Ms. Djemma Tsourova (Represented by Simon Mills, Barrister, acting on instruction from Free Legal Aid Centre) V The University Of Dublin, (Trinity College) (Represented by Senan Allen S.C. acting on instruction from Maxwells Solicitors)
Ms. Tsourova referred a claim to the Director of Equality Investigations under the Equal Status Act 2000 claiming that she was indirectly discriminated against when her application for a post-graduate course attracted fees applicable to non-EU applications. In accordance with her powers under section 75 of the Employment Equality Act, the Director then delegated the case to me, Bernadette Treanor, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part III of the Equal Status Act.
2. Summary of the Complainant's case
Ms. Tsourova arrived in Ireland in December 2000 and was declared a refugee on 31/8/2001 in accordance with Section 17(1)(a) of the Refugee Act 1996. She applied for an MSc. course in Trinity College and her application was accepted, but as a non-EU application. Applicable non-EU fees are much higher than equivalent EU fees. The Refugee Act, S3 states that "a refugee ...shall have access to education and training in the State in the like manner and to the like extent in all respects as an Irish citizen". Ms. Tsourova, through her representative, stated that Regulation 1.14 of Trinity College's General Academic Regulations for Graduate Studies and Higher Degrees sets out a number of conditions one of which must be satisfied so that the application can be accepted as an EU application, thereby attracting EU fees. While the residence requirement clearly applies to EU nationals and non-EU nationals alike, it is substantially more difficult for people in the category of refugee to comply with the requirement. The incorporation of a residence requirement into TCD's definition of EU national therefore constitutes indirect discrimination within the meaning of Section 3(c) of the Equal Status Act, 2000.
3. Summary of the Respondent's Case
Trinity College accepted that the complainant was entitled to have her application considered on the same criteria as those applicable to an Irish citizen. Regulation 1.14(e) is a supplemental provision made for refugees and they have the opportunity of complying with this subsection or any of the others applying to other applicants. The supplemental provision is in fact more favourable treatment of refugees in comparison with an Irish or EU national. The complainant was therefore, by virtue of her refugee status, entitled to more favourable treatment than an EU national. The respondent's rules do provide different treatment in relation to fees for admission to the college in relation to persons who are and are not nationals of a member state of the EU, but that different treatment is expressly permitted by S7(3)(d)(i) of the Equal Status Act, 2000.
4. Background
Ms. Tsourova applied for a declaration as a refugee in accordance with Section 17 of the Refugee Act 1996, as amended by the Immigration Act 1999 and the Illegal Immigrant (Trafficking) Act 2000. A recommendation was made by the Refugee Applications Commissioner that she fulfilled the definition of a refugee contained in Section 2 of the Refugee Act 1996 (as amended) and that she be given a declaration as a refugee following an investigation of her application under Section 11 of the Refugee Act 1996 (as amended). In accordance with Section 17(1)(a) of the Refugee Act 1996 (as amended) the Minister for Justice, Equality and Law Reform declared on 31/8/2001 that she was a refugee. Ms. Tsourova submitted a copy of the declaration to the Tribunal.
5. Legislation & Regulation1.14 TCD
5.1. The "ground of race"
Section 3(2)(h) describes the race ground as between two persons where they are of different race, colour, nationality or ethnic or national origins. As Ms. Tsourova is a Russian national and describes herself as being of Chechen-Ingush origin, I am satisfied that the race ground applies to her, particularly in respect of her nationality or ethnic or national origins.
5.2. Service Provider
In the Equal Status Act, 2000 'service' means a service or facility of any nature which is available to the public generally or a section of the public. A service provider is defined in Section 4.6 of the Equal Status Act, 2000 as follows: "(6) In this section-"provider of a service" means-......(e) an educational establishment within the meaning of subsection(1) of section 7 in relation to any of the matters referred to in subsection (2) of that section......"
