England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		7 September 2012

Robin Purchas QC :

Introduction

1. The Claimant seeks judicial review of the decision of the Secretary of State that the Claimant did not meet the ordinary residence qualification for grant under the Education (Student Support) Regulations 2009 ("the 2009 Regulations"). The Claimant was granted discretionary leave to remain on the 26 September 2009. She had entered the United Kingdom from Nigeria on the 3 August 2003 on a visitor's visa, which expired on the 2 January 2004, following which she had overstayed without leave to remain under the Immigration Act 1971 ("the 1971 Act") until discretionary leave to remain was granted in 2009. The question for determination is whether residence in this country which is unlawful under the 1971 Act can qualify as ordinary residence for the purpose of the 2009 Regulations.

Background facts

2. The case has a relatively complex factual background. However, for determining the present issue it is not necessary to set out the history in any detail. As I have indicated above, the Claimant entered this country from Nigeria in 2003 and since January 2004 was an overstayer in breach of section 24(1)(b) of the 1971 Act until discretionary leave to remain was granted in 2009.
3. In April 2006 she was a victim of a tragic domestic accident, involving the escape of carbon monoxide gas from a faulty boiler, causing her serious brain injury, as well as death and serious injury to other members of her adopted family group. While in hospital in June 2006, she instructed solicitors to apply for leave to remain, although the application was not in fact made until the 19 September 2007 after she had been released from hospital. The application was refused on 30 July 2008, but an appeal to the Asylum and Immigration Tribunal succeeded on the 4 February 2009 on human rights grounds and discretionary leave to remain was granted on the 26 September 2009.
4. In January 2010 the Claimant was accepted for a BA Degree at London Metropolitan University. On the 3 January 2010 she applied for student support from the Student Loans Company ("SLC") for the academic year 2009/2010, which was accepted. However, the university enrolled her as an overseas student, which resulted in judicial review proceedings against the university and the Secretary of State. Those proceedings ended with a consent order on the 1 September 2010, including an order that the university should treat the Claimant as a "person with leave to remain" under the Education (Fees and Awards) (England) Regulations 2007.
5. In the meantime the Claimant had been accepted for grant for the following academic year 2010/2011, but as a result of the evidence in the judicial review proceedings her past status as an overstayer had come to light, leading to cancellation of her student grant payments. The reasons were explained in a letter from the SLC dated 15 September 2010 including that the Claimant did not have the required 3 years ordinary residence prior to the 1 January 2010, having regard to her lack of any official Home Office status enabling her to remain in the United Kingdom for the earlier part of that period.
6. The Claimant's appeal against that determination was unsuccessful. The Secretary of State recovered jurisdiction over the claim on the 11 May 2011. In letters dated 2 June 2011 and 1 July 2011 the Secretary of State confirmed the decision withdrawing grant on the ground that unlawful residence could not constitute ordinary residence for the purposes of the three years ordinary residence qualification under the 2009 Regulations. Permission to seek judicial review was granted after a hearing on the 7 March 2012.

Legislative framework

7. Section 22(1) of the Teaching and Higher Education Act 1998 ("the 1998 Act") provides that regulations shall make provision authorising or requiring the Secretary of State to make grants or loans to eligible students in connection with higher education. Section 22(2) allows for regulations to determine whether a person is an eligible student and for any grant to be made available on such terms and conditions as may be prescribed. By section 23 the Secretary of State may make arrangements to delegate his functions under the Act to a specified body and in this case he has done so to the SLC. The Secretary of State retains power to recover the determination of any particular function under the Act.
8. The detailed arrangements for the payment of grant are made in regulations under those provisions. In practice, this has usually been done through regulations and/or amendments made annually. The decisions in the present case relate to the 2008 and 2009 Regulations, but it is agreed that, so far as the relevant provisions are concerned, they are identical. I will therefore only deal with the 2009 Regulations.
9. Eligibility is dealt with in Part 2 of the 2009 Regulations. By Regulation 5:

"(1) An eligible student qualifies for support in connection with a designated course subject to and in accordance with these Regulations.

(2) Subject to paragraph 3, a person is an eligible student in connection with the designated course if in assessing that person's application for support, the Secretary of State determines that the person falls within one of the categories set out in Part 2 of Schedule 1.

(3) A person ("A") is not an eligible student if

...

(d) A is in breach of any obligation to repay any loan

...

(f) A has, in the opinion of the Secretary of State, shown by A's conduct that A is unfitted to receive support.

…"

Paragraphs 11 to 13 of Regulation 5 provide for termination of eligibility in the event that the relevant person ceases to qualify.

