United Kingdom House of Lords Decisions

 

HOUSE OF LORDS
On appeal from:
REGINA V. BARNET LONDON BOROUGH COUNCIL, E Ex parte NILISH SHAH

Date: 16 December 1982

AKBARALI (A.P.) (APPELLANT)

v.

BRENT LONDON BOROUGH COUNCIL (RESPONDENTS)

ABDULLAH (A.P.) (APPELLANT)

v.

SHROPSHIRE COUNTY COUNCIL (RESPONDENTS)

SHABPAR (APPELLANT)

v,

LONDON BOROUGH OF BARNET (RESPONDENTS)

SHAH (A.P.) (APPELLANT)

v.

LONDON BOROUGH OF BARNET (RESPONDENTS)

LONDON BOROUGH OF BARNET (APPELLANTS)

v.

NILISH SHAH (A.P.) (RESPONDENT)

[Conjoined Appeals]

Michael Beloff QC and Judith Beale instructed by Bindman & Partners for the appellants Akbralali and Abdullah.

Anthony Lester QC and Judith Beale instructed by Jacques & Co for the appellant Jitendra Shah and the respondent Nilish Shah.

Anthony Lester QC and KS Nattan instructed by Nicholls Christie & Crocker (Uxbridge) for Shepbar.

Anthony Scrivener QC and Robin Barratt instructed by the Chief Executive, Barnet London Borough Council and the Solicitor for Brent London Borough Council for the London Boroughs of Barnet and Brent.

Elizabeth Appleby QC, Duncan Ouseley and Stephen Aithchison instructed by the Solicitor for Shropshire County Council for Shropshire County Council.

Lord Fraser of Tullybelton

My Lords,

I have had the advantage of reading in draft the speech of my noble and learned friend, Lord Scarman. I agree with it and, for the reasons given by him, I would allow the appeals in all cases except London Borough of Barnet against Nilish Shah.

Lord Scarman

My Lords,

The detailed facts in these five appeals are succinctly stated in the judgments of the Court of Appeal, and need not be repeated. In four of the appeals an immigrant student is the appellant and a Local Education Authority (L.E.A.) the respondent. In one, Nilish Shah's case, the roles are reversed. In each case the student had entered the United Kingdom some three years ago, or earlier, for the purpose of seeking an educational qualification by pursuing a course of study at some school or college, paying his own fees and relying upon family resources for his maintenance. After obtaining his educational qualification, he applied to a L.E.A. for an award in respect of a first-degree, or comparable, course of further education. In each case the application was refused. Each student has applied for judicial review on the ground that the L.E.A. had erred in law in reaching the conclusion that the student had failed to prove that he had been ordinarily resident in the United Kingdom throughout the three years preceding the first year of the course in question. It is common ground that to secure a mandatory award, i.e. one which it was the duty of the L.E.A. to bestow, the ordinary residence condition had to be met by these students. The students say that the L.E.A.s misdirected themselves in law in that they applied the wrong test in respect of ordinary residence. One student, Shabpar, has a further point. He alone has pursued to this House the case that the L.E.A., having refused him a mandatory award, failed or refused to consider his alternative application for a discretionary award.

All five students are immigrants. None of them has the right of abode in the United Kingdom. None of them is a national of a member state of the European Communities. All needed leave to enter and to remain here: s. 3(1) Immigration Act 1971. Four of them entered as students with limited leave; one, Nilish Shah, entered with his parents for settlement and obtained indefinite leave. The limited leave included a condition that on completion of his studies the student would depart from the country—though, of course it would be open to him to apply for an extension, in which event the Secretary of State could grant a limited or unlimited extension or refuse the application.

Two questions of law are common to all five appeals. The first, and more difficult, question is as to the meaning to be given in the context of the Education Acts to the words "ordinarily resident in the United Kingdom". The second question arises only if the first is answered in favour of the students and relates to the judicial remedy appropriate to these cases.

The cases of Nilish Shah and Jitendra Shah came before a Divisional Court. Ormrod LJ. delivered the considered judgment of the court, allowing Nilish's application for judicial review but dismissing Jitendra's. The distinguishing fact was that Nilish entered for settlement, whereas Jitendra was admitted for the purpose of study and given limited leave only. In the other cases, all of them cases of limited leave, a Divisional Court refused judicial review. The Court of Appeal, after one hearing covering all five cases (and one other), upheld the Divisional Court's decision in favour of Nilish but dismissed the appeals of the other four applicants. The Court of Appeal granted leave to appeal to your Lordships' House.

The Education Act 194's. 81 required the Secretary of State to make regulations empowering L.E.A.s

" for the purpose of enabling pupils to take advantage without hardship to themselves or their parents of any  educational facilities available to them.... to grant scholarships.... and other allowances in respect of pupils over compulsory school age,  including pupils undergoing training as teachers."

