Law Centre and the Centre for Human Rights in Practice at the University of Warwick School of Law. The clinic is keen to receive feedback from anyone who has information about the implementation of these new rights and can be contacted by email to the supervising solicitor: karen.ashton@centralenglandlc.org.uk. Megan Ward (megan.ward@centralenglandlc.org.uk) of the Law Centre’s Public Law Team and Rachel Etheridge (rachel@matthewgold.co.uk) of Matthew Gold can be contacted about referrals of families who are continuing to experience difficulties.

About the author(s)

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Olivia Stanek is a student with the Strategic Public Law Clinic, Central England Law Centre and the Centre for Human Rights in Practice at the...
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Kye Li Ong is a student with the Strategic Public Law Clinic, Central England Law Centre and the Centre for Human Rights in Practice at the University...