10. Regulation 7 provides for the period of eligibility to terminate in the event that a person withdraws from a course or it is abandoned or the person is expelled. It also provides power for the Secretary of State to terminate eligibility if false information has been provided in the application.
11. Part 2 of Schedule 1 sets out the categories of eligible persons. It identifies eleven categories^[1]. The pattern adopted in defining each category is substantially similar with a requirement for a particular immigration or nationality status coupled with an ordinary residency qualification. The residency requirement is generally that the person is ordinarily resident in England and has been ordinarily resident for a period of three years preceding the first day of the first academic year of the course in the United Kingdom and Islands. There are exceptions such as, for example, under paragraph 4 for refugees where the ordinary residency requirement runs from when the person was recognised as a refugee, which is defined in terms of the Convention.
12. I was told by Colin Thomann, who appears for the Secretary of State, that the purpose of the requirement for a period of ordinary residence is to ensure that there is an established connection with the United Kingdom and Islands before the person qualifies for support from public funds. That has been an enduring characteristic of the grant regulatory framework for at least the last 30 years.
13. The particular category with which this application is concerned is under paragraph 5, which provides, so far as relevant:

"Persons with leave to enter or remain and their family members

5(1) A person

(a) with leave to enter or remain;

(b) who is ordinarily resident in England from the first day of the first academic year of the course; and

(c) who has been ordinarily resident in the United Kingdom and Islands throughout the 3 year period preceding the first day of the first academic year of the course.

(2) A person

(a) who is the spouse or civil partner of a person with leave to enter or remain;

(b) who was the spouse or civil partner of a person with leave to enter or remain on the date on which that person made the application for asylum;

(c) who is ordinarily resident in England on the first day of the first academic year of the course; and

(d) who has been ordinarily resident in the United Kingdom and Islands throughout the 3 year period preceding the first year of the first academic year of the course ..."

Paragraph 5(3) makes similar provisions for the child of a person with leave to enter or remain or of their spouse or civil partner.

14. Relevant definitions are set out in Regulation 2(1) of and in Part 1 of the Schedule to the Regulations. So far as relevant

" 'Person with leave to enter or remain' means a person:

(a) who has been informed by a person acting under the authority of the Secretary of State ... that, although the person is considered not to qualify for recognition as a refugee, it is thought right to allow that person to enter or remain in the United Kingdom;

(b) who has been granted leave to enter or remain accordingly;

(c) whose period of leave to enter or remain has not expired and is being renewed and the period for which it was renewed has not expired and in respect of whose leave to enter or remain or an appeal is pending (within the meaning of section 104 of the Nationality, Immigration & Asylum Act 2002); and

(d) who has been ordinarily resident in the United Kingdom and Islands throughout the period since the person was granted leave to enter or remain."

"Refugee" is defined as a person recognised as a refugee within the meaning of the United Nations Convention relating to the Status of Refugees.

15. I should perhaps clarify, having regard to the particular facts of this case, that, as the Claimant did not apply for asylum, she might not therefore be seen as literally meeting the definition of a "person with leave to enter or remain", having regard to the reference to qualification for recognition as a refugee and the particular provisions of paragraph 5 including 5(2)(b). Mr Thomann informed me that there were concerns, however, as to the defensibility of the asylum application requirement. These were reflected in the consent order on 1 September 2010 in the previous litigation between the parties. Those concerns have since led to an amendment of the student support regime, formalised in the Education (Student Support) Regulations 2011, which introduce instead a category for those granted "humanitarian protection". Nothing arises in that respect in the present case and I make no further reference to it.
16. I have given an outline of the categories above. Categories 2 and 3 deal with persons who are settled in the United Kingdom, either having acquired the right of permanent residence or other than on that basis (categories 2 and 3). In each case the qualifications of ordinary residence in England and for the previous three year period in the United Kingdom and Islands are included, subject to an exception for temporary employment elsewhere under paragraph 1(4) of the Schedule.
17. "Settled" is defined under paragraph 1(1) of the Schedule as having the meaning given by section 33(2A) of the 1971 Act, which provides that:

"... references to a person being settled in the United Kingdom 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."

By section 33(2):

"It is hereby declared that, except as otherwise provided in this Act, a person is not to be treated for the purposes of any provision of this Act as ordinarily resident in the United Kingdom or in any of the islands at a time when he is there in breach of the Immigration laws."