The section set no limit, imposed no restrictions by way of nationality, origin, or sex. It was an integral part of an enlightened statute, the policy of which has governed educational provision ever since.

By 1962 immigration from the Commonwealth and elsewhere had become a factor in the life of British society: witness the Commonwealth Immigrants Act 1962.

In the same year and during the same session Parliament enacted the Education Act 1962.

It is inconceivable, and I refuse, therefore, to infer, that Parliament, in enacting the education statute, could have been unaware of the restrictions then being imposed for the first time on Commonwealth immigrants. The Act was amongst other matters, "to make further provision with respect to awards and grants by local education authorities."

Section 1 was as follows:

"1. — (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.

(2) This section shall apply to such full-time courses at universities,  colleges or other institutions in Great Britain and Northern Ireland  as may for the time being be designated by or under the regulations for the purposes of this section as being first degree courses or_:  comparable to first degree courses; and for the purposes of the  preceding subsection the requisite educational qualifications, in relation to any course, shall be such as may be prescribed by or under the regulations, either generally or with respect to that course  or a class of courses which includes that course. '

(3) Regulations made for the purposes of subsection (1) of this  section shall prescribe the conditions and exceptions subject to  which the duty imposed by that subsection is to have effect, and the  descriptions of payments to be made in pursuance of awards bestowed  thereunder, and, with respect to each description of payments, shall—

 (a) prescribe the circumstances in which it is to be payable, and  the amount of the payment or the scales or other provisions  by reference to which that amount is to be determined, and

 (b) indicate whether the payment is to be obligatory or is to be  at the discretion of the authority bestowing the award; and, subject to the exercise of any power conferred by the regula-  tions to suspend or terminate awards, a local education authority  by whom an award has been bestowed under subsection (1) of this  section shall be under a duty, or shall have power, as the case may  be, to make such payments as they are required or authorised to  make in accordance with the regulations.

 (4) 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.

 (5) The provisions of subsection (3) of this section and of the  regulations made in accordance with that subsection (except so much  of those provisions as relates to the conditions and exceptions subject  to which the duty imposed by subsection (1) of this section is to have  effect) shall apply in relation to awards under the last preceding  subsection as they apply in relation to awards under subsection (1)  of this section.

 (6) Notwithstanding anything in subsection (1) of this section, that  subsection shall not have effect so as to require a local education  authority—

 (a) to bestow awards in respect of any period beginning before  the first day of September, nineteen hundred and sixty-two, or

 (b) to bestow an award on a person in respect of any course, if a  scholarship, exhibition, bursary or other allowance granted to  him in respect of that course is in force on that day by  virtue of regulations made under paragraph (c) of section  eighty-one of the Act of 1944.

 (7) The reference in subsection (1) of this section to persons who  are ordinarily resident in the area of a local education authority is  a reference to persons who, in accordance with the provisions of the  First Schedule to this Act, are to be treated as being so resident."

The section imposed a duty upon every local education authority to bestow awards ("mandatory", as they are called) upon persons ordinarily resident in its area who possessed the requisite educational qualifications. It contained no restriction upon the scope of the duty other than ordinary residence in the area of the L.E.A. and the educational qualification. There was no hint of nationality, country of origin, or domicile as a condition of eligibility: but the duty was to be subject to and in accordance with regulations made under the Act.

Such regulations were, amongst other matters, to prescribe the conditions and exceptions subject to which the duty was to have effect. Regulations have, been made from time to time; and they have always included an exception based on a requirement of three years' ordinary residence in the United Kingdom as a condition of eligibility for a mandatory award. The terms of the exception may be conveniently quoted from the 1979 Regula­tions (1979 No. 889). Regulation 13 provides as follows:

" Other Exceptions

"13. 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;

 (b) upon a person who has, in the opinion of the authority, shown  himself by his conduct to be unfitted,to .receive an award;

 (c) in the case of a course comparable to a first degree course,  upon a person who does not possess a qualification specified   by or under Schedule 5. "

The condition of three years' ordinary residence in the United Kingdom had featured in the earlier regulations (e.g. 1962 No. 1689, Reg. 5: 1977 No. 1307, Reg. 10: 1978 No. 1097, Reg. 13). The extension to the European Economic Community was new in 1979.

Throughout the period 1962 to 1979 Parliament found it necessary to review the problem of immigration, passing the Commonwealth Immigrants Act 1968 and finally introducing a statutory code of immigration control, the Immigration Act 1971. Yet the Education legislation, and the Regulations made. thereunder during this period, retained the three year ordinary residence requirement without any hint of other restriction such as the applicants' place of origin or domicile or (save in one unimportant respect) nationality.

