COUNSEL:  Anthony Lester Q.C. and K. S. Nathan for the applicants.

Anthony Scrivener Q.C. and Robin Barratt for the local education authority.

Simon D. Brown as amicus curiae.

 

SOLICITORS (D.C.):  Solicitors: Jaques & Co.; E. M. Bennett; Treasury Solicitor.

(C.A.):  Jaques & Co.; Bindman & Partners; Nicholls Christie & Crocker, Uxbridge; Chief Executive, Barnet London Borough Council; Director of Legal Services, Greater London Council; Solicitor, Shropshire County Council; Solicitor, Brent London Borough Council.

 

JUDGES (D.C.):   Ormrod L.J., Kilner Brown and McNeill JJ.

(C.A.):  Lord Denning M.R., Eveleigh and Templeman L.JJ.

 

DATES (D.C.):  1980 June 23, 24; July 18

(C.A.)  1981 Oct. 13, 14, 15, 16; Nov. 10

 

July 18.

 

ORMROD L.J. read the following judgment of the court.

 

In these two cases, which raise the same point of law, and have been heard together, Mr. Nilish Shah and Mr. Jitendra Shah apply by way of judicial review for orders of certiorari and mandamus in respect of decisions by the London Borough of Barnet, in its capacity as local education authority, that neither of the applicants is eligible for an award (or grant) under section 1 of the Education Act 1962. Regulation 13 (a) of the Local Education Authority Awards Regulations 1979 made under this Act provides:

        

“An authority shall not be under a duty to bestow an award in respect of a person’s attendance at a course - (a) upon a person who has not been ordinarily resident, throughout the three years preceding the first year of the course in question, in the United Kingdom or, in the case of such a person as is mentioned in regulation 9 (1) (b), has not been so resident in the European Economic Community;…”

 

In each case the ground for refusing to make an award was that the applicant had not been ordinarily resident throughout the preceding three years in the United Kingdom. The present applications, therefore, turn on the construction of that familiar phrase “ordinarily resident,” which seems so convenient to the draftsman, but proves difficult and troublesome to every one who has to consider and apply it. The question is of great importance to all local education authorities and to many students. Both applicants, by leave of the court, have amended their applications to ask in the alternative for various declarations.

        

The two Shahs are in no way related or connected with each other and their cases differ significantly on their facts. For convenience we shall refer to them as “Nilish” and “Jitendra” respectively, and the London Borough of Barnet as the “local education authority.”

        

Mr. Anthony Lester, who has appeared for both applicants, has put  [*695]  their respective cases succinctly, and with force and clarity, for which we are grateful. He submitted that we should follow, though with due caution, the three well known tax cases, Levene v. Inland Revenue Commissioners [1928] A.C. 217; Inland Revenue Commissioners v. Lysaght [1928] A.C. 234 and Miesegaes v. Inland Revenue Commissioners (1957) 37 T.C. 493, reject the “real home” test suggested by Karminski J. in Stransky v. Stransky [1954] P. 428, and give the words their natural and ordinary meaning. Mr. Scrivener, for the local education authority, on the other hand, submitted with equal force and brevity, that we should adopt the “real home” test, and not follow the tax cases. Alternatively, we should construe the words in their legislative context. Mr. Simon Brown, who appeared as amicus curiae, mainly on questions of immigration law, has also helped us on the main issue. He supported Mr. Scrivener’s argument on the tax cases, and submitted that they should not be regarded as of general application because tax law accepts the concept that a person may be “ordinarily resident” in more than one place at the same time, a concept which is not applicable in the present context, or in other contexts in which this phrase is used. We are grateful to him for his assistance.

        

We have not found the tax cases very helpful in the solution of our present problem, because they were concerned with a different situation. Each decides only that there was evidence upon which the special commissioners could find “ordinary residence” as a matter of fact. Much of the speeches and judgments, though of the highest authority, are, therefore, essentially obiter dicta. Nor do we derive much assistance from Stransky v. Stransky which was again concerned with a different situation. We do not think that Karminski J. intended his use of the phrase “real home” to be of general application. We have also experienced considerable difficulty in ascertaining the “natural and ordinary” meaning of the words in question. To determine the “ordinary” meaning of “ordinarily” is something of a linguistic feat in itself. Nor is the word “resident” at all easy. It is not much used in ordinary speech, and then without precision.

        

In these circumstances, we think that the problem is best approached from first principles. Any tentative conclusion as to construction can then be examined in the light of the reported cases.

 

Our task is to construe the phrase “ordinarily resident” in its legislative context, giving the words, so far as possible, their natural and ordinary meaning in that context. Section 1 of the Education Act 1962, so far as material read:

        

“(1) It shall be the duty of every local education authority, subject to and in accordance with regulations made under this Act, to bestow awards on persons who - (a) are ordinarily resident in the area of the authority, and (b) possess the requisite educational qualifications, in respect of their attendance at courses to which this section applies.”

        

Regulation 13 (a) limits the scope of this duty to persons who have been ordinarily resident throughout the preceding three years in the United Kingdom.  [*696] 

 

There are, therefore, two classes of person, differentiated by the phrase “ordinarily resident.” To be eligible for an award, a person must not only be “resident” in the United Kingdom, he must also be “ordinarily resident,” and in a position to show that he has had this quality of residence for the three years immediately preceding the beginning of his course of study.

        

The Act of 1962, in section 1, provides for bestowing awards on certain persons. “Bestow” is an unusual word to find in an Act of Parliament, and carries a special connotation. It is commonly used in connection with words such as “bounty” or “favours” or some similar charitable or quasi-charitable act.

        

It is, therefore, to be expected that Parliament intended to distinguish between persons whose connection with the United Kingdom was sufficiently close to justify their being helped or supported by awards from public funds to pursue their studies in the United Kingdom, and those whose connection lacked this quality. Mere residence, even for a period of three years, would not be enough: the residence must have a certain quality; that quality is identified by the use of the word “ordinarily.”

        

The phrase “ordinarily resident” is used in a variety of legislative contexts. It has become, in fact, a point on a scale which ranges from mere presence in this country, through “resident,” “ordinarily resident,” “habitually resident,” to “domicile,” which is widely used to specify the nature and quality of the association between person and place, which brings the person within the scope of the particular enactment. Mere presence within the jurisdiction is enough to permit good service of a writ, or other forms of process in most cases; in some, e.g., the Carriage by Air Act 1961, more is required. Article 28 of the Warsaw Convention specifies the defendant’s ordinary residence or principal place of business as the prerequisite for jurisdiction. Residence alone is enough for the Representation of the People Act 1949. Habitual residence for one year, or domicile, is required to give jurisdiction in matrimonial proceedings: see section 5 of the Domicile and Matrimonial Proceedings Act 1973. Habitual residence or nationality is required for the recognition of foreign divorces: see the Recognition of Divorces and Legal Separations Act 1971.

        

What then are the characteristics of ordinary residence which distinguish it from residence without this qualification? In answering this question we have derived great assistance from the judgment of Smith J. in Clarke v. Insurance Office of Australia Ltd. [1965] 1 Lloyd’s Rep. 308, a case in the Supreme Court of Victoria. We cannot do better than to read in full what he said, at pp. 310-311:

        

“The words ‘ordinarily residing with’ are common English words and here there is no context requiring that they should be given other than their natural meaning in accordance with the accepted usage of English. Even in such circumstances, however, there can be difficulty and doubt as to their applicability to particular sets of facts, because the conception to which the words have reference does not have a clearly definable content or fixed boundaries. It is a conception as to the extent of the association and the strength of the  [*697]  connection between two persons as members of one household or domestic establishment; and whether the extent and strength of the connection are such, in any given case, as to make the words fairly applicable, is a question of degree. Moreover that question depends upon an assessment of a combination of factors; and combinations may be found to be adequate though they differ widely, both in the weighting of factors and in the identity of the factors present.

   

“The situation is similar to that discussed by Rand J. in the following passage from his judgment in Thomson v. Minister of National Revenue [1946] S.C.R. 209, 224, where the expression under consideration was ‘ordinarily resident’:… ‘The inquiry lies between the certainty of fixed and sole residence and the uncertain line that separates it from occasional or casual presence, the line of contrast with what is understood by the words “stay” or “visit” into which residence can become attenuated; and the difference may frequently be a matter of sensing than (sic) of a clear differentiation of factors. The gradation of degrees of time, object, intention, continuity and other relevant circumstances, shows, I think, that in common parlance “residing” is not a term of invariable elements, all of which must be satisfied in each instance. It is quite impossible to give it a precise and inclusive definition. It is highly flexible, and its many shades of meaning vary not only in the contexts of different matters, but also in different aspects of the same matter. In one case it is satisfied by certain elements, in another by others, some common, some new.’