18. I have referred to category 4, which deals with refugees above. Categories 6 to 12 deal variously with those who are employed, resident or nationals in other parts of the EEA and in Switzerland and Turkey together with, so far as relevant, other members of the family group. So far as relevant the requirements for ordinary residence also apply in respect of those categories.
19. As I have said, the issue in the present case is whether ordinary residence for the purpose of the 2009 Regulations requires residence which is lawful within the meaning of the 1971 Act. While it does not affect the resolution of that issue, I should record that in the Education (Student Fees, Awards and Support) (Amendment) Regulations 2012, paragraph 1 of Schedule 2 of the 2011 Regulations is amended to insert:

"(2A) For the purposes of this Schedule a person is not to be treated as ordinarily resident in a place unless that person lawfully resides in that place."

Legal authority

20. Ordinary residence has been regularly adopted as a qualification in a number of statutory contexts including the eligibility for grants and as such it is an expression that has been considered by the courts on a number of occasions.
21. In R v. Barnet LBC ex parte Nilish Shah [1983] 2 AC 309 the House of Lords was considering claims for grants by five students. In each case the student had entered his country with limited leave for the purpose of education. However, they had been refused grants under section 1 of the Education Act 1962 on the grounds that they were not ordinarily resident for that purpose.
22. Section 1 of the 1962 Act provided, so far as relevant:

"(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 ..."

Under the relevant regulations, the following exception was made:

"An authority shall not be under a duty to bestow awards 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 ..."

It will be seen accordingly that the structure of the statutory scheme in this respect is similar to the requirements under the 2009 Regulations with which I am concerned.

23. At page 340E Lord Scarman, who gave the leading opinion, set out his approach as follows:

"Two questions of statutory interpretation, therefore, arise. The first is: what is the natural and ordinary meaning of 'ordinary residence in the United Kingdom' ...? The second is: does the statute in the context of the relevant law against the background of which it was enacted, or in the circumstances of today, compel one to substitute a special, and, if so, what, meaning to the words 'ordinarily resident in the United Kingdom'?"

He answered the questions that the words were to be given their natural and ordinary meaning and that there was no reason to substitute a special meaning.

24. At page 343G he concluded, following his review of the relevant cases:

"... I unhesitatingly subscribe to the view that 'ordinarily resident' refers to a man's abode in a particular place or country which he has adopted voluntarily and for several purposes as part of the regular order of his life for the time being, whether of short or of long duration. There is, of course, one important exception. If a man's presence in a particular place or country is unlawful, e.g. in breach of the immigration laws, he cannot rely on his unlawful residence as constituting ordinary residence ... there is indeed express provision to this effect in the Act of 1971 section 33(2). But even without this guidance I would conclude that it is wrong in principle that a man could rely on his own unlawful act to secure an advantage which could have been obtained if he had acted lawfully."

Lord Scarman went on to deal with the characteristics of voluntary residence and settled purpose.

25. At page 349C Lord Scarman drew together his conclusions on the correct approach, including that:

"The terms of an immigrant student's leave to enter and remain here may or may not throw light on the question: it will, however, be of little weight when put into the balance against the fact of continued residency over the prescribed period – unless the residence is itself a breach of the terms of his leave, in which event his residence, being unlawful, could not be ordinary."

26. The other members of the court agreed with Lord Scarman. I note that, as observed in subsequent cases, the references by Lord Scarman to the effect of unlawful residence were obiter to the decision on the particular facts of that case in that each of the students had leave to enter for the purposes of education.
27. In Mark v. Mark [2006] 1 AC 98 the House of Lords was considering jurisdiction to bring divorce proceedings. The relevant statutory provision^[2] stated:

"(a) The court shall have jurisdiction to entertain proceedings for divorce or judicial separation if (but only if) either of the parties to the marriage ... was habitually resident in England and Wales throughout the period of one year ending with that date."

28. In that case the wife, who was Nigerian, was a long term overstayer in this country and the relevant issue was whether she could establish habitual residence for the purpose of jurisdiction based on what was unlawful residence.
29. Lady Hale, who gave the leading opinion, considered the decision in Shah at paragraph 27 and following. At paragraph 30 she noted that the Court of Appeal had concluded that the principle in Shah could not be an absolute rule in the light of the Human Rights Act 1998 and the right of access to a court guaranteed by Article 6 of the Convention. She continued at paragraphs 31 to 33:

"31. My Lords, I do not consider that there is any need to found our decision upon the Human Rights Act 1998. It is quite clear that Lord Scarman regarded the question he was answering as one of statutory construction. … The two cases cited by Lord Scarman in support of the proposition that residence must be lawful were both immigration cases ...

