The five applicants had lived in the UK for at least three years while attending school or college. All five were subject to immigration control, four had entered as students with limited leave to remain for the duration of their studies, and the fifth had entered with his parents for settlement and had indefinite leave to remain. They challenged the refusal to allow them grants for their education.
Held: The House construed the expression ‘ordinarily resident’ in the 1962 and 1980 Acts. Long-standing authority on the meaning of the expression was referred to. The natural and ordinary meaning of ordinary residence had been settled by two tax cases. At least for educational purposes, ‘ordinary residence’ did not include a person whose residence in a particular place or country was unlawful.
Lord Scarman said: ‘Unless, therefore, it can be shown that the statutory framework or the legal context in which the words are used requires a different meaning, I unhesitatingly subscribe to the view that ‘ordinarily resident’ refers to a man’s abode in a particular place or country which he has adopted voluntarily and for settled purposes as part of the regular order of his life for the time being, whether of short or of long duration.’
This was ‘ultimately a question of fact, depending more upon the evidence of matters susceptible of objective proof than upon evidence as to state of mind’ ‘There are two, and no more than two, respects in which the mind of the ‘propositus’ is important in determining ordinary residence. The residence must be voluntarily adopted. Enforced presence by reason of kidnapping or imprisonment, or a Robinson Crusoe existence on a desert island with no opportunity of escape, may be so overwhelming a factor as to negative the will to be where one is’. And ‘local education authorities, when considering an application for a mandatory award, must ask themselves the question: has the applicant shown that he has habitually and normally resided in the United Kingdom from choice and for a settled purpose throughout the prescribed period, apart from temporary or occasional absences?’ There is an overlap between the meaning of ‘ordinary’ and ‘habitual’ residence and one is sometimes defined in terms of the other: ‘I agree with Lord Denning, M.R. that in their natural and ordinary meaning, the words [ordinarily resident] mean ‘that the person must be habitually and normally resident here, apart from temporary or occasional absences of long or short duration.’ The significance of the adverb ‘habitually’ is that it recalls two necessary features mentioned by Viscount Sumner in Lysaght’s case, namely residence adopted voluntarily and for settled purposes.’ and ‘The ordinary and natural meaning of the words supplies [a simple test]. For if there be proved a regular, habitual mode of life in a particular place, the continuity of which has persisted despite temporary absences, ordinary residence is established provided only it is adopted voluntarily and for a settled purpose.’ Purposive interpretation is only available if a judges ‘can find in the statute read as a whole or in material to which they are permitted by law to refer as aids to interpretation an expression of Parliament’s purpose or policy.’
The court allowed one exception: ‘If a man’s presence in a particular place or country is unlawful, eg in breach of the immigration laws, he cannot rely on his unlawful residence as constituting ordinary residence (even though in a tax case the Crown may be able to do so): In re Abdul Manan [1971] 1 WLR 859 and R v Secretary of State for the Home Department, Ex p Margueritte [1982] 3 WLR 753, CA. There is, indeed, express provision to this effect in the Act of 1971, section 33(2). But even without this guidance I would conclude that it was wrong in principle that a man could rely on his own unlawful act to secure an advantage which could have been obtained if he had acted lawfully.’ ‘Unless, therefore, it can be shown that the statutory framework or the legal context in which the words are used requires a different meaning, I unhesitatingly subscribe to the view that ‘ordinarily resident’ refers to a man’s abode in a particular place or country which he has adopted voluntarily and for settled purposes as part of the regular order of his life for the time being, whether of short or of long duration.’
Lord Scarman also said: ‘If a local education authority gets the law right, or, as the lawyers would put it, directs itself correctly in law, the question of fact – ie has the student established the prescribed residence? – is for the authority, not the court, to decide. The merits of the application are for the local education authority subject only to judicial review to ensure that the authority has proceeded according to the law.’
Judges:
Lord Scarman
Citations:
[1983] 2 AC 309, [1983] 1 All ER 226, [1983] 2 WLR 16, [1982] UKHL 14, (1982) 81 LGR 305
Links:
Statutes:
Education Act 1962, Education Act 1980, Local Education Authority Award Regulations 1979 (SI 1979/889) R13
Jurisdiction:
England and Wales
Citing:
Cited – Inland Revenue Commissioners v Lysaght HL 1928
The taxpayer, who was living in Ireland would come regularly to England for a total of less than three months a year, and would spend a week or so in a hotel for the purpose of board meetings. The House considered the meaning of the requirement of . .
Cited – Levene v Inland Revenue Commissioners HL 1928
Until 1919 Mr. Levene had been both resident and ordinarily resident in the UK. Then, for five years he spent about five months (mainly in the summer) each year, staying in hotels in the UK and receiving medical attention or pursuing religious and . .
Cited – Inland Revenue Commissioners v Lysaght HL 1928
The taxpayer, who was living in Ireland would come regularly to England for a total of less than three months a year, and would spend a week or so in a hotel for the purpose of board meetings. The House considered the meaning of the requirement of . .
Cited – In re Abdul Manan CA 1971
The applicant was a Pakistani seaman who had deserted from his ship and his presence in the UK was unlawful under the 1962 Act. He nevertheless claimed to be entitled to enter and remain as a person who had been ordinarily resident here for two . .