Educational establishments, and how they shall not discriminate, are defined in Section 7 of the Equal Status Act, 2000, as follows: 7. -- (1) In this section "educational establishment" means a preschool service within the meaning of Part VII of the Child Care Act, 1991, a primary or post-primary school, an institution providing adult, continuing or further education, or a university or any other third-level or higher-level institution, whether or not supported by public funds. (2) An educational establishment shall not discriminate in relation to --
(a) the admission or the terms or conditions of admission of a person as a student to the establishment,
(b) the access of a student to any course, facility or benefit provided by the establishment,
(c) any other term or condition of participation in the establishment by a student, or
(d) the expulsion of a student from the establishment or any other sanction against the student.
(3) An educational establishment does not discriminate under subsection (2) by reason only that -- ......
(d) without prejudice to section 3 of the refugee Act, 1996 where the establishment is an institution providing adult, continuing or further education or a university or other third-level institution --
(i) it provides different treatment in relation to --
(I) fees for admission or attendance by persons who are nationals of a member state of the European Union and persons who are not, or
(II) the allocation of places at the establishment to those nationals and other nationals,
or ...
I am satisfied that TCD is a service provider in terms of the Equal Status Act, 2000 and Section 7 in particular.
5.3. Refugee Act, 1996, as amended.
Section 3 of the Refugee Act 1996 is as follows:
"3. -- (1) Subject to section 17(2), a refugee in relation to whom a declaration is in force shall be entitled to the same rights and privileges as those conferred by law on persons generally who are not Irish citizens (as distinct from such rights or privileges conferred on any particular person or group of such persons).
( 2 ) ( a ) Without prejudice to the generality of subsection (1), a refugee in relation to whom a declaration is in force --
(i) shall be entitled to seek and enter employment, to carry on any business, trade or profession and to have access to education and training in the State in the like manner and to the like extent in all respects as an Irish citizen, ......"
5.4. Indirect discrimination
The Equal Status Act, 2000 provides for indirect discrimination in Section 3 as follows:
"3. -- (1) For the purposes of this Act, discrimination shall be taken to occur where --
(c) (i) a person is in a category of persons who share a common characteristic by reason of which discrimination may, by virtue of paragraph (a), occur in respect of those persons,
(ii) the person is obliged by the provider of a service (within the meaning of section 4(6)) to comply with a condition (whether in the nature of a requirement, practice or otherwise) but is unable to do so,
(iii) substantially more people outside the category than within it are able to comply with the condition, and
(iv) the obligation to comply with the condition cannot be justified as being reasonable in all the circumstances of the case."
5.5. TCD Regulation 1.14, 2002
Regulation 1.14, as it was in September 2002, is as follows:
"Applications for admission are classified (approved by Board on 6th of May 1992) as EU applications or non-EU applications. An EU application is one made by a person who fulfils one or more of the following criteria:
(a) is permanently resident in the EU and who will have received full-time post primary education in the EU for three of the five years immediately preceding admission, or
(b) who is permanently resident in the EU and has worked full-time in the EU for three years immediately preceding admission, or
(c) who holds a passport from an EU state and has received all his/her full-time post primary education in the EU
(d) who holds a passport from an EU state and has received full/time post primary education in the EU for three of the five years immediately preceding admission, or
(e) who has official refugee status or has been granted humanitarian leave to remain in the State and has been resident in the EU for three years immediately preceding admission.
(f) Applications from children of EU government officials living abroad are treated as EU applicants. All other applications are considered to be non-EU applications."
6. Consideration of S3(1)(c), Indirect Discrimination, with respect to the complainant.
6.1. Category of persons, S3(1)(c)(i) Equal Status Act, 2000. People for whom a declaration as a refugee has issued are required to be treated in accordance with Section 3(2) of the Refugee Act, 1996 and this group constitutes a category of persons who share a common characteristic for the purposes of Section 3(1)(c). As the complainant has had a declaration as a refugee issued to her she is a member of the category and this satisfies the requirement in Section 3(1)(c)(i). Those persons in Ireland who do not have a declaration as a refugee, i.e. outside the category are made up of Irish nationals, EU nationals and non-EU nationals.