32. Indeed, it is scarcely surprising that, in giving immigration rights to people ordinarily resident here, Parliament should exclude those who were here in breach of immigration control. ... As Lord Scarman mentioned, the 1971 Act contains an express provision in section 33(2) that a person is not to be treated for the purpose of any provision in that Act as ordinarily resident in the United Kingdom at a time when he is there in breach of immigration laws. It is scarcely surprising, therefore, that the Court of Appeal considered the new provision in the British Nationality Act 1948 in the same way.

33. It is common ground that habitual residence and ordinary residence are interchangeable concepts ... the question is whether the word 'lawfully' should be implied into section 5(2) of the 1973 Act. I see no reason to do so. ..."

30. Lady Hale went on to consider the purpose of the provision to allow jurisdiction, concluding at paragraph 36:

"I conclude, therefore, that residence for the purpose of section 5(2) of the 1973 Act need not be lawful residence. The question of whether the residence is habitual is a factual one which should be answered by applying the test, derived from the 1928 tax cases, laid down by Lord Scarman in (Shah). It is possible that the legality of a person's residence here might be relevant to the factual question whether that residence is "habitual". A person who was on the run after a deportation order or removal directions might find it hard to establish a habitual residence here. Such cases will be rare, compared with the large numbers of people who have remained here leading perfectly ordinary lives here for long periods, despite having no permission to do so. The husband's first reaction, to admit that the wife was habitually resident here for the purpose of these proceedings, was obviously correct on the facts of this case. There will, however, be other statutory provisions, in particular those confirming entitlement to some benefit from the state, where it would be proper to imply a requirement that the residence be lawful."

31. In the subsequent Court of Appeal decision in R (oao YA) v Secretary of State for Health [2010] 1 All ER 87, the Court was concerned with the provision of medical treatment free of charge under the National Health Service Act 2006 to a failed asylum seeker, who had been unable to return to Palestine because of his lack of travel documents. He had subsequently developed serious liver disease.
32. Section 175 of the 2006 Act provided for regulations to make and recover charges "… in respect of such persons not ordinarily resident in Great Britain as may be prescribed". Under the relevant regulations^[3] "overseas visitor" was defined as a person not ordinarily resident in the United Kingdom.
33. Lord Justice Ward, who gave the lead judgment, identified the first issue at paragraph 35 as "Can a failed asylum seeker be ordinarily resident in the United Kingdom?". He went on to consider the decisions in Shah and Mark v Mark. At paragraph 53 as part of his analysis he concluded:

"…The crucial aspect of the ex p Shah test in our case is the 'important exception namely that if his presence in this country is unlawful for example in breach of immigration laws, he cannot rely on his unlawful residence as constituting ordinary residence.' Lord Scarman seems to me to give two reasons for this: firstly, the express provision to this effect in section 33(2) of the 1971 Act ...; and secondly, the principle of public policy that the propositus cannot profit from his unlawful act. As the students in ex p Shah were not in breach of immigration laws, these observations are obiter, but, nonetheless in my judgment, they command the highest respect. ...

55. Here the statute in need of construction is the 2006 NHS Act. As set out at paragraph 8 above, the Secretary of State's duty prescribed by section 1 is to continue the promotion in England of a comprehensive health service designed to secure improvement in the health 'of the people of England'. Note that it is the people of England, not the people in England, which suggests that the beneficiaries of this free health service are to be those with some link to England so as to be part and parcel of the fabric of the place. It connotes a legitimate connection with the country. The exclusion from this free service of non residents and the right conferred by section 175 to charge such persons as are not ordinarily resident reinforces this notion of segregation between them and us. This strongly suggests that, as a rule, the benefits were not intended by Parliament to be bestowed on those who ought not to be here."

He continued at paragraph 61:

"61. The words are to be given their ordinary meaning. Asylum seekers are clearly resident here but is the manner in which they have acquired and enjoy that residence ordinary or extraordinary? Normal or abnormal? Were they detained, then no one would suggest they were ordinarily resident in the place of their detention. While they are here under sufferance pending investigation of their claim they are not, in my judgment, ordinarily resident here. Residence by grace and favour is not ordinary. The words must take some flavour from the purpose of the statute under consideration and, as I set out above, the purpose of the new 2006 NHS Act is to provide a service to the people of England and that does not include those who ought not to be here. Failed asylum seekers ought not to be here. They should never have come here in the first place and after their claims have finally been dismissed they are only here until arrangements can be made to secure their return, even if, in some cases, like the unfortunate YA, that return may be a long way off.