   

“The duration of residence and the comparative times spent in different places or households, will, of course, commonly be a great importance, but they are not factors which are necessarily decisive. They may be outweighed by other factors: compare Levene v. Inland Revenue Commissioners [1928] A.C. 217; Inland Revenue Commissioners v. Lysaght [1928] A.C. 234; Thomson v. Minister of National Revenue [1946] S.C.R. 209, 228 and 232; Hopkins v. Hopkins [1950] 2 All E.R. 1035; Judd v. Judd, 75 W.N. N.S.W. 147. In some circumstances, for example, a man may properly be said to be ‘ordinarily residing’ at a place immediately after he begins to reside there. For it may be his intention to reside there permanently and he may have severed his connections with all previous places of residence: cf. Macrae v. Macrae [1949] 2 All E.R. 34, 36; Lewis v. Lewis [1956] 1 All E.R. 375, 377. To take another illustration, if a ship’s officer spends all but a few weeks of the year at sea, and spends those weeks with his wife and children in the home in which they live, it would be an appropriate use of language to say that he ordinarily resided with his wife; compare In re Young (1875) 1 T.C. 57. And the same would be true of, say, a wool buyer whose occupation prevented him from being at home with his wife and family for more than a few weeks in the year, and who followed a regular round of sales and spent longer periods lodging at particular hotels  [*698]  than at the home. In such cases the strength of the bond that ties the man to his family and their household makes up for the short duration of his stays in the home. Again if a person has once become so connected with a particular household that it would be regarded as his permanent home, and absence from it, even if of long duration and spent in only one other household, will not, in general, be regarded as changing the place where he ordinarily resides, so long as the move is for a special limited purpose and is not intended to be permanent or to continue indefinitely: compare, as regards the relative unimportance of a ‘residing’ which is for a special purpose and not for general purposes of living with ‘its accessories in social relations, interests, and conveniences’: Thomson v. Minister of National Revenue [1946] S.C.R. 209, 224-225, and In re Young (1875) 1 T.C. 57; and in relation to the continuing importance of the connection with a permanent home until there is clear severance….”

        

Then there is a reference to several other cases.

        

We think that the most significant point which emerges from this analysis is that the concept of “ordinary residence” embodies a number of different factors, such as time, intention, and continuity, each of which may carry a different weight according to the context in which, and the purpose for which, the phrase “ordinarily resident” is used in a particular statute. An illustration of this is to be found in the National Service Act 1948, section 34 (4), which, exceptionally, defines “ordinarily resident” as excluding residence “only for the purposes of attending a course of education,” and residence for a “temporary purpose only.”

        

Some help may be obtained from the relevant entries in the dictionaries. For example, the Shorter Oxford English Dictionary shows that the words “ordinary” or “ordinarily” may be used as the antonym of “exceptional,” or “special,” or “extraordinary,” or as a synonym for “regular.” In each case the shade of meaning is different, and as Smith J. pointed out, one shade may be appropriate in one legislative context and another in another. We think that in regulation 13 (a) “ordinarily resident” is used to distinguish between those who are resident for general (i.e. ordinary) purposes, and others who are resident for a specific or limited purpose.

 

There is nothing in the tax cases, Levene v. Inland Revenue Commissioners [1928] A.C. 217, and Inland Revenue Commissioners v. Lysaght [1928] A.C. 234, when carefully examined, which is inconsistent with this provisional conclusion, although there are obiter dicta which, at first sight, might appear to be. The House of Lords was not really concerned in either case with the distinction between “resident” and “ordinarily resident.” Both cases were primarily concerned with the meaning of “resident”; “ordinarily resident” was a subsidiary issue to which little attention was paid. The main issue was whether the individuals concerned were entitled to exemption from income tax on interest on securities of British Possessions under rule 2 (d) of the General Rules applicable to Schedule C, as a person “not resident” in the United Kingdom; the subsidiary question arose under the Income  [*699]  Tax Act 1918, section 46, which exempted persons not “ordinarily resident” in the United Kingdom from income tax on interest on War Loan. It might have seemed a little anomalous if Mr. Levene and Mr. Lysaght had been subject to tax on their income from securities of British Possessions, yet not subject to tax on the interest from their holdings of War Loan.

 

These cases have been cited very frequently as authority for the meaning of “ordinarily resident,” almost always for the dicta which are to be found in the speeches. Insufficient attention has been paid, in our view, to the reasons given by the special commissioners for finding that these two men were resident and ordinarily resident in this country. In Levene’s case [1928] A.C. 217, the special commissioners’ reasons are given, and they read as follows, at p. 222:

 

“These are in our opinion questions of degree, and taking into consideration all the facts put before us in regard to the appellant’s past and present habits of life, the regularity and length of his visits here, his ties with this country, and his freedom from attachments abroad, we have come to the conclusion that at least until January 1925, when the appellant took a lease of a flat in Monte Carlo, he continued to be resident in the United Kingdom. The claims for the years in question therefore fail.”

        

In Lysaght’s case [1928] A.C. 234, the reasons are at p. 238, and they refer specially to his former ties with this country, to the length of time spent by him in this country during the year in question, and to the regularity of his visits.

        

We were also referred to Miesegaes v. Inland Revenue Commissioners (1957) 37 T.C. 493, another case under the Income Tax Act 1918, section 46, in which a schoolboy at Harrow was held to be “ordinarily resident” in this country. The facts are altogether unusual. The boy came to this country with his father as a refugee from Holland in 1939. As an extra statutory concession, the father was not regarded as ordinarily resident. In 1946 he went to live in Switzerland, but died there in July 1948. The question was whether the boy was ordinarily resident in this country during the years 1947-48 to 1951-52. After his father’s death the boy had no home anywhere, but spent by far the greater part of his time in England, either at school, with an aunt, or with his former governess. It was submitted that his presence here during the relevant period was for the special purpose of schooling, but the special commissioners rejected that submission because “in our opinion that consideration did not, in the circumstances of the case, point very strongly to the conclusion that he was not resident here.” In our opinion, the judgments in the Court of Appeal must be read in the light of these very unusual circumstances of a schoolboy with no alternative residence but his boarding school. Plainly, he was not here for the special purpose of education; after his father’s death he had nowhere else to go. On the special facts of the case the observations of both Pearce and Morris L.JJ. as to the meaning of “ordinarily resident” were entirely appropriate. As statements of general application  [*700]  they were, in our view, too widely expressed, and being in the context obiter dicta are not binding upon us.

        

In Stransky v. Stransky [1954] P. 428, Karminski J. had to construe the meaning of “ordinarily resident” in the context of the Matrimonial Causes Act 1950, section 18 (1) (b), which gave the court jurisdiction to grant a decree of divorce to a wife not domiciled here who had been ordinarily resident in England for three years immediately preceding the filing of her petition.

        

During the three-year period, she was away from this country for 15 months, living with her husband in temporary accommodation in Munich due to the exigencies of her husband’s employment, but returning from time to time to the flat, which was never let, and kept ready for her occupation. She was held to have been ordinarily resident here during the whole period. The judge said, at p. 437: “I can find no intention on the wife’s part to make Munich her home for an indefinite period.” The case is constantly cited as authority for the “real home” test, but it is clear from the judgment, at p. 437, that this was just one of the tests and the one which seemed most appropriate on the facts of that case.

        

Macrae v. Macrae [1949] P. 397 is an illustration of the weight which, in a proper case, may be given to intention. Mr. Macrae established ordinary residence in Scotland immediately on his return there from England, following the breakdown of his marriage, because, from that moment, he intended to make his home in Scotland for an indefinite period.

 

Hopkins v. Hopkins [1951] P. 116 is sometimes cited for the proposition that the addition of the adverb “ordinarily” lends no added meaning to the word “residence.” Pilcher J. actually said, at p. 122 “… on the facts of this particular case at least, the qualifying adverb ‘ordinarily’ adds nothing to the adjective ‘resident.’ “

 

Fox v. Stirk and Bristol Electoral Registration Officer [1970] 2 Q.B. 463 does not throw any light on the present problem. It merely established that a student at a university is “resident” in the area of the university for the purposes of the Representation of the People Act 1949.

        

It is convenient, at this stage, to deal with a subsidiary argument put forward by Mr. Lester, based on section 34 (4) of the National Service Act 1948. He submitted that this section demonstrates that when Parliament intends to restrict the meaning of the words “ordinarily resident,” it does so by express enactment. Apart from the principle that one Act is not to be construed by reference to other and unconnected legislation, it seems probable that, in the National Service Act 1948, Parliament was anxious to make doubly sure that persons not intended to be subject to National Service were not caught by the ambiguity of the words themselves. It is a pity that this precedent is not followed more often when draftsmen use, as they so often do, this deceptively simple phrase.

        

In our judgment, therefore, an important, though not the only, element to be considered in ascertaining whether an individual is “ordinarily resident” in the United Kingdom for the purposes of regulation  [*701] 13 (a), is the purpose of, or the reason for, his presence in the United Kingdom, and his intention in coming and remaining here. “Why is he in this country?” is a relevant question. If the answer is for a specific or limited purpose, rather than the general purposes of living here he will not be “ordinarily resident” within the meaning of this regulation.

