Shah, R (on the application of) v Barnet London Borough Council

Factual and Procedural Background

Five conjoined appeals reached the United Kingdom’s highest court. Each matter involved an immigrant student (“the Student Appellants”) who had come to the United Kingdom several years earlier to pursue privately funded studies. After completing initial courses, each student applied to a Local Education Authority (“the Respondent Authorities”) for a mandatory award to undertake a first-degree (or comparable) course under the Education Act 1962 (or its successor provisions). The Respondent Authorities refused the applications on the ground that the students had not been “ordinarily resident in the United Kingdom” for the requisite three-year period.

Four students were appellants; in the fifth case the roles were reversed, the Respondent Authority appealed against a student who had succeeded below. The Divisional Court and subsequently the Court of Appeal issued differing rulings, largely turning on whether the student had entered with limited leave or with indefinite leave to remain. With permission, all five matters were heard together by the House of Lords.

Legal Issues Presented

1. The correct legal meaning, within the Education Acts and attendant regulations, of the phrase “ordinarily resident in the United Kingdom.”
2. If the phrase is construed in favour of the students, what form of judicial relief is appropriate where a Local Education Authority has applied the wrong legal test?
3. Whether a Respondent Authority that refuses a mandatory award is obliged to consider, in the alternative, the grant of a discretionary award.

Arguments of the Parties

Student Appellants’ Arguments

• The Respondent Authorities misdirected themselves by applying a “real home” or permanence test; the proper test is the ordinary, common-law meaning adopted in earlier House of Lords tax decisions.
• “Ordinary residence” can be established by habitual, voluntary residence for settled purposes such as education, despite temporary absences and regardless of immigration status.
• In at least one appeal, the Respondent Authority failed to address its discretionary power, which it was obliged to consider once a mandatory award was refused.

Respondent Authorities’ Arguments

• Only persons whose permanent or indefinite “real home” is in the United Kingdom should qualify; therefore a student admitted for a limited period with a study condition cannot be “ordinarily resident.”
• The immigration status stamped in a passport is a decisive indicator of intention and should control eligibility.
• Policy considerations make it “inconceivable” that Parliament intended public funds for higher education to be made available to overseas students present solely for study.

Table of Precedents Cited

Court's Reasoning and Analysis

Judge Scarman, delivering the leading speech, held that:

• “Ordinarily resident” in the Education legislation bears its natural, ordinary meaning already established in the 1928 tax authorities: habitual and normal residence adopted voluntarily and for a settled purpose, with allowance for temporary or occasional absences.
• Neither the Education Acts nor their regulations import nationality, domicile, or immigration status as additional conditions. The Respondent Authorities erred by substituting a “real home” or permanence test, effectively re-introducing domicile considerations.
• Immigration status is relevant only if the individual’s presence is unlawful; lawful limited leave does not preclude ordinary residence.
• Study can constitute a “settled purpose”; therefore resident students can satisfy the test.
• Lower courts impermissibly relied on policy views and the Immigration Act 1971 to alter plain statutory language.
• When an application is made under section 1 of the 1962 Act, the Respondent Authority must, if mandatory eligibility fails, go on to consider a discretionary award unless the application is expressly limited.
• Because the Respondent Authorities applied the wrong test, their decisions were ultra vires and should be quashed. The proper judicial relief is an order of certiorari (to quash) coupled with mandamus (to require reconsideration), not a declaratory judgment fixing entitlement.

Holding and Implications

Holding: Four student appeals were allowed; the appeal by one Respondent Authority against a successful student was dismissed. Orders of certiorari quashed each impugned refusal, and orders of mandamus directed the Respondent Authorities to reconsider the applications in accordance with the correct legal test.

Implications: The judgment authoritatively fixes the meaning of “ordinarily resident” for education-award purposes and clarifies that immigration status, save where presence is unlawful, is not decisive. Local Education Authorities must henceforth apply the ordinary, factual test and must also address discretionary awards when mandatory eligibility is not proven. While the decision resolves these individual cases, it does not itself create a new cause of action; rather, it restores the statutory scheme to its intended operation.