6.2. Obligation to comply with a condition S3(1)(c)(ii) Equal Status Act, 2000. As in 5(2) above I am satisfied that TCD is a service provider in terms of the Equal Status Act, 2000 and Section 7 in particular. Ms. Tsourova was required by the provider of the service, TCD, to comply with Regulation 1.14 of the Trinity College Regulations for Graduate Studies and Higher Degrees in order for her application to qualify as an EU application. It is useful to note at this point that a distinction is made by TCD in relation to an applicant being an EU national and an applicant successfully making an EU application, that is, EU
nationals will not always have their application accepted as an EU application and will not always qualify for EU fees. Consideration of each subsection of Regulation 1.14 in respect of Ms. Tsourova's application follow.
(a) is permanently resident in the EU and who will have received full-time post primary education in the EU for three of the five years immediately preceding admission, or
Ms. Tsourova stated that she is living in Ireland since December 2000 but since, at the time of her application, she had not been resident in Ireland for three years, she could not comply with the full-time post primary education requirement. The regulation does not indicate what evidence of residency would be required.
(b) who is permanently resident in the EU and has worked full-time in the EU for three years immediately preceding admission, or Ms. Tsourova stated that she is living in Ireland since December 2000 but since, at the time of her application, she had not been working in Ireland for three years, she could not comply with the three years full-time working requirement. The regulation does not indicate what evidence of residency would be required.
(c) who holds a passport from an EU state and has received all his/her full-time post primary education in the EU TCD accepted that this is equivalent to reading "who holds a passport from an EU state or has refugee status and has...". Therefore while Ms. Tsourova has a status equivalent to holding an EU passport for these purposes she could not comply with the requirement to have obtained all of her post-primary education in the EU.
(d) who holds a passport from an EU state and has received full/time post primary education in the EU for three of the five years immediately preceding admission, or
As above, while TCD accepted that Ms. Tsourova has a status equivalent to holding an EU passport for these purposes she could not comply with the requirement to have received three years post-primary EU education in three of the five years immediately before her application.
(e) who has official refugee status or has been granted humanitarian leave to remain in the State and has been resident in the EU for three years immediately preceding admission.
Ms. Tsourova was declared a refugee and 'has official refugee status' but was not resident in the EU for three years immediately preceding her application for admission.
(f) Applications from children of EU government officials living abroad are treated as EU applicants.
This subsection of the regulation relates to the children of a small subsection of EU nationals including, for example, diplomats posted abroad. Ms. Tsourova is not a child of an EU government official. In order for her application to qualify as an EU application, Ms. Tsourova was required to comply with Regulation 1.14 and was unable to do so. This satisfies S3(1)(c)(ii).
6.3. Compliance of those outside the category identified in 6.1 above, Section 3(1)(c)(iii)
This subsection requires that substantially more people outside of the category than within it are able to comply with the criteria. TCD argued that the inclusion of (e) constitutes more favourable treatment of refugees in comparison to persons of Irish nationality since refugees have the option or alternative of meeting a residence qualification while that option is not available to Irish or EU nationals. In practical terms this means that where residence is a qualification for an EU person it must be supported by full-time working also, in accordance with rule 1.14 (b). Refugees, on the other hand, are only required to meet the residency criteria, in accordance with 1.14 (e). The respondent stated that "The
complainant, by virtue of her refugee status, is entitled under the College Regulations to be treated more favourably than an EU National." Less favourable treatment is one of the fundamental issues to be considered when addressing direct discrimination. It is not relevant in respect of indirect discrimination. What is at issue is the ability or otherwise of the complainant to comply with the various conditions laid down. TCD was requested to provide statistical information in respect of post-graduate applications for the year 2002-2003. Some information was provided but not in a coherent manner allowing the comparison of applications from refugees and those from others. While the University stated that they do not ask applicants to disclose whether or not they have refugee status, they are clearly in a position to apply rule 1.14 to applications since they could indicate the following: "However, in 2002-03, three EU nationals who were offered a place did not satisfy any of the criteria governing an EU fee application, and these students were