        

The facts of each case must now be considered separately.

 

Nilish

 

Nilish Shah was born in Kenya on July 15, 1959. He is a citizen of Kenya and holds a Kenyan passport issued to him on July 14, 1976. His parents were then living in Kenya, and are citizens of the United Kingdom and Colonies. On August 1, 1976, his father obtained, from the British High Commission in Nairobi, a “special voucher” entitling him to enter the United Kingdom for “settlement” within the meaning of the Immigration Act 1971. On the same day his mother obtained an entry certificate marked “Accompany husband - settlement.” Nilish himself was given an entry certificate on the same day marked “Accompany parents - settlement.” The family arrived at Heathrow on August 7, 1976. All three were given leave to enter for an indefinite period.

 

Nilish has been living at 14, Ryhope Road, New Southgate, London N.11 since that date. The house belongs to his father, grandfather, and an uncle. He attended the Hendon College of Further Education from September 1976 to June 1977, and Southgate Technical College from September 1977 to June 1979, and has passed his “O” and “A” levels in various subjects. He has been accepted by the University of Manchester Institute for Science and Technology to read for a B.Sc. degree in Management Science. He started this course on October 2, 1979. His name now appears on the electoral roll for the area in which he lives. He states in his affidavit that he is “settled” in the United Kingdom, and that there are no conditions limiting his stay in this country. In August 1979, he applied to the local education authority for a major award under the Education Act 1962. The evidence, therefore, appears to indicate that he has been resident in the United Kingdom since August 7, 1976, for all purposes, including “settlement” as that word is used in immigration law. However, he has not been living with his parents. They returned to Kenya five weeks after their arrival in this country. Their passports show that they left on September 10, 1976, since when they have been living in Kenya. Both are entitled to readmission to the United Kingdom if they wish. Nilish has returned to Kenya during the summer holidays each year.

 

The local education authority’s decision on his eligibility for an award was conveyed in a letter dated August 28, 1979. The letter reads:

        

“I refer to your application for a major award to assist you with your proposed course

 

“To qualify for a major award a student must have been ordinarily resident in the United Kingdom for three years prior to September 1 in the year the course commences. In accordance with guidance from the Department of Education and Science and from information  [*702] available it appears that your real home is not in the United Kingdom and, thus, you fail to fulfil the requirements of this regulation. I, therefore, write to advise you that your application cannot be approved.”

        

The reasons for this decision are given in paragraphs 12 and 13 of an affidavit, sworn by Mr. Jack Dawkins, the Director of Educational Services, on February 26, 1980. They read as follows:

        

“13. The matters taken into consideration by the authority in determining as a matter of fact whether the applicant was ordinarily resident in its area in September 1979 were that: (a) the applicant had permission to enter the United Kingdom as a dependent of his parents who, on the occasion of his entry he accompanied and were admitted for settlement; (b) his parents however left the United Kingdom only five weeks later on September 10, 1976, and have not returned since that date; (c) the applicant is now over 18 years of age and his parents have not been resident in the United Kingdom for a period of more than two years nor had they lived in this country for most of their lives, when they left; (d) the applicant is a citizen of the Republic of Kenya and a passport holder of that country; (e) he has regularly returned to the home of his parents in Nairobi during each of the summer holiday periods during his full-time course of studies in this country; (f) since August 1976 the applicant has been continuously engaged in studies at colleges of further education in the authority’s area for which purpose he has remained in this country. 14. At the time of his application to the authority, the applicant’s parents were no longer settled in the United Kingdom and his circumstances have therefore changed from those that obtained upon his original entry into this country. It appeared to the authority that the applicant’s real home was in Nairobi in Kenya to which he returned in the summer holidays.”

        

The local education authority are not to be criticised for applying the “real home” test, because they were following the advice of the Department of Education and Science in a circular dated January 27, 1978. Nor is the department, because the authorities are not in a satisfactory state. However, for reasons given above, we do not think that the “real home” test by itself is particularly helpful; it is certainly not conclusive.

        

The return of the parents to Kenya after such a brief stay makes this case quite exceptional. We think that the only ground for saying that Nilish’s real home is in Kenya would be the assumption that the “real home” of young people aged 17 or 18 (Nilish was 17 on arrival) is with their parents. Even assuming that the local education authority applied the right test, we do not think there is any evidence to support their decision.

        

Applying what we hold to be the correct test, and in the absence of any suggestion that the father and mother did not intend to settle in the United Kingdom, the only proper inference appears to be that Nilish came to this country for the purpose of settling here, i.e. for all ordinary purposes of living, and not for the specific purposes of being  [*703]  educated here, and has been so residing here since August 1976. We would hold that, on the material before us, there is no evidence upon which the local education authority could decide that he was ineligible for an award under regulation 13 (a).

        

Jitendra

        

Jitendra’s case has significant differences on its facts. He, too, was born in Kenya, and at almost the same time, July 19, 1959. He is a citizen of the United Kingdom and Colonies, but has no right of entry to this country. On June 20, 1976, he was granted a student’s entry certificate by the British High Commission in Kenya. He arrived at Heathrow on August 26, 1976, and was given leave to enter the United Kingdom for two months on condition that he did not enter employment or engage in any business or profession. This leave has been extended on the same basis from time to time. His parents still live in Kenya. Since his arrival he has been living at 47, Highwood Avenue, London N. 12, the home of his brother, Mr. D. U. Shah. From September 1976 to July 1979, he was a student at Southgate Technical College. He has “A” levels in four subjects. He has obtained a place at Newcastle University to read for a degree in Dental Science. He applied to the local education authority for an award under section 1 of the Education Act 1962, but his application was rejected. The local education authority’s decision was conveyed to him in a letter dated August 1, 1979. It is in precisely the same terms as the letter to Nilish, quoted above. In his affidavit in this case, Mr. Jack Dawkins summarised the reasons for the local education authority’s decision in paragraphs 12 and 13 which read as follows:

        

“12. The matters taken into consideration by the authority in determining as a matter of fact whether the applicant was ordinarily resident in its area in September 1979 were that: - (a) the applicant had permission to remain in this country only as a student for a limited period; (b) the applicant had been permitted to enter this country only upon the basis that he had been accepted for and intended to follow a full-time course of study at a college within the authority’s area; (c) the applicant was able to meet the cost of his course and his own maintenance; (d) the applicant will be required to leave the country on the completion of his studies and expiry of extensions to his original entry clearance; (e) the applicant’s parents have remained resident at their home in Nairobi in Kenya; (f) throughout the period in which the applicant has remained in the authority’s area he has pursued the course of studies for which he was given his original entry clearance. 13. Upon consideration of each and all these matters the authority concluded that the real home of the applicant was in Nairobi in Kenya and determined to refuse his application for a major award, which refusal was notified to the applicant by letter dated August 1, 1979.”

        

It is clear that paragraph 12 (a) (b) and (d) contains the substantive  [*704]  ground for deciding that Jitendra was not ordinarily resident in the United Kingdom over the period of three years, although, in paragraph 13, Mr. Dawkins refers to the “real home” test. We need not repeat our comments upon this.

        

In our judgment, the evidence clearly establishes that Jitendra came to this country as a student, for a limited period only, and for a specific or limited purpose, namely to study, and if possible, obtain a professional qualification. For this purpose, the terms upon which he was permitted by the immigration authorities to enter the United Kingdom are evidence, and strong evidence, of his purpose in coming here and the reasons why he has remained here since 1976. His immigration status is not in itself conclusive, but it justifies this inference.

        

It is only necessary to refer briefly to the Immigration Rules. The Immigration Rules for Control on Entry 1978 treat students as “Passengers coming for temporary purposes.” Paragraph 18 requires the applicant for entry clearance to satisfy the officer that he has been accepted for a course of full time study, and that he can meet the cost of the course and of his own maintenance. Under paragraph 19, he must satisfy the officer that he intends to leave the country on completion of the course. The Immigration Rules for Control after Entry provide in paragraph 13, that on an extension of leave the student “may be reminded that he will be expected to leave at the end of his studies.”

 

The contrast between these two cases brings out very clearly the difference between “resident” and “ordinarily resident” in the legislative context of regulation 13 (a). Nilish’s answer to the question, “Why are you here?” would be, “To live, to study, and to remain.” Jitendra’s answer could only be, “To study, to qualify if possible, and then to leave.”

 

We are fortified in our construction of this regulation by the reflection that it is almost inconceivable that Parliament could have intended to bestow major awards for higher education, out of public funds, on persons permitted to enter this country on a temporary basis, solely for the purpose of engaging in courses of study at their own expense. Such an improbable result is not to be accepted if it can properly be avoided.

        

The conclusion, therefore, is that in the case of Nilish there was no evidence before the local education authority upon which they could properly decide that he had not been ordinarily resident in the United Kingdom for the relevant period, and that he was ineligible for an award under the Act. In the case of Jitendra, on the other hand, there was evidence which entitled the local education authority to decide that he was ineligible for such an award on the ground that he had not been ordinarily resident in this country for the relevant period or at all.