All the cases now under appeal, other than Shabpar's, fall to be considered under the 1962 Act and the 1979 regulations, Shabpar's case falls under the Education Act 1980 and its regulations, 1980 No. 974. S. 19 of that Act substitutes for s. 1 to 'and Schedule 'of the 1962 Act the provisions set out in its Schedule 5. The Schedule and Regulation 13 of the 1980 regulations retain the three year ordinary residence requirement with the substitution of the "British Islands" for the "United Kingdom."

To conclude this sketch of the relevant legislation I would draw attention to the availability of a discretionary award, if a student should fail to establish his entitlement to a mandatory award: s. 1(4) of the 1962 Act re-enacted in paragraph 1(b) of Schedule 5 to the 1980 Act. Shabpar alleges that in his case the L.E.A., having refused him a mandatory award, failed to consider whether he should have an award under this subsection.

A confusing feature of the legislation is that in the same sections and regulations it has endeavoured to deal with two entirely separate problems, namely:

(1) an applicant's eligibility for a mandatory award i.e. three years' ordinary residence in the United Kingdom (British Islands): and

(2) the distribution of cost of such awards between local education authorities where doubt exists as to the local: education area to which it may be said the applicant " belongs ", i.e. in which as between local education authorities he is to be treated as being ordinarily resident: see Education Act (Miscellaneous Provisions) 1953, s. 7.

The first question, being one of statutory interpretation, is legal in. character; and it is related to an applicant's right. The second is administrative and fiscal, and—significantly—is ultimately for decision by the Secretary of State: s. 7 (5) Education (Miscellaneous Provisions) Act 1953 repealed and replaced by the Education Act 1980 s. 31 (3). Both the students and the L.E.A.s have, at certain stages of their elaborate submissions to your Lordships' House, endeavoured to pray in aid the provisions for "recoupment", which is the statutory description of the fiscal problem, as indicating the meaning to be given to "ordinary residence" in the United Kingdom (British Islands) " in the context of an applicant's right to an award. But the problems are wholly distinct: one is justiciable, the other is not. If, as to which I offer no firm opinion, ordinary residence in an area of the L.E.A. has a special meaning when the distribution of the fiscal burden between L.E.A.s is being considered as a matter for the exercise of executive decision by the Secretary of State, it does not follow that such special meaning, whatever it be, is to be attributed to the term " ordinary residence in the United Kingdom (British Islands) " when used as a criterion of an applicant's eligibility for an award.

Two questions of statutory interpretation, therefore, arise. The first is: — what is the natural and ordinary meaning of " ordinary residence in the "United Kingdom" (it is unnecessary to refer any further to the 1980 variant "British Islands")? 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 to-day, including in particular the impact of the Immigration Act 1971, compel one to substitute a special, and, if so, what, meaning to the words "ordinarily resident in the United Kingdom"?

For the reasons which I shall endeavour to develop I answer the two questions as follows. The natural and ordinary meaning of the words has been authoritatively determined in this House in two tax cases reported in 1928. To the second question my answer is "No". The Act of 1962 and the Regulations are to be construed by giving to the words "ordinarily" resident in the United Kingdom " their natural and ordinary meaning.

Ordinary residence is not a term of art in English law. But it embodies an idea of which Parliament has made increasing use in the statute law of the United Kingdom since the beginning of the 19th century. The words have been a feature of the Income Tax Acts since 1806. They were used in the English family law when it was decided to give a wife the right to petition for divorce notwithstanding the foreign domicile of her husband: Matrimonial Causes Act 1950, s. 18(1)(6). Ordinary or habitual residence has, in effect, now supplanted domicile as the test of jurisdiction in family law: and, as Eveleigh L.J. in the Court of Appeal reminded us (p. 483), the concept is used in a number of 20th century statutes, including (very significantly) the Immigration Act 1971.

Though the meaning of ordinary words is, as Lord Reid observed in Cozens v. Brutus [1973] A.C. 85'a question of fact, the meaning to be attributed to enacted words is a question of law, being a matter of statutory interpretation. So in this case a question of law arises as to the meaning of " ordinarily resident in the United Kingdom ", even though it arises only at a preliminary stage in the process of determining a question of fact, namely whether the "propositus" (in these appeals, the student applicant), has established the fact of ordinary residence for the prescribed period (i.e. three years immediately preceding the course in respect of which he seeks an award). It is with this preliminary stage that the courts are concerned. If an L.E.A. gets the law right, or, as lawyers would put it, directs itself correctly in law, the question of fact—i.e. has the student established the prescribed residence?—is for the authority, not the court, to decide. The merits of the application are for the L.E.A., subject only to judicial review to ensure that the authority has proceeded according to the law.

The words "ordinary residence" were considered by this House in two tax cases reported in 1928. In each, the House saw itself as seeking the natural and ordinary meaning of the words. In Levene v. C.I.R. [1928] AC 217 Viscount Cave L.C., p. 225, said:—

" I think that [ordinary residence] connotes residence in a place with " some degree of continuity and apart from accidental or temporary "absences".