designated as non-EU residents for fees purposes". While this appears to constitute the imputation of a nationality other than EU nationality on the three candidates, it clearly indicates that on the basis of information provided by candidates the University can apply Regulation 1.14. Therefore I do not accept the University's contention that it cannot identify the number of refugees whose applications were accepted as EU applications. They should at least be in a position to indicate the number who qualified under rule 1.14(e). On that basis I am satisfied that no refugees' applications qualified as EU applications under rule 1.14(e) in September 2002. The respondent, in its legal submission made the following point: "It is acknowledged that it is substantially more difficult for refugees to satisfy the residence, educational and working criteria required by the Regulation to
be met by EU Nationals." It goes on to say: "It is precisely the recognition of that difficulty that prompted the concession by the respondent of the supplemental provision for refugees in paragraph [1.14] (e)." While the University asserts that the supplemental provision was intended to address the imbalance that it accepts existed, the impact of this supplemental provision did not improve the success of refugees' applications in 2002-2003, as discussed above. The raison d'etre for the Regulation is to facilitate the classification of applications as EU or non-EU applications. The criteria in the Regulation appear to disproportionately impact of non-EU nationals, including refugees. It is worth
pointing out that the justification and defence for disproportionate impact on non-EU nationals generally and refugees in particular are different as discussed below. In my opinion, the number of Irish and EU nationals in Ireland is greater than the number of non-EU nationals in Ireland and they therefore constitute the greater number of persons outside the category of refugee. I am satisfied, in considering Regulation 1.14, that substantially more people, particularly Irish and EU nationals, who are outside the refugee category would have been able to comply with one or other part of the Regulation, in comparison with those who are inside the category. In other words, I am satisfied that substantially more people outside the category of refugee would have their applications designated as EU applications than the number of those within it. This satisfies the requirement in S3(1)(c)(iii)
6.4. Compliance reasonably justifiable, S3(1)(c)(iv)
Can the obligation to comply with the criteria be justified as reasonable in all the circumstances of the case? The argument's presented by the respondent related to their contention that Ms. Tsourova had her application treated in "the like manner and to the like extent in all respects as an Irish citizen"1 suggesting that once everyone is treated equally, the treatment must be acceptable. However no justification was presented by the respondent for the inclusion of the residency, educational or working requirements in the regulation with which Irish and EU nationals could more readily comply. The fact that TCD is statutorily obliged under section 3 of the Refugee Act, 1996 (as amended) to provide refugees, who have a declaration in force, with access to education "in the like manner in all respects" as an Irish citizen suggests that it cannot be justified in applying rules which have the effect of making it far more difficult for refugees than for Irish citizens to qualify for standard EU fees. The respondent stated in its submission: "The Respondent's rules do provide different treatment in relation to fees for admission by persons who are and are not nationals of a member state of the European Union but that different treatment is expressly permitted by Section 7(3)(d)(i) of the Equal Status Act, 2000." This, however, is to misunderstand either the 2000 Act, their own rule, or both. Their Regulation talks about EU applications and non-EU applications. The Act talks about EU nationals and non-EU nationals. The University does indeed apply different fees but this is not based on the applicant's actual nationality, but rather on TCD's designation of the application as an EU or non-EU application. TCD is clear that EU nationals may, in circumstances where they cannot satisfy Regulation 1.14, have their application designated a non-EU application. Ms. Tsourova's application, and indeed those of the three EU Nationals who "were designated as non-EU nationals for fees
1 Section 3(2)(a)(i) of Refugee Act, 1996.
purposes", were not treated differently in relation to fees because of their nationality, as is provided for in Section 7(3). Rather, they were treated differently based on residency, educational, and/or working requirements that were applied without reasonable justification. Section 7(3), which does allow direct or indirect discrimination against non-EU nationals, specifically provides that it is "without prejudice to section 3 of the Refugee
Act 1996." That means that TCD's obligation to provide refugees with access to education, equal in all respects to an Irish citizen, is not affected in any way by the contents of section 7(3). To qualify for standard EU fees the complainant was required to comply with Regulation 1.14 and she was unable to. I find that this cannot be justified as being reasonable in all the circumstances of this case.
Decision, DEC-S2004-162
I find that Trinity College indirectly discriminated against Ms. Tsourova, who was given a declaration as a refugee in Ireland, when her application for postgraduate study was designated a non-EU application for fees purposes in 2002.
Redress
I hereby order Trinity College to pay the complainant, Ms. Tsourova, €4000 for the effects of the discrimination
Bernadette Treanor
Equality Officer
5th November 2004