        

If necessary we will hear counsel on the form of order in Nilish’s case, but he appears to be entitled to an order quashing the local education authority’s decision of August 28, 1979, and an order directing them to reconsider his application for an award. In the case  [*705]  of Jitendra we dismiss the application for judicial review and for any of the declarations claimed.

        

Application of Nilish Shah for judicial review granted with costs.

        

Applications of Jitendra Shah dismissed.

 

 

APPEALS from the Divisional Court of the Queen’s Bench Division.

        

APPLICATIONS for judicial review and declarations.

        

The unsuccessful parties in Reg. v. Barnet London Borough Council, Ex parte Nilish Shah and Ex parte Jitendra Shah appealed.

 

November 10.

 

The following judgments were read.  [*717] 

 

LORD DENNING M.R.  When students go to a university or polytechnic to take a degree, many of them get a grant from a local education authority to help them with the expense. The amount depends on their parents’ income, and so forth. In order to be entitled as of right to a grant, they have to be “ordinarily resident” in this country throughout the three years before the course starts. When they are not entitled as of right, the local education authority have a discretion whether to make a grant or not.

        

We are today only concerned with mandatory awards to which the students are entitled as of right. It is the words “ordinarily resident” which cause the trouble. No difficulty arises with students who have their homes here and have been here all their lives. But much difficulty arises with students born overseas and coming from overseas. Many of them have been here for some time. They have come as boys or girls and have been to school here. Their parents have paid the school fees, but they now want to get a grant towards their expenses at the universities or polytechnics. These young men and women seek a mandatory award under which the local education authority are bound to make them a grant. In a sense they seek a special privilege over and above our home students. Their parents will not have paid income tax in this country - out of which the grants have to come. But yet these students claim to have the same benefit as the children of parents who have been here and paid taxes here all their lives.

        

To test the position, six cases have been brought before the courts. Each presents different features.

        

Nilish Shah is now 22. He is a citizen of Kenya with a Kenyan passport. He came here on August 7, 1976, when he was aged 17. He went to technical colleges (which I will call schools) here from September 1976 to June 1979. He stayed with relatives, and went daily to school. He did well in his exams. He went back to Kenya each year for his summer holidays with his parents. In October 1979, at the age of 20, he started his university course at Manchester University, studying for a B.Sc. degree. The question is whether he was “ordinarily resident” here for the three years from October 1976 to October 1979.

        

His case differs from most of the others, because he did not come on a student’s visa. He came with his father and mother on a “settlement” basis. They had an entry certificate issued in Nairobi marked “for settlement.” The son had an entry certificate marked “accompanying parents - settlement.” On the faith of it, his passport was endorsed “indefinite leave to enter.” But the father and mother did not settle here. After only being here five weeks they left on September 10, 1976, and returned to Kenya. They have lived there ever since. This makes me wonder whether their real object from the beginning was to bring their son over here for his education. They saw him started at school and then went straight back to Kenya. But no suggestion is made of bad faith or concealment. So I think we should regard the son as here for “settlement” and as “settled” here.

        

Barnet London Borough Council refused to make any award to Nilish. He has, however, stayed here going to the university. No doubt his parents have paid his fees. He comes to the court and asks for an award. He says that he is entitled to it as of right.  [*718]  Jitendra Shah is a typical case of a boy who comes on a student’s visa. He is now 22, about the same age as Nilish Shah. He is a citizen of the United Kingdom and Colonies, and holds a British passport issued by a High Court in Nairobi. His parents live in Kenya. He was granted a student’s entry and arrived on August 26, 1976. He had to satisfy the authorities that he could meet the cost of the course and his own maintenance. On this basis, he was granted leave to enter for 12 months, and this was continued on the same basis year after year. He stayed in England with his brother, who had a house here, and has maintained him. He went daily to a technical college from September 1976 to July 1979. He did not go back to Kenya for holidays, or at all. But his parents are still there. Then, in October 1979 he started a course at the University of Newcastle to read for a degree. He claims to be entitled to an award as of right on the ground that he was “ordinarily resident” in the United Kingdom for the relevant three years from October 1976 to October 1979.

        

Barnet London Borough Council have refused any award to Jitendra. He is at the university. No doubt his parents or his brother have paid his fees. But still he claims to be entitled to an award as of right.

        

Hamid Akbarali is now 24. He was born in Pakistan, but is a citizen of the United Kingdom and Colonies. He came here at the age of 18 in January 1975 on a student’s visa, and has been granted yearly student’s visas since then. He went daily to schools here from January 1975 to September 1978. He lived at King’s Road, Chelsea, in a rented flat. In October 1978 he started at Chelsea College in London, studying for a B.Sc. degree. The relevant three years are from October 1975 to October 1978. During that time he returned to Pakistan twice on holiday, visiting his mother in 1977 and 1978. Brent London Borough Council refused him an award.

        

Abu Abdullah is nearly 24. He was born in Bangladesh, and is a citizen of Bangladesh. He came to England in November 1975 on a student’s visa, which has been renewed every year. He lived here and went daily to the Shrewsbury Technical College. He went back there in July 1977 for a six-week holiday to visit his mother. In September 1979 he started a course at the South Bank Polytechnic in London, where he is studying for a B.Sc. degree. The relevant three years are from September 1976 to September 1979. Shrewsbury County Council have refused him an award.

        

Joanne Ablack is very different from all the others. She was born here in Hertfordshire in December 1959. She is a citizen of the United Kingdom and Colonies by birth and has the right of abode here. She is a patrial. Her father (who came from Trinidad) was then working for the B.B.C. Her first three years were here, but then her father joined the government service of Trinidad. She was with her father and mother in various countries until she was 13. Then her father was appointed a counsellor of the High Commission of Trinidad and Tobago in London. He was here for six years from 1972 to 1978. She lived with the family at their London home from age 13 to age 20. Then in July 1978 her father went back to Trinidad, but she remained in England. She has done exceptionally well in her studies. In October 1978 she commenced a course at Leeds University for a degree. The relevant three years are from October 1975 to  [*719]  October 1978. She asked for an award but the Inner London Education Authority have refused it on the ground that when she lived with her parents here until July 1978, she was not “ordinarily resident” here, because her father was a diplomat, and had the privileges and immunities accorded to a diplomat.

 

Madjid Shabpar is very different again. He is now 31 and is a citizen of Iran. He came here in 1971 at the age of 21 on a student’s visa. It was renewed annually during his studies. He has lived here ever since. In February 1975 he married a Swiss girl who was working here at St. George’s Hospital under a work permit. She had been here since 1944. This entitled them both in due course to indefinite leave to remain. On May 3, 1978, all conditions were reviewed and he was told by the Home Office that he was free to remain permanently in the United Kingdom. His wife and he are, however, now divorced, and she has returned to Switzerland. He started a course at Brunel University in October 1980. The relevant three years are from October 1977 to October 1980. From May 1978 to October 1980 his stay was free of conditions. But from October 1977 to May 1978 it was subject to the ordinary student’s conditions. But if he had applied earlier, the conditions would have been lifted before October 1977.

 

The law

 

The relevant statute is section 1 (1) of the Education Act 1962, which says:

 

“It shall be the duty of every local education authority, subject to and in accordance with regulations made under this Act, to bestow awards on persons who - (a) are ordinarily resident in the area of the authority, and (b) possess the requisite educational qualifications, in respect of their attendance at courses to which this section applies.”

        

Regulation 13 of the Local Education Authority Awards Regulations 1979 provides:

        

“An authority shall not be under a duty to bestow an award in respect of a person’s attendance at a course - (a) upon a person who has not been ordinarily resident, throughout the three years preceding the first year of the course in question, in the United Kingdom….”

        

On reading those provisions, it is clear that everything depends on the meaning of “ordinarily resident” in the context of this Act and these Regulations.

        

The tests in the cases

        

Three tests have been adumbrated in the cases. First, was England his real home? Or was his real home overseas? That is the test in Stransky v. Stransky [1954] P. 428, and the departmental circular (Department of Education and Science memorandum to local education authorities, January 27, 1978). Secondly, was his purpose in being here a specific or limited purpose, such as education? Or was it for the general purpose of living here? That is in Reg. v. Barnet London Borough Council, Ex parte  [*720]  Nilish Shah, ante. Thirdly, what was his intention at the relevant time? Was it his intention to live and remain here permanently? Or only for a time? That is in Cicutti v. Suffolk County Council [1981] 1 W.L.R. 558.

 

The tests submitted by counsel

        

Three tests have been submitted to us by counsel. First, by Mr. Lester: was his habitual residence here? Secondly, by Mr. Scrivener: his residence must be as of right and not of sufferance. It must not be for a limited purpose only. He must sever all connection with his place of origin. Thirdly by Miss Appleby: he must be living here and entitled to be here permanently as part of the general community.