In C.I.R. v. Lysaght [1928] A.C. 23'Lord Sumner, p. 243, said: —

"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' ".

In Levene's case at p. 232 Lord Warrington of Clyffe said: —

"I do not attempt to give any definition of the word 'resident'. In  my opinion it has no technical or special meaning for the purposes  of the Income Tax Act. 'Ordinarily resident' also seems to me to have no such technical or special meaning. In particular it is in my opinion impossible to restrict its connotation to its duration. A member of this House may well be said to be ordinarily resident in London during the Parliamentary session and in the country during the recess. If it has any definite meaning I should say it means according to the way in which a man's life is usually ordered."

It was urged upon your Lordships by counsel for Brent and Barnet Borough Councils (but not, as I understood her ultimate position, by counsel for the Shropshire County Council) that these two decisions of the House were authority only for a special meaning limited to the Income Tax Acts. The converse is the case. The true reading of the speeches delivered is that the House decided to construe the words in their tax context as bearing their natural and ordinary meaning as words of common usage in the English language: note particularly the words of Lord Warrington of Clyffe, supra. In the present cases Lord Denning M.R. adopted the same view of the natural and ordinary meaning of the words: for in his judgment he said, pp. 481-2: — .

"Traditionally, we ought simply to apply the natural and ordinary meaning of the two words ordinarily resident in the context of [the Education Act 1962] ... 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 [the] students would qualify for a mandatory award."

Strictly, my Lords, it is unnecessary to go further into such case law as there is in search of the natural and ordinary meaning of the words. In 1928 this House declared it in general terms which were not limited to the Income Tax Acts. Lord Denning has re-affirmed it in 1981, thus showing, if it were needed, that there has been no significant change in the common meaning of the words between 1928 and now. If further evidence of this fact is needed (for the meaning of ordinary words as a matter of common usage is a question of fact), the dictionaries provide it: see, for instance, O.E.D. 3rd edition s. v. "ordinarily" and "resident". I, therefore, accept the two tax cases as authoritative guidance, displaceable only by evidence (which does not exist) of a subsequent change in English usage. I agree with the Master of the Rolls that in their natural and ordinary meaning the words mean "that the person must be habitually and normally resident here," apart from temporary or occasional absences of long or short duration ". The significance of the adverb "habitually" is that it recalls two necessary features mentioned by Lord Sumner in Lysaght's case, namely residence adopted voluntarily and for settled purposes.

According, I do not lengthen a lengthy speech by a review of the decided cases, most of which were examined by Templeman L.J. in the Court of Appeal. The decision in each depended upon its own particular facts; and such dicta as can be culled from the reported judgments must be read with that in mind. I note that in the 19th century bankruptcy case In re Norris, (1888) TLR 452 it was accepted that one person could be ordinarily resident in two countries at the same time. This is, I have no doubt, a significant feature of the words' ordinary meaning for it is an important factor distinguishing ordinary residence from domicile. The cases of Miesegaies v. I.R.C. (1957) 37 T.C. 493, In re P. (an infant), [1965] Ch. 568, and the Australian case of Clarke v. Insurance Office of Australia [1965] 1 Lloyd's Rep. 308 appear to me to have been correctly decided on their facts. They contain nothing to throw doubt on the views expressed by the House in the two tax cases or the view of the Master of the Rolls: and if they did, I would reject any proposition inconsistent with those views. Like Templeman L.J. in the Court of Appeal, I derive no help from Cicutti v. Suffolk County Council [1981] 1 W.L.R. 558 where the Vice-Chancellor would seem to have equated ordinary residence with a domicile of choice—a dangerous confusion (which I think the Divisional Court and the Court of Appeal did not succeed in wholly avoiding in these two cases). Parliament has evinced a strong legislative preference for ordinary residence as a jurisdictional substitute for domicile: and the choice must be respected by the courts.

Two cases call for a slightly more extended consideration. Gout v. Cimitian [1922] 1 AC 105 preceded the two tax cases in your Lordships' House. It was a Privy Council case in which an Ottoman subject had lived in Cairo from 1893 to 1913. In December 1913 he went to Cyprus, where he rented a house. He was in Cyprus on the 5th November 1914, and remained until October 1915 when he returned to Cairo. The question was whether he was ordinarily resident in Cyprus on the 5th November 1914. The Judicial Committee held that he was, whether or not Cyprus was then his domicile. Lord Carson, who delivered the opinion of the Board, said, p. 110, that in the context of the relevant order in Council the words " ordinarily resident " could not be interpreted as comparable with domicile but must be given their usual and ordinary meaning.

