Foreign student fees: discrimination that cannot be justified

What is it about discrimination on grounds of national origin that makes it so repulsive? Is it the way racists tend to look, the people they associate with or the newspapers they read? (Not that one would wish to stereotype.) Or is it because such discrimination is so irrational? Where is the logic in treating some people worse than others because of their nationality?

There are accepted and logically justifiable exceptions to the rule that discrimination on the grounds of national origin is wrong: the concept of the enemy alien in wartime, for example, and in employment law, the genuine occupational qualification. But the most blatant exception is in higher education, in differential fees for overseas students.

The Race Relations Act in 1976 generally outlawed discrimination on grounds of national origin, but there were exceptions for actions approved by the secretary of state, such as charging foreign students higher fees.

Early in its first term, the Thatcher government published a White Paper announcing that overseas students starting courses from September 1980 would meet the full cost of their tuition, and this was backed up in 1983 with legislation. (This was challenged in 1985 by a Cypriot student of mechanical engineering who unsuccessfully sued Queen Mary College, asking to be classified as a home student.)

Also in 1983, in order to comply with rules about freedom of movement and establishment set by the European Economic Community, the rule was changed so that it did not apply to students ordinarily resident in other EEC (from 1995, European Union) and European Economic Area countries.

So it is not unlawful to charge overseas students higher fees than have to be paid by UK or other EU students. To say that UK universities have cashed in would be unkind; some might not be able to continue if fees from overseas students were stripped out. So what is the moral (as distinct from legal) justification for treating overseas students differently?

The argument usually advanced is not so much moral as economic. Overseas students, it is argued, have not contributed economically to UK universities. But nor have non-mature UK students: a few might have paid some National Insurance contributions or even income tax before entering higher education, but hardly enough to make much difference. So that argument does not stand up.

In that case, it is argued, the overseas students' parents will probably not have paid taxes to fund UK public provision, whereas UK students' parents will have. But access to UK higher education is not conditional on your parents having paid taxes. You can get into university however impoverished your parents (although the government seems to be doing something about that) and you can get in if your rich parents have arranged their affairs so that they have paid little or no UK tax. So that argument won't wash either.

The next proposition - that only the UK students' ancestors will have contributed - is more plausible. Higher education in the UK may be funded out of current taxation, but universities' premises, infrastructure and staff will have been built up over decades, even centuries, from both public and private money. So, runs the argument, a university is a piece of property that the nation owns, and the differential fee is the price the overseas student pays to access it: compare it to the NHS, which charges visitors from abroad who want non-emergency treatment (treatment in emergency or for mental ill-health is free on humanitarian grounds).

But if there is such a principle, it's not universally applied. Be they tourists, students, workers or asylum seekers, we don't charge foreign visitors extra to use public transport, listen to or watch the BBC, use the water supply or enjoy the slide in the local park. So why should higher education be different?

Charging higher fees to overseas students is frankly discriminatory, and moral arguments to defend the practice are weak.

Our attitudes to people from abroad are inconsistent. We profess to abhor discrimination, yet we have immigration laws to keep other people out, be they refugees, economic migrants or people just looking for a better quality of life. We welcome them only if they are tourists (bringing in money), workers (willing to do work we do not fancy or do not have the skills to do) or students (who can be charged higher fees). Higher education now has boundaries and they are patrolled by the UK Border Agency.

There is a similar inconsistency about our attitude to education as a human right. In Europe, the human right to education has been limited to a right to whatever education happens to be on offer in the state of which you are a citizen. There is no human right to any form of education that may be available in another state. One of the things that goes with national sovereignty is the power to keep out students from other states, and a corollary of that is that you can charge over the internal going rate to let them in.

The human right to education must be the only one that requires money to buy it. Is that really what we have signed up for?