62. Whereas exceptions affording free medical treatment are made under (the regulations) for those accepted as refugees and those whose claims for asylum have not yet been finally determined, no exception is made for failed asylum seekers. The public policy considerations which inform Lord Scarman's exception militate against their being allowed to claim the benefits of a free National Health Service. The result may be most unfortunate for those in ill health like YA for they may now be at the mercy of the hospital's discretion whether to treat them or not."

34. The last authority to which I need refer is the earlier decision in R v Wandsworth LBC ex parte O [2000] 4 All ER 590. The Court of Appeal was there considering an authority's duty under section 21(1)(a) of the National Assistance Act 1948 to make arrangements for providing residential accommodation for persons who are in need of care and attention which was not otherwise available to them.
35. Section 24 of the 1948 Act provided, so far as relevant:

"(1) The local authority (empowered) under this part of the Act to provide residential accommodation for any person shall subject to the following provisions of this part of this Act be the authority in whose area the person is ordinarily resident. …

(3) Where a person in the area of a local authority … not being ordinarily resident in the area of the local authority is in urgent need of residential accommodation under this part of this Act the authority shall have the like (power) to provide residential accommodation for him as if he were ordinarily resident in their area."

Thus, as pointed out by Lord Justice Simon Brown as he then was at page 603F, the requirement under section 24(3) was simply that the applicant was present in the local authority's area with an urgent need of residential accommodation.

36. At page 602J Lord Justice Simon Brown referred to the approach contended for on behalf of the local authority that a balancing exercise should be carried out as to the competing considerations of illegality and humanity. He continued at page 603A:

"Attractive though at first blush such an approach might appear, I regard it as both unworkable in practice and offensive to the principle of legal certainty, a principle of particular importance in the present context. We are dealing be it remembered with cases of urgent need and with assistance of last resort. It is one thing to say, as Bingham MR said in R v SSE ex parte Tower Hamlets LBC [1993] 3 All ER 439 at 447 ... "it is common ground that housing authorities owe no duty to house those, homeless or not, priority need or not, who require leave to enter and illegally enter without leave. I agree with this view. It would be an affront to common sense if those who steal into the country by unlawful subterfuge were then to be housed at public expense." That approach, ... is understandable in the context of mere homelessness. After all ... the duty to rehouse the homeless is not itself absolute – considerations such as particular vulnerability of the applicant and his "intentionality" are also in play. It seems to me quite another thing to apply the same inflexible approach to a welfare scheme of last resort. ... Overriding all these arguments is to my mind a consideration I have already stressed that section 21(1) to the 1948 Act affords the very last possibility of relief, the final hope of keeping the needy off the streets. Not even illegality should to my mind bar an applicant who otherwise qualifies for support. For my part I would hold that the local authority has no business with the applicant's immigration status save only for the purpose of learning why the care and attention "is not otherwise available to them" as section 21(1) of the 1948 requires ... In my judgment however it would be for the Home Office to decide and ideally decide speedily any claim for ELR and to ensure that those unlawfully here are promptly removed, rather than for local authorities to, so to speak, starve immigrants out of the country by withholding last resort assistance from those who today will by definition be not merely destitute but for other reasons too in urgent need of care and assistance."

37. Lord Justice Hale who agreed with Simon Brown LJ concluded at page 607H:

"I conclude therefore that there is no general principle of legality excluding certain people from access to social services, as opposed to specific statutory provisions which may do so. This is scarcely surprising. Local social services authorities are skilled at assessing need and arranging the appropriate services. That is their statutory duty under section 47 of the Community Care Act 1990. It is also the professional skill of social workers. They are not and never have been professionals in making moral judgments as between particular people with identical needs. They have no particular skills or facilities for assessing whether or not a person is subject to immigration control or has a real choice about whether or not to return to his home country. It is the Secretary of State, through the Immigration and Nationality Directorate, who knows the individual's immigration status, has routine access to the local country information which might make such judgments possible, and has the power to determine whether or not a person should be allowed to remain here and to remove him if he should not."

Lord Justice Kay agreed with both judgments.