The other case is Stransky v. Stransky [1954] P. 428 upon which counsel for the L.E.A.s placed reliance in submitting that in determining ordinary residence the test is the "real home" of the "propositus". A wife, whose husband was domiciled abroad, was invoking s. 18(l)(b) of the Matrimonial Causes Act 1950 so that she could petition for divorce. The test of jurisdiction was ordinary residence in England for three years preceding her petition. She had a flat in London where she resided, though during the three years she had spent substantial periods of time (in all more than 15 months) in Munich, where her husband was. The case was undefended: counsel for the Queen's Proctor submitted that her "real home" was London, notwithstanding her absences: and the judge adopted this description of her place of abode in his judgment. I do not read the judgment of Karminski J. as importing into ordinary residence an intention to live in a place permanently or indefinitely: his problem was to determine whether her absences from London destroyed the degree of continuity needed to establish ordinary residence. But if he did hold that such an intention was necessary, he would, in my view, have erred in law. For to have done so would have been to import into the law that which, in its time, s. 18(l)(b) of the 1950 Act sought to exorcise (so far as wives were concerned), namely, "animus manendi", the subjective test of domicile. In any event, any such error would be "obiter dictum", since upon the facts it was clear that the wife was ordinarily resident in England in the natural and ordinary meaning of the words as explained in the Levene and Lysaght cases.

Unless, therefore, it can be shown that the statutory framework or the lesal context in which the words are used requires a different meaning, I unhesitatingly subscribe to the view that "ordinarily resident" refers to a man's abode in a particular place or country which he has adopted voluntarily and for settled purposes as part of the regular order of his life for the time being, whether of short or 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 (even though in a tax case the Crown may be able to do so): In re Abdul Manan [1971] 1 W.L.R. 859, and Reg. v. Secretary of State for the Home Department, Ex parte Margueritte (C.A.), [1982] 3 All E.R. 909. There is, indeed, express provision to this effect in the Immigration Act 1971 s. 33 (2). But even without this guidance I would conclude that it was wrong in principle that a man could rely on his own unlawful act to secure an advantage which could have been obtained if he had acted lawfully.

There are two, and no more than two, respects in which the mind of the "propositus" is important in determining ordinary residence. The residence must be voluntarily adopted. Enforced presence by reason of kidnapping or imprisonment, or a Robinson Crusoe existence on a desert island with no opportunity of escape, may be so overwhelming a factor as to negative the will to be where one is.

And there must be a degree of settled purpose. The purpose may be one; or there may be several. It may be specific or general. All the law requires is that there is a settled purpose. This is not to say that the "propositus" intends to stay where he is indefinitely; indeed his purpose, while settled, may be for a limited period. Education, business or profession, employment, health, family, or merely love of the place spring to mind as common reasons for a choice of regular abode. And there may well be many others. All that is necessary is that the purpose of living where one does has a sufficient degree of continuity to be properly described as settled.

The legal advantage of adopting the natural and ordinary meaning, as accepted by the House of Lords in 1928 and recognised by Lord Denning in this case, is that it results in the proof of ordinary residence, which is ultimately a question of fact, depending more upon the evidence of matters susceptible of objective proof than upon evidence as to state of mind. Templeman L.J. emphasised in the Court of Appeal the need for a simple test for L.E.A.s to apply: and I agree with him. The ordinary and natural meaning of the words supplies one. For if there be proved a regular, habitual mode of life in a particular place, the continuity of which has persisted despite temporary, absences, ordinary residence is established provided only it is adopted voluntarily and for a settled purpose.

An attempt has been made in this case to suggest that education cannot be a settled purpose. I have no doubt it can be. A man's settled purpose will be different at different ages. Education in adolescence or early adulthood can be as settled a purpose as a profession or business in later years. There will seldom be any difficulty in determining whether residence is voluntary or for a settled purpose: nor will inquiry into such questions call for any deep examination of the mind of the "propositus".

The view which I have expressed was, however, rejected by the Divisional Court and by the Court of Appeal; and it is strenuously challenged by the L.E.A.s in argument in your Lordships' House. It is, therefore, necessary to state briefly the reasons which have led me to reject the views of the courts below and the submissions of the L.E.A.s.

The Brent and Barnet Borough Councils submit that the words "ordinarily resident in the United Kingdom", in the context of a student's eligibility for a mandatory award, denote the place where he has his home permanently or indefinitely, i.e. his permanent base or centre adopted for general purposes, e.g. family or career. This is the "real home test": it necessarily means that a person has at any one time only one ordinary residence, viz. his "real home". And they accept that this was the test which they applied. In doing so, they followed guidance given to L.E.A.s by the Department of Education and Science circular letter of the 27th January 1972.

The Shropshire County Council contend for a variant of this test, namely a person's residence, permanent or indefinite, where he lives as a member of the general community and not merely for a specific or limited purpose. This contention is very close to the view expressed by the Divisional Court. It is clear from the documents embodying their decision that this was the test which they applied.