 

When applied throughout the three years, Mr. Lester’s test would let all these six applicants in. The others would shut them all out.

 

Statutory interpretation

 

This case brings us face to face with a new exercise in statutory interpretation. Traditionally we ought simply to apply the natural and ordinary meaning of the two words “ordinarily resident” in the context of this statute in 1962 at the time when it became law. If we were to do that here, I feel I would apply the test submitted by Mr. Lester. 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. On that test all those students would qualify for a mandatory award. But it must be remembered that Parliament in March 1962, when this statute was passed, had no idea of what was to come in the next 20 years. At that time there was no restriction whatever on young people coming here from the Commonwealth to study at school or university. Even in the first statute which controlled entry - the Commonwealth Immigrants Act 1962 - students from the Commonwealth were allowed to come in freely, without being subject to any conditions: see section 2 (3) (b). Many did so. As soon as they had lived here for three years, they became entitled to receive - and did receive - mandatory awards. I well remember many law students staying on here, receiving grants from local education authorities, and failing the examinations time after time and year after year.

        

Since 1971 everything has changed. Under the Immigration Act 1971 and the Rules thereunder, students can no longer come in freely without conditions. They are invariably subject to conditions under which they have to pay their own way whilst they are here, and have to leave at the end of their course of study. This is a state of affairs which was never envisaged by Parliament in 1962. If it had been envisaged, what would Parliament have done? Would it have inserted a definition of “ordinarily resident” so as to exclude them? Presumably not. Because in the Education Act 1980, when all the difficulties are apparent, Parliament has used the same two words “ordinarily resident” without any elucidation.

        

In these circumstances I think we must abandon our traditional method of interpretation. The rebuffs in Magor and St. Mellons Rural District Council v. Newport Corporation [1952] A.C. 189 no longer hurt. We must  [*721]  Ourselves fill in the gaps which Parliament has left. We must do our best to legislate for a state of affairs for which Parliament has not legislated. We must say what is the meaning of the words “ordinarily resident” in the context of the situation brought about by the Immigration Act 1971.

        

On this approach, it is my opinion that, whenever a boy comes from overseas on a student’s visa, which is renewed every year, he is not to be regarded as “ordinarily resident” here. He is allowed to enter on the terms that he or his parents or friends will pay all his fees and expenses whilst he is here, and that he will leave this country when his leave comes to an end. Such a boy is not “ordinarily resident” here. No matter whether he goes home for holidays or not. No matter whether his parents are dead and he has no home to go to overseas. Suffice it that he has to leave at the end of his time, unless renewed.

        

This shuts out Jitendra Shah, Hamid Akbarali, Abu Abdullah and Madjid Shabpar. I regard Cicutti v. Suffolk County Council [1981] 1 W.L.R. 558 as being wrongly decided. In coming to this conclusion, I am much influenced by the observations of Ormrod L.J. in Reg. v. Barnet London Borough Council, Ex parte Nilish Shah, ante, p. 704E-F:

        

“it is almost inconceivable that Parliament could have intended to bestow major awards for higher education, out of public funds, on persons permitted to enter this country on a temporary basis, solely for the purpose of engaging in courses of study at their own expense. Such an improbable result is not to be accepted if it can properly be avoided.”

 

I would not shut out Nilish Shah. He came here in 1976 “for settlement,” and has been on indefinite leave here ever since. He has resided here just as any other youngster of his age who is living here. He is “ordinarily resident” here.

        

I would not shut out Miss Ablack. She is a patrial with a right of abode here. Although her father was here during part of the relevant time as a diplomat, she was herself here as of right. If she had not lived in his house but with friends, no one could doubt that she was “ordinarily resident” here. It is no different simply because she lived in her father’s house.

        

I would shut out every illegal entrant, no matter how long he has remained here undiscovered. Although he has made his permanent home here, he cannot be regarded as “ordinarily resident” here. I would shut out everyone for such time as he is here on a work permit. He, too, cannot be regarded as “ordinarily resident” here.

        

One word on procedure. I think it was very proper to bring these cases by way of judicial review.

        

I would quash the decision of Barnet London Borough Council in Nilish’s case, and of the Inner London Education Authority in Miss Ablack’s case, and remit them for reconsideration. I would refuse to quash the others.

        

EVELEIGH L.J.  The description “ordinarily resident” has been used in a number of statutes, for example the Military Service Act 1916, the  [*722]  National Service Act 1948, the Law Reform (Miscellaneous Provisions) Act 1949, the Commonwealth Immigrants Act 1968, the Immigration Act 1971, and others. It appears as a commonplace expression unbridled by technicalities and as one used to mean what it says. None of the statutes has attempted a definition. Decided cases may help us if in doubt as to its meaning, but even in a language as rich as ours the meaning attributed under one statute may not be precisely applicable under another. This is because the meaning prima facie attributable to a word or phrase is modified by its context.

 

I start by saying this because in the course of argument decisions on the meaning of “ordinarily resident” have been referred to; but they have been authorities which have interpreted the expression in cases other than those arising under the Education Act 1962. While broadly speaking the phrase may have a common meaning, nonetheless in borderline cases other factors may have to be invoked, such as the context and other contrasting expressions in the same statute. Thus “ordinarily resident” may be found contrasted with residence for a particular purpose or “temporary residence.” I, therefore, do not derive much assistance from comparing the facts of other cases cited to us where the expression appears in different statutes. They may be a guide where guidance is needed but one must be very careful before treating them as anything more.

 

A person is resident where he resides. So far for the purpose of this case there is little difficulty. But when is he “ordinarily resident”? I think that it is when he resides there in the ordinary way. That must be the meaning of the adverb. The expression is, therefore, contemplating residence for the purposes of everyday life. It is residence in the place where a person lives and conducts his daily life in circumstances which lead to the conclusion that he is living there as any ordinary member of the community would live for all the purposes of his daily life. In the course of argument we were presented with a selection of definitions of “ordinarily resident.” At one time I thought we were being asked to equate it to the meaning of the right of abode in section 2 of the Immigration Act 1971. But section 2 (3) (d) itself reads:

 

“subject to section 8 (5) below, references to a person being settled in the United Kingdom and Islands are references to his being ordinarily resident there without being subject under the immigration laws to any restriction on the period for which he may remain.”

        

It is quite clear, therefore, that in so far as the Immigration Act 1971 is concerned the expression “ordinarily resident” is something less than that of having the right of abode. Nonetheless when a person asserts a claim upon the basis of being “ordinarily resident” he must also be in a position lawfully to claim that status. A person, therefore, who would appear to be “ordinarily resident” to anyone observing the way in which he is living will not be able to substantiate his claim if he is not entitled lawfully so to live. It may well be that for the purposes of taxation he will not be allowed to deny his apparent status. When he seeks to claim a benefit from the state, however, the position will be different. Then it will be necessary to show that he has the right or permission to live here in

 [*723]  The manner which has led to the conclusion that he is living as any ordinary member of the community may live. On this basis I approach the cases before the court, and with the immigration legislation in mind.

 

Nilish Shah lived here not only for the purposes of education but for his life in all its aspects. The only question to my mind is whether or not he did so lawfully. He came in the right of his parents. His parents returned to the country of their departure after some five weeks. This arouses the strongest suspicion that their visit was a subterfuge to form a foundation for a claim by their son. The suspicion is so strong that I am almost forced to regard it as a probability. However, Barnet London Borough Council do not take the point. They accept that the parents’ arrival in this country was genuinely for the purpose of settlement. Consequently, I do not feel it open to me to indulge my suspicion. I, therefore, am unable to approach this case upon the basis that Nilish Shah or his parents practised any deception, and conclude that as he was living here in the way that anyone who intended to make his permanent home would live his daily life, he was “ordinarily resident.”

 

Hamid Akbarali came here for education. He had no right or permission to live here for all general purposes. Whatever his desire, his permission only extended to living here for the purpose of education. Such a limited purpose could not entitle him to be classed as being “ordinarily resident.” The same considerations apply to Abu Abdullah. I also regard Jitendra Shah as excluded. He had no right or permission to be here other than for the purpose of education. Madjid Shabpar must also be excluded for the same reasons. What his position would have been had he made the necessary application to the authorities is irrelevant. During the relevant period of three years he was living here by virtue of his permission to be here as a student.

 

Joanne Ablack was living here for all the ordinary purposes of daily life even though the reason for her being here was because her father was here as a diplomat. Most members of a diplomatic household are here by virtue of a limited and special right vested in a diplomat. This is a right given to live here in a way which is special and privileged and cannot be said to be like that of an ordinary member of the community. Miss Ablack, on the other hand, did have the right of abode. That distinguishes her case from that of many other members of a diplomatic household. I would allow her claim.