Submissions

38. Ms Sarah Hannett, who appears for the Claimant, contends that on a straightforward reading of the 2009 Regulations there is no requirement which expressly imposes an obligation of legality. Further she submits that, just as in Mark, there is here no justification for importing that qualification. That is in contrast to the statutory provisions considered in Shah, where ordinary residence was the sole criterion for grant, which in the particular circumstances was considered to justify the implication of the requirement for legitimacy as part of ordinary residence. Importantly under the current regulatory regime there was the requirement to establish a specific immigration status which would only qualify if it met the legal requirements of that status, in the present case the grant of discretionary leave to remain. That therefore satisfied the public policy requirement for lawful presence.
39. The same would apply to categories 2 and 3 where the definition of "settled" expressly imported the restrictions under section 33(2)(a) and section 33(2) of the 1971 Act. Moreover the specific reference in the definition of "settled" for those categories by reference to the 1971 Act reinforced the conclusion that the requirement for legality in accordance with the immigration laws or otherwise was not an express requirement so far as ordinary residence is concerned.
40. Furthermore the regulations enabled denial or termination of eligibility and removal of the right to grant where there had been misrepresentation or other misconduct under regulations 5 and 7. Moreover, as noted by Lady Hale in Mark, the lawfulness of any individual's immigration status might well be relevant to the question whether that person was ordinarily resident, for example in the case of an overstayer seeking to evade detection by the authorities.
41. That there was no principled basis for disqualifying a person who factually had been ordinarily resident for the required period notwithstanding a breach of the immigration regulations was well illustrated on the facts of the present case. The Claimant, Ms Hannett submits, was entitled on human rights grounds to have remained in this country throughout the period of the three years having regard to the conclusions of the AIT upholding her human rights claim following the domestic accident.
42. That consideration is reinforced in this case in that, as applied by the Secretary of State, category 5 expressly addressed discretionary leave to remain on human rights grounds. In the normal course of events those grounds would have arisen in advance of any decision to grant leave to remain. Moreover in the present case there was no turpitude on the part of the Claimant in that she had sought to regularise her position while she was still in hospital, albeit that through the problems of communication and otherwise no application was in fact made until 2007 and any delay thereafter was caused by the process of decision making including the erroneous decision of the Secretary of State in rejecting her application.
43. Ms Hannett further submits that the necessary implication of the requirement for the legality of ordinary residence results in inconsistency in the application of that expression within the regulations. For example in categories 2 and 3 the definition of "settled" necessitates that a settled person was lawfully resident so there was no requirement for that additional qualification on ordinary residence for those categories. The same applies in category 4 in respect of refugees where following their recognition as a refugee they would in any event be lawfully resident and hence there would be no justification for the implication of a further requirement for lawfulness. The definition of a person with leave to enter or remain itself requires continuing lawfulness under the immigration rules as well as ordinary residence in the United Kingdom and Islands in the period following the grant of leave.
44. In these circumstances the dicta in Shah are properly regarded as obiter and can be distinguished from the construction of the 2009 Regulations. Moreover the effect of the approach by the Secretary of State would be to postpone without justification the award of grant in that the Claimant would in any event now be able to make the application for grant, three years having passed since the grant of her discretionary leave.
45. Although in a technical sense upholding the original award of grant would result in benefit being obtained in part relying on ordinary residence which was unlawful as being in breach of the immigration rules, the decision in Ex parte O demonstrates that this need not be a bar in terms of public policy.
46. Mr Thomann submits on behalf of the Secretary of State that the approach to construction of the 2009 Regulations should be contextual. That includes that the administration of the student support system requires the rapid processing of applications for the relevant student cohort within a time specific period. It is a huge administrative challenge. It is certainly not a process that would be amenable to case specific judgments as to the balance between unlawfulness and other humanitarian or related considerations, which would in any event be inconsistent with the principle of certainty. Under the regulations the relevant categories are intended to be defined with reference to specific criteria that can be objectively identified.