Counsel for the L.E.A.s recognised and, indeed, submitted, that it is a necessary consequence of the "real home" test, or its variant, that a man can have only one ordinary residence at any one time. It was said on behalf of Brent and Barnet that this view was supported by the "recoupment" provisions to which I have already referred. For the reasons already given I derive no assistance from those provisions. What is important is to note that the test is wholly inconsistent with the natural and ordinary meaning of the words as construed by this House in the two tax cases. Indeed it is, I believe, an unhappy echo of "domicile", the rules for ascertaining which impose great difficulties of proof. In chapter 8 of Dicey and Morris, Conflict of Laws, 8th edition (1967) one finds the comment that "the notion which lies at the root of the concept of domicile is that of permanent home ". The long and notorious existence of this difficult concept in our law, dependent upon a refined, subtle, and frequently very expensive judicial investigation of the devious twists and turns of the mind of man, must have been known to Parliament when enacting the Act of 1962. The choice of ordinary residence for determining the test of eligibility for a mandatory award suggests to my mind a legislative intention not to impose upon L.E.A.s who are entrusted with the duty of making mandatory awards the infinitely difficult, if not impossible, task of determining whether a student has established a permanent home in the United Kingdom. Further, the language of the Regulation lays emphasis not on intention or expectation for the future which is implicit in the idea of permanence, but on immediately past events, namely the usual order of the applicant's way of life and the place where in fact he has lived during the three years preceding his projected course of further education. There are, therefore, powerful reasons for holding that by selecting ordinary residence Parliament intended L.E.A.s to address their minds to a test more objective and less subjective than domicile or the concept of "real home" which is a reflection of it. If the words of the Regulation are allowed to have their natural and ordinary meaning, such intention will be fulfilled. I would add one further comment. By giving the words their natural and ordinary meaning one helps to prevent the growth and multiplication of refined and subtle distinctions in the law's use of common English words. Nothing is more confusing and more likely to bring the statute law into disrepute than a proliferation by judicial interpretation of special meanings, when Parliament has not expressly enacted any.

One of the unusual features in this very unusual litigation is that the L.E.A.s in this House seek to support the conclusions but not the reasoning of the judgments in the Divisional Court and the Court of Appeal. Both courts relied on policy considerations and the impact of the Immigration Act 1971. If, and in so far as, either court relied (and Lord Denning certainly did) on the Immigration Act as an aid to the interpretation of the Education Act 1962 and the regulations made thereunder, no party represented in your Lordships' House has been prepared to support this line of argument. It is recognised that the only relevance of the Act is that it established immigration control, which may give rise to relevant facts, but no more, in determining whether in truth a man is ordinarily resident in the United Kingdom.

If, and in so far as, either court relied on their own subjective ideas as to policy, the same is true. Counsel has not sought to say that this approach was correct.

The Divisional Court rejected in terms the "real home" test but attached importance to the purpose or reason for a person's presence in the United Kingdom: Reg. v. Barnet B. C. [1981] 2 W.L.R. 86. In their view, there must be shown an intention to live here on a permanent basis as part of the general community; if a person's presence here was for a " specific or " limited purpose only ", e.g. to pursue a course of study, he would not be ordinarily resident. This, it will be remembered, is also the way the Shropshire County Council has put its case.

The court attached importance to the terms upon which the immigration authority permitted the student to enter the country. "His immigration status is not in itself conclusive, but it justifies [the] inference" (p. 98) that he intends to stay only for a limited period. And so, because Nilish Shah was admitted for settlement, he was held to be ordinarily resident: but, because Jitendra Shah was admitted only for the purpose of study, the L.E.A. was held to be entitled to decide he was not eligible for a mandatory award. The court thought they were confirmed in their construc­tion of the 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.".

Three points emerge as of critical importance in the court's judgment: — First, the emphasis laid upon the purpose of the presence here: secondly, the reliance upon "immigration status" and thirdly, the reliance upon policy considerations derived not from the education legislation itself but from the court's own view as to what Parliament could or could not have intended.

In the Court of Appeal all three judges also emphasised the importance of immigration status: [1982] 2 W.L.R. 474. Lord Denning believed (p. 482) " ... we must abandon our traditional method of interpretation and say what is the meaning of the words 'ordinarily resident' in the context of the situation brought about by the Immigration Act 1971." He also expressed himself as much influenced by the policy considerations which influenced the Divisional Court. In the result he decided the appeals according to the terms of each student's leave to enter the United Kingdom. If the student was granted indefinite leave (Nilish Shah) or possessed the right of abode, he would be ordinarily resident: but if he had limited leave only, he would be "shut out" from eligibility for a mandatory award.

Eveleigh LJ. adopted the approach of the Divisional Court. He denied the relevance of the tax cases saying that "when [a person] seeks to claim a benefit from the state ... the position will be different" (p.484). He had the immigration legislation in mind and, in effect, decided each case according to the terms of the student's leave to enter the country. He alone of the judges dealt explicitly with the claim for a discretionary award, holding that "there is no obligation upon an authority to consider an application from the point of view of its discretionary power".