 

Although I have concluded that Madjid Shabpar has not established that he was “ordinarily resident” for the requisite period, his appeal raises another point. Section 1 (4) of the Education Act 1962 gives the authority the discretion to make an award even though the applicant does not qualify as of right. It provides:

 

“Without prejudice to the duty imposed by subsection (1) of this section, a local education authority shall have power to bestow an award on any person in respect of his attendance at a course to which this section applies, where he is not eligible for an award under subsection (1) of this section in respect of that course.”

 

Mr. Nathan has submitted that the authority should have considered the  [*724]  pplicant’s case and then decided whether or not to exercise their discretion in his favour. In the letter of February 20, 1981, written by the Director of Educational Services, it was said: “In order to qualify for a major award an applicant must have been ordinarily resident within the British Isles throughout the three years prior to September 1 in the year the course starts.” It was then pointed out that restrictions on his stay were not removed until May 1978 and that ordinary residence did not commence until that date. No mention was made of the discretionary power under section 1 (4).

        

In my opinion there is no obligation upon an authority to consider an application from the point of view of its discretionary power. It may do so, but I cannot read into the Act any duty upon it so to do. The Act itself lays down no criteria for the exercise of this discretion. It is exercisable in respect of “any person” and this indicates to my mind that no particular person or class of persons are contemplated as beneficiaries so as to create in them a right to be considered.

        

I agree with the order proposed by Lord Denning M.R.

        

TEMPLEMAN L.J.  By section 1 (1) and (2) of the Education Act 1962, it is the duty of every local education authority, subject to and in accordance with regulations made under the Act, to bestow on persons who are “ordinarily resident” in the area of the authority, awards in respect of their attendance at universities and similar establishments for first degree courses. The awards consist of payments for educational fees and for the maintenance of the student. The amount of the maintenance grant is means tested by reference to the income and financial circumstances of the claimant and his parents. Each claimant for an award who is a party to one of the present appeals attends a first degree course, and applied for and was refused a mandatory award pursuant to the Act. The Education Act 1962 was amended from time to time and has now been replaced by the Education Act 1980, but these statutory changes are not material.

        

By regulation 13 (a) of the Local Education Authority Awards Regulations 1979, made under the Education Act 1962, an authority is not under a duty to bestow a mandatory award upon a person who has not been ordinarily resident in the United Kingdom throughout the three years preceding the first year of the course for which an award is claimed. The Regulations of 1979 are not significantly different from earlier regulations which they replaced or from subsequent regulations. The question in each of the present cases is whether the claimant was ordinarily resident in the United Kingdom during the relevant three-year period.

        

The Education Act 1962 was passed in the context of the programme of education peculiar to the United Kingdom, that is to say, primary education until about 12, followed by secondary school education, public or private, until the age of 18 or thereabouts, followed by entry upon a first degree course at a university or similar establishment. The educational qualifications for entry on a first degree course are the attainment of prescribed standards in examinations which must be surmounted at the conclusion of secondary education or proof of equivalent educational attainments. In the ordinary course of events students proceed from  [*725] Secondary education to a university or similar establishment at about the age of 18 and they are accordingly between the ages of 15 and 18 during the three preceding years when, in order to qualify for a mandatory award under the Act, they must be ordinarily resident in the United Kingdom. Some students, however, for diverse reasons begin a first degree course when they are older than the average. In the present appeals the youngest claimant was 18 and the oldest was 30 at the date of entry on a first degree course at a university.

        

The claimant Nilish Shah was born on July 15, 1959, in Kenya and is a citizen of that country and holds a Kenyan passport. On August 1, 1976, his parents arrived in the United Kingdom for settlement and were accompanied by Nilish. On September 10, 1976, the parents of Nilish returned to Kenya leaving Nilish in this country in the charge of a grandfather and an uncle. He was accepted for a first degree course in Manchester in 1979 and applied for a mandatory award under the Act. The question is whether Nilish was ordinarily resident in the United Kingdom between September 1, 1976, and September 1, 1979, when he was between the ages of 17 and 20.

        

He went back to Kenya for his summer holidays in 1977 and 1978, but apart from these visits he remained in the United Kingdom throughout the relevant three-year period. He was given indefinite leave to remain in the United Kingdom when he arrived in 1976 and has been settled here ever since.

        

Jitendra Shah was born on July 19, 1959, in Kenya. He is a citizen of the United Kingdom and Colonies and holds a British passport. He entered the United Kingdom on June 20, 1976, as a student entrant for the purpose of pursuing secondary education. He lived with his elder brother who assumed full custody and control, including responsibility for maintenance, schooling and upbringing of his younger brother. Jitendra’s parents remained in Kenya, but Jitendra never went back to visit them. He went to school in this country and was then accepted for a first degree course at Newcastle in 1979. The question is whether Jitendra was ordinarily resident in the United Kingdom between September 1, 1976, and September 1, 1979, when he was between the ages of 17 and 20.

        

As a student entrant, Jitendra was only allowed to enter the United Kingdom for the purpose of pursuing a specified course of study, after satisfying the immigration authorities that he could maintain himself in this country and on the understanding that he would leave this country and could be compelled to leave on the conclusion of his education. But Jitendra at all material times wished to live permanently in this country. There is evidence that Kenya might not re-admit him because he holds a British passport, and in these circumstances the immigration authorities will probably allow Jitendra to remain in the United Kingdom indefinitely after he has completed his education and ceased to be a student.

        

Hamid Akbarali was born on February 14, 1957, in Pakistan. He is a citizen of the United Kingdom and Colonies and holds a British passport. He went to Kenya in 1961, his father died, and in 1974 his mother returned to Pakistan with Hamid. On January 18, 1975, Hamid entered the United Kingdom as a student entrant and was able to maintain himself and pass  [*726] The examinations necessary for him to be accepted for a first degree course at Chelsea College in 1978. The question is whether Hamid was ordinarily resident in the United Kingdom between September 1, 1975, and September 1, 1978, when he was between the ages of 18 and 21.

        

He went back to Pakistan for two short visits in 1977 and 1978. As a student entrant he was admitted to the United Kingdom on the same terms and conditions as Jitendra. He can be obliged to leave the United Kingdom on the conclusion of his studies, but his mother hopes to come here from Pakistan and settle here. Hamid does not wish to leave the United Kingdom, and there is evidence that the Pakistan authorities might not readmit him into Pakistan because he holds a British passport. In these circumstances, the United Kingdom authorities will probably allow Hamid to remain in the United Kingdom indefinitely after he has completed his education and ceased to be a student.

        

Abu Abdullah was born on November 15, 1957, in Bangladesh and is a citizen of Bangladesh. His father died in 1970, his widowed mother remained in Bangladesh, and on November 12, 1975, Abu entered the United Kingdom as a student entrant and went to live with an uncle. He passed the necessary examinations which enabled him in 1979 to begin a first degree course at the South Bank Polytechnic and he applied for a grant under the Act. The question is whether Abu was ordinarily resident in the United Kingdom between September 1, 1976, and September 1, 1979, when he was between the ages of 19 and 22.

        

He went back to Bangladesh in 1977 for six weeks. As a student entrant he was admitted to the United Kingdom on the same terms and conditions as Jitendra and Hamid, but in his case there are no circumstances which give Abu any expectation of remaining in the United Kingdom after the conclusion of his studies, but he would like to stay here permanently and may be granted leave to stay here indefinitely when he ceases to be a student.

        

Joanne Ablack was born on December 11, 1959, in this country. She came to live in this country in 1972. She did not enter the United Kingdom as a student entrant because she was, and has remained, entitled to live here permanently. Between 1972 and 1978 she lived with her father, who is a citizen of Trinidad, and was a diplomat in the service of the government of Trinidad in London until he returned to Trinidad in 1978. Joanne continued to live in this country. She went to school here and in 1978 began a first degree course at Leeds University and applied for an award. The question is whether she was ordinarily resident in the United Kingdom between September 1, 1975, and September 1, 1978, when she was between the ages of 15 and 18.

        

Madjid Shabpar was born on June 2, 1950, in Iran. In September 1971 Madjid entered the United Kingdom as a student entrant, was educated here, and on February 1, 1975, married a Swiss girl who was in England under a work permit. As a student entrant Madjid was admitted to the United Kingdom on the same terms and conditions as Jitendra, Hamid and Abu. Madjid renewed his student visa in April 1977 although, in view of his marriage, he might at that date have applied for leave to stay here indefinitely. He applied the following year and on May 3, 1978, was informed  [*727]  By the Home Office that he was free to remain permanently in the United Kingdom. In 1980 he began a course at Brunel University which qualified him for a mandatory award under the Act provided he was ordinarily resident in the United Kingdom between September 1, 1977, and September 1, 1980, when he was between the ages of 27 and 30.

        

Each counsel who represented a claimant naturally stressed the circumstances of his client which constituted some link with the United Kingdom and those circumstances which distanced his client from his country of origin. Thus on behalf of Jitendra Shah it was pointed out that he had never returned to Kenya on holiday and that his brother had taken over parental responsibility for him in this country.