47. The scheme is one that provides a publicly funded benefit and as a matter of principle benefits of that kind are not to be provided to those who rely on their own unlawful action. This is not a case where the Claimant is being deprived of last resort community care of the kind considered in Ex parte O.
48. To establish eligibility for grant Parliament intended not only that there was the specific immigration or nationality or related status but additionally that a person had established ordinary residence over the required period within the United Kingdom and Islands. Absent any contrary indication in the statutory provisions, it is a proper conclusion that Parliament intended that to have been established lawfully. The fact remains that in the present case the Claimant was acting unlawfully and to that extent evading detection in not applying for discretionary leave to remain from the time that her original visitors permit expired in 2004 until at least her application in 2007.
49. As a matter of policy legitimate connection with this country for a period of three years has been an enduring precondition for qualification for what is now in excess of thirty years. That is driven by an important public consideration as to entitlement to benefit only being afforded to those who have lawfully demonstrated their connection with this country. In Shah the approach to that qualification by lawful ordinary residence in this context was authoritatively determined, providing the context for subsequent statutory provision. Although there is now additionally a specific immigration status that is separately required as part of the category qualification, the requirements for ordinary residence both at the time and over the three year period are effectively indistinguishable from that considered in Shah. While strictly obiter, it is entitled to be given in the words of Lord Justice Ward "the utmost respect".
50. Moreover the decision in YA is strongly supportive of that conclusion, having regard to the considerations to which Lord Justice Ward referred at paragraph 61 in respect of the entitlement to benefit and whether unlawful residence was ordinary or extraordinary.
51. There is nothing in that approach that leads to inconsistency in the construction or application of the 2009 Regulations. The fact that a particular immigration status means that the relevant residence would in any event be lawful is in no way inconsistent with the fact that ordinary residence is required to be lawful residence in other categories where the immigration status would not necessarily have that effect.
52. The limited provisions for terminating or denying eligibility in the 2009 Regulations are no substitute for the overriding requirement that a person demonstrates lawful connection with this country though lawful residence.
53. The introduction of the Human Rights Act 1998 makes no difference to the application of these provisions or the importance of public policy in requiring lawful connection before a claim could be made. In any particular case it was for an applicant to demonstrate lawful residence for the relevant three year period to establish the right to grant. That the Claimant is now in that position (if that is correct) is in line with the public policy behind the provisions in the regulations requiring ordinary residence for the necessary period to demonstrate lawful connection with this country. There is no hardship in that provision in that it was open to this Claimant as any other applicant to make an application for discretionary leave on human rights or other grounds outside the immigration rules from the outset and not as here to have delayed for a period of years before the application was made.
54. The decision in Mark v Mark is distinguishable in that it concerned the qualification of ordinary residence as a basis for jurisdiction and not conferring any right to a benefit from public funds. Lady Hale in her opinion at page 113B referred to other situations and in particular those conferring entitlement to benefit from the State when it would be proper to imply a requirement that residence be lawful.
55. Ex parte O is distinguishable in respect of the particular statutory provision that required presence within the authority's area and is not therefore directly comparable to the requirement for ordinary residence as in the present case. In any event as a matter of general principle there is a distinction between what was "assistance of last resort" and an application for student grant, as in the present case, or indeed, as noted by Lord Justice Simon Brown at page 603C, a duty to rehouse. The decision in YA is demonstrably closer to the context of the present case and supportive of the requirement for lawful residence.