Templeman LJ. made one point of great importance: namely, that the words must be construed so as to enable L.E.A.s to establish without undue difficulty eligibility for an award. But he also attached critical importance to policy considerations, prefacing a long passage (p. 489) in his judgment on policy with the words: —

"It is improbable that the Education Act 1962 was intended to entitle overseas students to a mandatory award. In the end he based his decision on the immigration status of the student and on his view that "ordinary residence" implies a home. A person will not become ordinarily resident in the United Kingdom unless and until he becomes entitled to remain in the United Kingdom indefinitely Finally (p.494) he summed up his view as follows:—

" ... 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."

He found the simplicity, for which he was right to search, in immigration status.

My Lords, the basic error of law in the judgments below was the failure by all the judges, save Lord Denning, to appreciate the authoritative guidance given by this House in the Levene and Lysaght cases as to the natural and ordinary meaning of the words " ordinarily resident They attached too much importance to the particular purpose of the residence; and too little to the evidence of a regular mode of life adopted voluntarily and for a settled purpose, whatever it be, whether study, business, work, or pleasure. In so doing, they were influenced by their own views of policy and by the immigration status of the students.

The way in which they used policy was, in my judgment, an impermissible approach to the interpretation of statutory language. Judges may not interpret statutes in the light of their own views as to policy. They may, of course, adopt a purposive interpretation if they can find in the statute read as a whole or in material to which they are permitted by law to refer as aids to interpretation an expression of Parliament's purpose or policy. But that is not this case. The Education Act's only guidance is the requirement contained in the Regulations that, to be eligible for a mandatory award, a student must have been ordinarily resident in the United Kingdom for three years. There is no hint of any other restriction, provided, of course, he has the educational qualifications and his conduct is satisfactory.

Both courts also agreed in attaching decisive importance to what the Divisional Court called "the immigration status" of the students. "Immigration status", unless it be that of one who has no right to be here, in which event presence in the United Kingdom is unlawful, means no more than the terms of a person's leave to enter as stamped upon his passport. This may or may not be a guide to a person's intention in establishing a residence in this country: it certainly cannot be the decisive test, as in effect the courts below have treated it. Moreover in the context with which these appeals are concerned, i.e. past residence, intention or expectations for the future, are not critical: what matters is the course of living over the past three years.

A further error was their view that a specific limited purpose could not be the settled purpose, which is recognised as an essential ingredient of ordinary residence. This was, no doubt, because they discarded the guidance of the Levene and Lysaght cases. But it was also a confusion of thought: for study can be as settled a purpose as business or pleasure. And the notion of a permanent or indefinitely enduring purpose as an element in ordinary residence derives not from the natural and ordinary meaning of the words "ordinarily resident" but from a confusion of it with domicile.

I, therefore, reject the conclusions and reasoning of the courts below. And I also reject the "real home" test (and the variant of it) for which the L.E.A.s contended. In my view neither the test nor the variant is consistent with the natural and ordinary meaning of the words. And, once it is accepted that it is not legitimate to look to the "recoupment" provisions of the Education Acts for guidance, there is nothing in the Acts to suggest that the words should bear any other than their natural and ordinary meaning. In particular, the Immigration Act 1971, passed some 19 years after the Education Act 1962, gives no guidance to the interpretation of that Act. It cannot be permissible in the absence of a reference (express or necessarily to be implied) by one statute to the other to interpret an earlier Act by reference to a later Act. But, if it were permissible to refer to the Immigration Act as an aid in the interpretation of the education legislation, it would immediately become apparent that the Act uses "ordinary  residence" to denote something less than "right of abode" and less even than "settlement". Indeed, it would seem to use the words in their natural and ordinary meaning: see ss. 2(l)(c); 2(3)(d); 7; 33(2); Schedule 1, Appendix A (the substituted s. 5A, (3), British Nationality Act 1948). The indications are, therefore, strong that the Immigration Act uses the words in their natural and ordinary meaning, though it is not, of course, necessary to decide the question in these appeals.

My Lords, it is, therefore, my view that L.E.A.s, when considering an application for a mandatory award, must ask themselves the question: — has the applicant shown that he has habitually and normally resided in the United Kingdom from choice and for a settled purpose throughout the prescribed period, apart from temporary or occasional absences? If an L.E.A. asks this, the correct, question, it is then for it, and it alone, to determine whether as a matter of fact the applicant has shown such residence. An authority is not required to determine his "real home", whatever that means: nor need any attempt be made to discover what his long term future intentions or expectations are. The relevant period is not the future but one which has largely (or wholly) elapsed, namely that between the date of the commencement of his proposed course and the date of his arrival in the United Kingdom. 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 residence 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.