        

In my judgment, when local education authorities concerned with many thousands of applicants for mandatory awards consider whether a student has been ordinarily resident in the United Kingdom for three years, they cannot investigate or weigh in the balance and were never intended to investigate or weigh in the balance the domestic arrangements of each student, the frequency of his visits abroad or any other circumstances peculiar to each student.

        

On behalf of each claimant counsel also stressed, where the evidence permitted, the intention of the claimant to stay permanently in this country, the formation of that intention before the relevant three-year period began, and the degree of hope or expectation of the claimant that he would be allowed to stay in the United Kingdom indefinitely after he ceased to be a student.

 

But again, in my judgment, local education authorities cannot investigate and weigh in the balance and were never intended to investigate or weigh in the balance the genuineness or date of the intention of any claimant with regard to his future after he ceases to be a student, or the speculative hopes and varying degrees of expectation of a claimant who is not entitled as of right to remain in the United Kingdom after he ceases to be a student. Local education authorities are under a positive duty to bestow awards on persons who qualify for those awards, and they can only perform that duty consistently and with certainty if they are able to judge on the facts whether a claimant is or is not entitled to an award.

 

In my judgment, therefore, the inevitable result of submissions made by counsel on behalf of the claimants would be that every student who is present in the United Kingdom, whether or not interrupted by holidays abroad, for the purpose of pursuing a course of study which, in fact, endures for at least three years immediately before he enters on a first degree course, is ordinarily resident for the purposes of the Education Act 1962 throughout his presence in the United Kingdom and qualifies for a mandatory award under the Act.

 

If Parliament intended to confer a right to an award on every student who attended school in the United Kingdom for at least three years immediately prior to proceeding to study for a first degree at a university or similar establishment, the Education Act 1962 is not aptly worded for that purpose.

 

It is improbable that the Education Act 1962 was intended to entitle overseas students to a mandatory award. The Education Act effects a  [*728]  redistribution of revenue in favour of students and parents of students. Parents ordinarily residing in this country will have contributed to that revenue in the past; students, other than overseas students, can be expected to contribute to the United Kingdom revenue in the future. Parents of overseas students and overseas students themselves who leave the United Kingdom after they have completed their education rarely if ever contribute to the revenues of the United Kingdom at any time, and it is unlikely that the Education Act was intended to include them in the compulsory redistribution of revenue which is effected by the Act.

 

There are cogent reasons for Parliament to assist poorer nations by providing educational facilities and cogent reasons why, in the interests of this country, financial support should be forthcoming to enable meritorious overseas students from poorer countries to pursue their education in this country. But the rules which govern student entry from overseas and the provisions of the Education Act 1962 do not constitute appropriate machinery for providing and distributing financial assistance to overseas students. An overseas student, whether from the Commonwealth or foreign countries, on entry to this country must show that he has been accepted by the school he proposes to attend, but he is not required to attain any prior educational standard, competitive or otherwise, before he is allowed to enter this country to pursue a course of study at primary or secondary schools. An overseas student is not allowed to enter the United Kingdom for the purpose of primary or secondary education unless he satisfies the immigration authorities that he can maintain himself and pay for his education. Thus in general the overseas students who are present in the United Kingdom for three years prior to their first degree course are not chosen by merit or by competition. They come from poorer nations like Bangladesh, but also from richer nations like the United States, and they must be able to afford to live in this country for at least three years at their own expense or at the expense of their relatives and connections. There is no reason why they should all qualify for mandatory awards to the total exclusion of their compatriots who are not able to spend three years in the United Kingdom before beginning a first degree course, but nevertheless are accepted for a first degree course in this country.

 

If Parliament wished that all overseas students should be entitled to mandatory awards provided they succeeded in educating themselves in the United Kingdom for the three years preceding their first degree course, I would expect Parliament to have made their decision clear and to have omitted or defined the test of ordinary residence. The economic climate is unhelpful to the encouragement of overseas students, but that consideration cannot affect the construction of the Education Act 1962 or the resolution of the present appeals. The question is whether the Act of 1962 on its true construction and against the background I have mentioned includes overseas students within the ambit of persons entitled to mandatory awards.

 

The submissions on behalf of the claimants do not allow for any material distinction between a person who is resident in the United Kingdom and a person who is ordinarily resident in the United Kingdom. It was submitted that there was no distinction and it may be that in other  [*729]  Contexts there is little or no distinction, but in my judgment in the context of the Education Act 1962 there is a logical distinction between the residence and ordinary residence of a student, and I am not prepared to construe the Act by ignoring the fact that it refers to ordinary residence. The term “ordinary residence” implies a home. The term “residence” includes an abode which may be occupied otherwise than for the purpose of constituting a home. An overseas student is a person who is only entitled to be admitted to the United Kingdom for the purpose of studying; he resides in the United Kingdom in order that he may pursue his studies and he is not allowed to remain in the United Kingdom for the purpose of making a home.

        

The ordinary residence of an overseas student normally remains in his country of origin so long as he has a home there. If he ceases to have a home overseas, he will cease to be ordinarily resident overseas but he will not thereby become ordinarily resident in the United Kingdom. He will not become ordinarily resident in the United Kingdom unless and until he becomes entitled to remain in the United Kingdom indefinitely. He will not cease to be an overseas student or become ordinarily resident in the United Kingdom unless and until he becomes entitled to make a home in the United Kingdom. The education in the United Kingdom of a person who is entitled to remain in the United Kingdom indefinitely is ancillary to his ordinary residence in the United Kingdom. The residence of an overseas student in the United Kingdom is ancillary to the education for which purpose alone he is present in the United Kingdom.

        

An overseas student has no right to remain in the United Kingdom after he has ceased to be a student, and is not ordinarily resident in the United Kingdom because he is resident in this country for educational purposes only, and not for the purpose of making a home indistinguishable from the home of those who are residing in this country for all purposes.

        

On these appeals it is unnecessary to consider the position of a person who is admitted to the United Kingdom for a fixed period (which may be extended) for the purpose of taking up specified employment and subject to a prohibition against taking other employment without leave. But as at present advised I consider that the position of such a person and his dependants is indistinguishable from the position of a student entrant, for the purposes of the Education Act 1962. They are all present in the United Kingdom for limited purposes and are not to be treated as ordinarily resident in the United Kingdom.

        

An overseas student will acquire ordinary residence in the United Kingdom if he ceases to be an overseas student. Thus if the parents of an overseas student become ordinarily resident in the United Kingdom, that is to say if they become entitled to make a home in the United Kingdom indefinitely, and if the student thereby becomes entitled to remain in this country indefinitely, the student will cease to be an overseas student and may become ordinarily resident in the United Kingdom, because the quality of his residence will no longer be governed by his status as a student. Similarly, if an overseas student is formally adopted by a parent who is ordinarily resident in the United Kingdom, then the student will become ordinarily resident in the United Kingdom, because he will become  [*730]  Qualified for the same rights as his adopted parent, and the student’s quality of residence in this country will no longer be governed by his status as a student. And if for any other reason an overseas student succeeds in becoming entitled to reside in the United Kingdom as of right and thus free to make his home here he will become ordinarily resident in the United Kingdom.

        

In every case, therefore, the local authority must only consider whether the claimant for a mandatory award was resident in the United Kingdom during the relevant three-year period as an overseas student. The applicant will be an overseas student if he was only allowed to enter the United Kingdom for the purposes of study and he will remain an overseas student unless and until he becomes entitled to remain in the United Kingdom indefinitely. While the Education Act 1962 must not be construed by reference to the Immigration Act 1971, it is the fact that the provisions of the Immigration Act enable an overseas student to be identified for the purposes of the Education Act.

 

Applying these principles to the present claimants: Nilish Shah did not enter the United Kingdom as an overseas student but as a person entitled to remain in the United Kingdom for an indefinite period. That was his status in the United Kingdom between September 1, 1976, and September 1, 1979. He was entitled to make his home here notwithstanding that the home of his parents was in Kenya. He was not an overseas student but a resident of the United Kingdom pursuing his education in the United Kingdom. In my judgment he is entitled to a mandatory award.

 

Jitendra Shah was admitted to the United Kingdom as an overseas student and he remained an overseas student during the relevant three years from September 1, 1976, to September 1, 1979. He was not present in the United Kingdom in any other capacity. He was thus resident but not ordinarily resident in the United Kingdom, and does not qualify for a mandatory award.

        

Hamid Akbarali was also admitted to the United Kingdom as an overseas student and remained an overseas student during the relevant three years from September 1, 1975, to September 1, 1978. He, therefore, does not qualify for a mandatory award.

        

Abu Abdullah also was only allowed to enter the United Kingdom as an overseas student and remained an overseas student between September 1, 1976, and September 1, 1979, and is not entitled to a mandatory award.

