IRELAND: Student's High Court challenge fails

A Dublin student has failed in a High Court bid to 'buy' a place in an Irish undergraduate medical school in the same way non-EU students can at present. Frank Prendergast is now preparing a Supreme Court appeal in a test case which has ramifications for selection of candidates across all disciplines.

Prendergast's challenge is backed by a high-powered legal team, including a former Attorney General and Minister for Justice Michael McDowell SC. If it fails, the matter may go to the European Court of Justice.

Just over half the 4,000 students in Ireland's five medical schools come from outside the European Union, paying tuition fees of up to EUR45,000 (US$67,000) a year. The income effectively subsidises the education of Irish and other EU students who get their tuition for nothing. However, the state grant in lieu of tuition fees is considerably less than the economic cost - hence the reliance of the schools on income from non-EU students, most of whom come from the US, Malaysia and the Middle East.

There is a 'cap' on the number of places available to Irish and EU applicants and it is this that led to the challenge by Prendergast. He had narrowly missed a place in the intense competition among Irish applicants for entry which, as of now, is decided solely on the basis of academic results in the Leaving Certificate, a terminal examination for high school students.

Prendergast approached each of the undergraduate medical schools, offering to pay the same tuition fees that non-EU students pay but was rejected by all five. When that failed, he mounted his High Court challenge, arguing that non-EU students with lower academic qualifications were able to buy their way into an Irish medical school whereas Irish citizens and EU nationals could not.

In his ruling Mr Justice Peter Charleton said the change advocated would result in a "market free-for-all based on money" and upset the principle of equality of access to education. Such a change would not accord with the constitutional principles of prudence or charity and would "do nothing towards furthering the constitutional aim of true social order", he added.

The High Court hearing was told that through the 1990s, the number of foreign students steadily crept up and, by 2006, some 40% of places were allocated to EU students while 60% were allocated to non-EU students. In hospitals, the number of non-consultant doctors from outside the EU rose from 13% in 1984 to about 60% last year.

The judge accepted that changes are being introduced whereby the number of places for Irish and other EU students are being increased substantially, where a new graduate school has opened at the University of Limerick and where aptitude tests will be combined with the results of the Leaving Certificate from next year. As a result of these changes, it was expected that the number of non-EU medical students would drop to about 29% by 2010, said the judge.

The five undergraduate schools breathed a collective sigh of relief when the High Court ruled against the application. Had it succeeded, it would have paved the way for similar challenges where entry to Irish and other EU applicants is restricted, such as veterinary medicine, pharmacy and dentistry.

But Prendergast is determined to press ahead. Former Attorney General McDowell and constitutional expert Gerard Hogan from Trinity College Dublin are examining the various grounds on which an appeal might be launched. Despite having lost in the High Court, the student will not have to foot the legal bills to date on the grounds that he took a case on a serious constitutional issue.

john.walshe@uw-news.com