Consideration

56. It is of course right that on the wording of the relevant regulation there is no express requirement that ordinary residence must be lawful. Thus the answer to the question whether that residence for this purpose must be lawful is to be found in the construction of the 2009 Regulations, having regard to their object and context as well as broader considerations of public policy.
57. In addressing this question in my judgement the opinion of Lord Scarman in Shah provides a persuasive starting point for the consideration of the equivalent expressions in the 2009 Regulations. I am not persuaded by the distinctions drawn by Ms Hannett in her helpful submissions between the particular requirements for ordinary residence in the legislative provisions considered in Shah and those in the present case. It seems to me that the fundamental requirement for ordinary residence over the three year period is in substance the same to demonstrate an established connection with this country as a precondition to eligibility for student grant from public funds. In my judgement the basis for the conclusion of Lord Scarman having regard to the 1971 Act and public policy that a person should not be able to rely on his own unlawful act to secure an advantage is not undermined through the passage of time or the distinctions in the particular statutory provisions.
58. The inclusion of a particular immigration or nationality status as a criterion for the identified categories does not in my view diminish the importance of the continuing requirement for demonstration of an established connection through residence. The enactment of the Human Rights Act 1998, recognising our pre-existing treaty obligations, does not detract from that requirement, as recognised by Lady Hale in Mark^[4]. The limited regulatory provisions for disqualification or termination of benefit under the regulations does not in my judgement provide grounds for qualifying the enduring requirement for the demonstration of established connection with this country through ordinary residence over the relevant period.
59. I turn accordingly to see if there is anything in the particular provisions either in respect of the 1971 Act or otherwise that would support a different conclusion from that expressed by Lord Scarman.
60. In the first place I am entirely unpersuaded that there is any internal inconsistency that arises from a construction that is based on the conclusion that Parliament must have intended the demonstration of lawful residence to meet the requirement for ordinary residence pursuant to the 2009 Regulations. It seems to me with respect unarguable that the fact that, for example, those who satisfy the "settled" person qualification in categories 2 and 3 would be lawfully resident is in some way inconsistent with the implication of a requirement for lawful residence to constitute ordinary residence more generally. In particular in categories 2 and 3 the requirement for three years' ordinary residence is in addition to the settled person criterion. Thus it could well cover a period before the grant of leave under the 1971 Act where that was required. The same of course applies with refugees under category 4 and indeed those with discretionary leave under category 5. There is in my view nothing in this respect which militates against the conclusion drawn by Lord Scarman.
61. Contrary to the submissions by Ms Hannett, in my judgement the reference to the 1971 Act as part of the identified categories reinforces the case for adopting an approach that would be consistent with that Act in considering the requirement for ordinary residence. For those settled in this country, which can be expected to be the large majority of applications, categories 2 and 3 define the status by reference to the requirements of the 1971 Act under section 33(2A) including ordinary residence as well as the declaration under section 33(2) that a person is not to be treated as ordinarily resident in the United Kingdom or the Islands at a time when he is there in breach of the immigration laws. That is then also subject to the requirement that ordinary residence should have been established for the period of three years preceding the first day of the first academic year of the course. In my judgment it would be surprising if within the same category ordinary residence would have a different connotation, enabling in one respect reliance on conduct that was unlawful being in breach of the immigration rules but not for other aspects of the eligibility criteria.
62. Moreover it would also be surprising as a matter of public policy and otherwise if a person who had been physically resident during the relevant period but only by unlawfully evading detection by the authorities and without leave to remain was able to rely on that unlawful conduct to support his eligibility for grant in this respect. That would seem to me to be repugnant to considerations of public policy as well as incompatible with the concept of ordinary residence. That in my view is supported by the fact that for over twenty five years and in particular at the time of the making of these regulations Shah provided authoritative guidance as to the application of the expression "ordinary residence" in this legislative context.
63. The above considerations are in my judgement reinforced by the practical implications for the administration of a grants system within the necessary timescales by a body which would be ill-equipped to assess the weight to be attached to particular forms of illegality as against humanitarian or other considerations. The character of the identified categories of eligibility seem to me calculated to provide criteria which are or should be amenable to objective determination including as to the particular immigration or nationality status and the requirement for ordinary residence. That would in my judgement tend to support an approach that only took into account lawful residence as a basis for ordinary residence for the relevant period. Certainly in my judgment there is no practical consequence of a requirement for lawful residence that would militate against its imposition in accordance with the approach in Shah.
64. The contention that the Claimant may have been entitled to human rights protection during part or all of the relevant period is no answer to these public policy and related considerations. The fact is that the Claimant remained in this country illegally as an overstayer only applying for leave to remain in 2007, leading to its grant in 2009. That she should now be in the position to make a new application for grant, having completed three years' lawful ordinary residence, does not conflict with the principle or the objective of the 2009 Regulations in this respect. On the contrary it delivers the fundamental policy aim that an applicant for grant should demonstrate the required period of lawful connection with this country as a condition of eligibility. That consequence of the Regulations seems to me principled and in accordance with their purpose.
65. The policy considerations that led to the decision in Mark are readily distinguishable, having regard to the difference between establishing jurisdiction for the purposes of dissolution of a marriage and that of seeking to establish entitlement to grant from public funds, as Lady Hale recognised in her opinion in that case^[5].
66. In Ex parte O Lord Justice Simon Brown as he then was expressly distinguished the more general cases of a right to housing from the situation in that case dealing with "assistance of last resort"^[6]. In any event section 24(3) of the 1948 Act in only requiring presence in the authority's area is not in that respect directly comparable to the legislative provisions governing student grants.

Conclusion

67. In conclusion I find nothing in the subsequent authorities or in the relevant regulations or subsequent legislative changes which would undermine or displace the approach clearly and authoritatively set out by Lord Scarman in his opinion in Shah. On the contrary in my judgment the overall structure and underlying policy and purpose of the 2009 Regulations reinforce that approach as being appropriate to the application of the Regulations.
68. For all the above reasons in my judgment ordinary residence for the purposes of paragraph 5(1)(c) of schedule 1 part 2 to the 2009 Regulations requires lawful residence and would not include residence in breach of the immigration rules. For these reasons in this respect the claim fails. I will hear submissions from the parties as to the appropriate form of relief.

Note 1   For convenience I will refer to the individual categories by their paragraph number in the schedule.    [Back]

Note 2   Domicile and Matrimonial Proceedings Act 1973 s 5(2)    [Back]

Note 3   National Health Service (Charges to Overseas Visitors) Regulations 1989 reg 1(2)    [Back]

Note 4   [2006] 1 AC 98 at para 31    [Back]

Note 5   [2006] 1 AC 98 para 36    [Back]

Note 6   [2000] 4 All ER 590 at p 603A    [Back]