        

Joanne Ablack entered this country as of right and remained in the United Kingdom between September 1, 1975, and September 1, 1978, as of right. She was resident in the United Kingdom pursuing her education in the United Kingdom. She was not an overseas student present in this country for the limited purpose of education and for no other reason. Her father was a diplomat; he might or might not have been ordinarily resident in the United Kingdom and he might have changed the residence of his daughter by taking her back to Trinidad at any time. But none of these possibilities is relevant. In the event Miss Ablack became and remained ordinarily resident in this country, and in my judgment she is entitled to a mandatory award.

        

Madjid Shabpar was admitted as an overseas student. It appears from  [*731]  The evidence that if he had chosen to do so he could have changed his status in April 1977 and ceased to be an overseas student, becoming entitled to remain in this country indefinitely. Unfortunately for Mr. Shabpar he took no steps to alter his status but, on the contrary, renewed his student’s visa in April 1977. Between September 1, 1977 and May 3, 1978, therefore, he remained an overseas student. On May 3, 1978, he ceased to be an overseas student because he then became entitled to reside in the United Kingdom indefinitely. But he was not ordinarily resident for the whole of the relevant three-year period between September 1, 1977, and September 1, 1980. He does not, therefore, qualify for a mandatory award. Of all the claimants, he appears to have the most cogent claim for consideration for a discretionary award. By section 1 (4) of the Education Act 1962 a local education authority is entitled, but not bound, to bestow awards in respect of a first degree course on any person who does not qualify for a mandatory award.

 

Mr. Lester, who appeared for two of the claimants and whose main submissions were adopted by counsel for the other claimants, based his arguments on certain observations in Gout v. Cimitian [1922] 1 A.C. 105 and Inland Revenue Commissioners v. Lysaght [1928] A.C. 234. Mr. Lester submitted that the test of ordinary residence was residence which is regular, normal, habitual, and part of the ordinary order of a person’s life or residence in a place with some degree of continuity apart from accidental or temporary absences. These tests are difficult or impossible for local education authorities to apply unless, as I apprehend to be the case, an overseas student who is only allowed to enter and remain in the United Kingdom for the duration of a specified course of study does not reside in the United Kingdom as part of the ordinary order of a person’s life but for the limited purposes of education.

 

We were referred to In re Norris (1888) 4 T.L.R. 452. A bankrupt was ordinarily resident in Brussels, but he was also held to be ordinarily resident at the same time in London because during a period within a year before the presentation of a bankruptcy petition, the bankrupt had ordinarily resided in a room at a hotel in London which he retained whether he occupied it or not, and from which he addressed business letters. This case demonstrates that it is possible for one person to be ordinarily resident in two countries at the same time. It also demonstrates that ordinary residence in this country is not difficult to acquire for the purposes of the bankruptcy laws by a debtor who incurs debts in this country. The case does not shed any light on the question whether an overseas student is ordinarily resident in the United Kingdom for the purposes of the Education Act 1962.

        

In Gout v. Cimitian [1922] 1 A.C. 105 the respondent, an Ottoman subject, removed his home, his family and his business to Cyprus in 1913, and it was held that “if there is any difference between ‘resident’ and ‘ordinarily resident,’” the respondent was ordinarily resident in Cyprus on November 5, 1914: see per Lord Carson, at p. 110. This case did not decide that there can be no distinction between residence and ordinary residence and is of no assistance in the context of the Education Act 1962 and in the context of overseas students.  [*732]  Levene v. Inland Revenue Commissioners [1928] A.C. 217 decided on the facts of that case that no appeal lay from a finding of fact by the special commissioners in income tax that a taxpayer was resident and ordinarily resident in the United Kingdom. Viscount Cave L.C. said, at p. 225, that in the Income Tax Acts ordinary residence

        

“is contrasted with usual or occasional or temporary residence;… it connotes residence in a place with some degree of continuity and apart from accidental or temporary absences. So understood the expression differs little in meaning from the word ‘residence’ as used in the Acts; and I find it difficult to imagine a case in which a man while not resident here is yet ordinarily resident here.”

        

Lord Warrington of Clyffe said, at p. 232, that if ordinary residence “has any definite meaning I should say it means according to the way in which a man’s life is usually ordered.”

        

In Inland Revenue Commissioners v. Lysaght [1928] A.C. 234 the House of Lords held that there was no evidence upon which the special commissioners were entitled in that case to hold that the taxpayer was ordinarily resident in the United Kingdom when he only made monthly visits of about a week to the United Kingdom solely for business purposes and stayed at an hotel. Viscount Sumner said, at p. 243:

        

“I think the converse to ‘ordinarily’ is ‘extraordinarily’ and that part of the regular order of a man’s life, adopted voluntarily and for settled purposes, is not ‘extraordinary.’”

        

Lord Buckmaster said, at p. 248, that the words ordinarily resident meant “no more than that the residence is not casual and uncertain but that the person held to reside does so in the ordinary course of his life.”

        

In my judgment a foreign student who is only allowed to enter the United Kingdom and only resides in the United Kingdom for the purpose of undertaking a defined course of study over a limited period and for no other purpose is not residing as part of the regular order of his life adopted voluntarily and for settled purposes or in the ordinary course of his life.

        

In Miesegaes v. Inland Revenue Commissioners (1957) 37 T.C. 493 it was held that the special commissioners had evidence before them on which they could properly reach the conclusion that a schoolboy who was ordinarily resident in the United Kingdom did not cease to be ordinarily resident in the United Kingdom for the purposes of the Income Tax Acts when his parents removed to Switzerland leaving him at school in the United Kingdom. There was very little discussion of the distinction between residence and ordinary residence. The taxpayer did not enter the United Kingdom as an overseas student. I do not find this decision relevant to the Education Act 1962 or to the circumstances of the present claimants.

        

In In re P. (G. E.) (An Infant) [1965] Ch. 568, 585, Lord Denning M.R. said that the ordinary residence of a child of tender years, for example under the age of 16, who could not decide for himself where to live, was the home of his parents even while he was away at boarding school. This court reached that conclusion for the purpose of exercising jurisdiction  [*733]  over an infant who had been removed from the United Kingdom. Nevertheless the approach of Lord Denning M.R. is consistent with the proposition that an overseas student is ordinarily resident in his country of origin and not in the country where he is studying.

        

In Clarke v. Insurance Office of Australia Ltd. [1965] 1 Lloyd’s Rep. 308, Smith J. sitting in the Supreme Court of Victoria, Australia, construing a policy of insurance held that a schoolgirl was ordinarily resident with her father. He said, at p. 311:

        

“the fact that more time was being spent at boarding school than at the parents’ home is… entirely outweighed by the circumstances that the infant’s permanent home had at all times… been with her parents, that the time spent at the school was for the special purpose of education, that the connection with the parents’ home and household had never been severed, and that they obviously intended to maintain the connection while the infant’s mode of living remained under their control.”

        

In Fox v. Stirk and Bristol Electoral Registration Officer [1970] 2 Q.B. 463, this court held that an undergraduate living in rooms in authorised halls of residence, or in college, in the parliamentary constituency of a university on the qualifying date for registration under the Representation of the People Act 1949, was entitled to be registered on the ground that the undergraduate was “resident” in the parliamentary constituency on the qualifying date. This case was not concerned with ordinary residence and was decided in the context of the Representation of the People Act 1949, and I do not find it of any assistance in the present appeals.

        

In Cicutti v. Suffolk County Council [1981] 1 W.L.R. 558 an overseas student whose country of origin was Italy was allowed to enter the United Kingdom for the purpose only of pursuing his education and his leave to do so was progressively extended. It was held that the overseas student became ordinarily resident in the United Kingdom as soon as he formed a genuine intention to remain in this country permanently for the general purpose of living here, and providing the intention was genuine it did not have to be supported by a physical presence such as a home or bank account in the United Kingdom or severance from the previous residence abroad. The sojourn in this country had to be of sufficient length and continuity to show the quality of ordinariness in the residence. In my judgment ordinary residence cannot depend on proof of the subjective intention of an overseas student, amounting to no more than a hope or expectation that he will be allowed to change his status from that of overseas student to that of ordinary resident. I find it impossible to estimate a sufficient length of sojourn to show the quality of ordinariness. I am afraid I cannot accept the reasoning or the result of this case.

        

The authorities do not alter my view that in the context and against the background of the Education Act 1962 overseas students, that is to say, persons who are admitted to and are present only for the limited purpose of pursuing a course of study, are not ordinarily resident in the United Kingdom during their period of study. I would allow the appeal of Joanne Ablack but dismiss all the other appeals. Nilish Shah and Miss Ablack  [*734]  qualified for mandatory grants but the other claimants did not qualify. The Divisional Court reached the same conclusions for broadly the same reasons in the cases of Nilish Shah and Jitendra Shah: see Reg. v. Barnet London Borough Council, Ex parte Nilish Shah, ante, p. 694C. I would uphold their decision.

 

Application of Joanne Ablack granted.

        

Council’s appeal in case of Nilish Shah dismissed.

        

Other applications and appeals dismissed.

        

Leave to appeal.