Cited – Regina v Secretary of State for the Home Department, Ex parte Margueritte CA 1982
The applicant first arrived from Mauritius in 1972, and was given limited leave to enter for a few months. He over-stayed until June 1974 when he paid a short visit to France. On return he was given one month’s leave to enter, but again overstayed. . .
Cited by:
Distinguished – Al-Ameri v Royal Borough of Kensington and Chelsea; Osmani v London Borough of Harrow (Conjoined Appeals) HL 5-Feb-2004
The applicants had been asylum seekers, and obliged to live in Glasgow. Upon losing their asylum claim, but being given exceptional leave to remain, they sought to be rehoused by the appellants. The appellants had said that the applicants having . .
Cited – Mohamed v Hammersmith and Fulham London Borough Council HL 1-Nov-2001
Mrs M came to England in 1994 living first in Ealing and then Hammersmith. Mr M came later and lived elsewhere in Hammersmith. Hammersmith gave them jointly temporary accommodation, first in a hotel and then in a flat. They then applied under . .
Cited – Mark v Mark CA 19-Feb-2004
The husband sought to stay divorce proceedings saying that his wife was an illegal overstayer, and could not therefore establish residence either as habitual or as domicile of choice.
Held: Jurisdiction existed. The law since Shah had . .
Cited – Nessa v Chief Adjudication Officer HL 3-Nov-1999
Mrs. Nessa arrived at Heathrow aged 55 having lived all her life in Bangladesh. Her husband, Mr. Mobarak Ali, had lived in the United Kingdom from 1962 until he died in 1975 and when she arrived here, Mrs. Nessa had a right of abode. She hoped to . .
Applied – Kapur v Kapur FD 1984
The husband had petitioned for divorce. He came to England only in August 1981, and had only limited leave to stay. The court considered whether the court had jurisdiction.
Held: There was no significant difference for this purpose between . .
Cited – Mark v Mark HL 30-Jun-2005
The petitioner sought to divorce her husband. Both were Nigerian nationals, and had married under a valid polygamous marriage in Nigeria. She claimed that the courts had jurisdiction because of her habitual residence here despite the fact that her . .
Cited – M, Regina (on the Application of) v Gateshead Council CA 14-Mar-2006
The applicant had left care, but still received assistance. She was arrested and the police asked the attending social worker to arrange secure accommodation overnight. The respondent refused. The court was asked what duty (if any) is owed by local . .
Cited – YA, Regina (On the Application of) v Secretary Of State for Health CA 30-Mar-2009
The applicant was a failed asylum seeker who sought judicial review of a decision of an NHS Trust not to provide him with free care. The court was asked for guidance as to whether a health trust had a discretion to provide free health care to a . .
Cited – A, Regina (on the Application of) v London Borough of Croydon SC 26-Nov-2009
The applicants sought asylum, and, saying that they were children under eighteen, sought also the assistance of the local authority. Social workers judged them to be over eighteen and assistance was declined.
Held: The claimants’ appeals . .
Cited – Davies and Another, Regina (on The Application of) v Revenue and Customs SC 19-Oct-2011
The Revenue had published a booklet, IR20, setting out their approach to the interpretation of the phrases ‘residence’ and ‘ordinary residence’. The taxpayer said that this was a more generous definition than the statutory one, and that having acted . .
Considered – Regina v Home Secretary, ex parte Chugtai 1995
The court considered the natural and ordinary meaning of the phrase ‘ordinarily resident’.
Held: It was a question of fact for each case. Collins J noted the example given in argument of a person who had a contract for a definite period of . .
Applied – Regina v Waltham Forest, Ex parte Vale 11-Feb-1985
The court had to decide what was the ordinary reference under the 1948 of an adult without capacity. V had been in residential care in Ireland for over 20 years, but having left there had been with her mother for two weeks. The parties argued the . .
Cited – Cornwall Council, Regina (on The Application of) v Secretary of State for Health and Somerset County Council SC 8-Jul-2015
PH had severe physical and learning disabilities and was without speech, lacking capacity to decide for himself where to live. Since the age of four he received accommodation and support at public expense. Until his majority in December 2004, he was . .
Cited – A v A and another (Children) (Children: Habitual Residence) (Reunite International Child Abduction Centre intervening) SC 9-Sep-2013
Acquisition of Habitual Residence
Habitual residence can in principle be lost and another habitual residence acquired on the same day.
Held: The provisions giving the courts of a member state jurisdiction also apply where there is an alternative jurisdiction in a non-member . .
Cited – Tigere, Regina (on The Application of) v Secretary of State for Business, Innovation and Skills SC 29-Jul-2015
After increasing university fees, the student loan system was part funded by the government. They introduced limits to the availability of such loans, and a student must have been lawfully ordinarily resident in the UK for three years before the day . .
Cited – JSC BTA Bank v Khrapunov SC 21-Mar-2018
A had been chairman of the claimant bank. After removal, A fled to the UK, obtaining asylum. The bank then claimed embezzlement, and was sentenced for contempt after failing to disclose assets when ordered, but fled the UK. The Appellant, K, was A’s . .
Lists of cited by and citing cases may be incomplete.
Education, Immigration
Updated: 09 September 2022; Ref: scu.200334