I now turn to the student Shabpar's alternative case in relation to a discretionary grant. This case does not now arise for decision, but it does raise a question upon which it was made clear L.E.A.s would welcome guidance. Eveleigh L.J., who alone of the Appeal judges dealt with the power to grant a discretionary award, expressed the opinion that upon an application for an award under s. 1 of the Education Act 1962 there was no obligation upon the authority to consider it " from the point of view of its "discretionary power": p.485. I cannot agree. When a student applies for an award under s. 1 of the 1962 Act (or its modern equivalent) he is to be understood to be applying for one or other of the awards available under the section, i.e. mandatory under subsection (1) or, if he fails, discretionary under subsection (4). His application under the section, unless it be expressly limited to a mandatory award, which it was not in Shabpar's case and is in any event highly improbable, involves the duty to consider whether or not to make a discretionary award in the event of a failure to establish eligibility for a mandatory award. In my view, therefore, an application under s. 1 of the Act, or its modem equivalent, requires, unless it be in terms a restricted application, the L.E.A. to consider the exercise of its discretion, if it has concluded that the applicant is not entitled to a mandatory award.

Finally, on this part of the case I must salute in passing, but without deciding, the interesting points made on behalf of the students by Mr. Lester Q.C. and adopted by Mr. Beloff Q.C., which were concerned with the possible impact upon these cases of European Community law and the European Convention on Human Rights and Fundamental Freedoms. The points only arise for discussion if the House should be disposed to favour the "real home" test, or its variant, the limited purpose test, as determinative of ordinary residence in the context of eligibility for a mandatory award. I am not so disposed: and I do not understand Mr. Lester to suggest that either the European Communities Act 1972 or the European Convention contains any rule or provision which should discourage the House from giving to the words "ordinarily resident" in the present context the natural and ordinary meaning recognised and adopted by the House in 1928. I am, therefore, in duty bound to resist, as unnecessary, the invitation to explore the fascinating vistas of. legal speculation which Mr. Lester has skilfully and temptingly opened to our view.

In the result, I am satisfied that the L.E.A.s misdirected themselves in law. It is now settled law that an administrative or executive authority entrusted with the exercise of a discretion must direct itself properly in law: A.P.P.H. v. Wednesbury Corporation [1948] 1 K.B. 233 at p.229. The duty of decision entrusted to the L.E.A.s is a comparable function. In truth, it is a stronger case for judicial review; for if the applicant establishes the facts required by law, he has a right to receive, and the L.E.A. a duty to bestow, an award. It follows, therefore, that all the students have made out their case for judicial review. The remedy available upon judicial review is, however, discretionary and a matter for the court: O'Reilly v. Mackman, H.L., un-reported. Nilish Shah, who succeeded before the Divisional Court and now has the L.E.A.'s appeal from that decision finally dismissed, was granted by the Divisional Court an order of certiorari to quash the refusal of a mandatory award and an order of mandamus to require the authority to re-consider his application for an award. My Lords, I think this is the appropriate relief: for it avoids any semblance of the courts assuming the function assigned by Parliament to the L.E.A.s, namely the power to decide whether to make or to refuse an award. Counsel for the students did suggest that declaratory relief was appropriate. Declarations are appropriate to declare an entitlement or a right, or a duty. But this is exactly what the courts cannot, and must not do, in these cases. It is not for the courts to say either that the students are entitled to an award or that the authorities are under a duty to make an award. The function of the court is to ensure due observance of the law: that is all. However, it suffices for the purpose of the appeals, without exploring any further what is a developing branch of the law, to say that certiorari and mandamus will do justice, in that their combined effect will be to remit to the authorities the task of decision which the statute imposes upon them. In performing their task it will be their duty to follow the guidance as to the law now given by your Lordships' House.

Accordingly, I would allow the appeals of Akbarali, Mohammed Abdullah, Jitendra Shah, and Shabpar and propose that certiorari and mandamus should go to the authorities concerned. Barnet's appeal in Nilish Shah's case is dismissed, the order made by the Divisional Court being upheld. The students should have their costs here and below. And there must be legal aid taxation in all five cases of the students' costs.

Lord Lowry

My Lords,

The legal and public interest of the points at issue in these appeals and the excellence of the argument on each side offer an invitation to which it is tempting to respond. I have, however, read in draft the speech of my noble and learned friend, Lord Scarman, which expresses so exactly and so elegantly my own view of the matter that it would be pointless, even in this important case, for me to add anything.

I am therefore content to agree with my noble and learned friend's opinion, including that part which refers to discretionary awards, and with the order which he has proposed.

Lord Roskill

My Lords,

I have had the advantage of reading in draft the speech of my noble and learned friend, Lord Scarman. I agree with it in all respects. For the reasons he gives I would allow the first four appeals and dismiss the appeal in the case of Nilish Shah.

Lord Brandon of Oakbrook

My Lords,

I have had the advantage of reading in draft the speech prepared by my noble and learned friend, Lord Scarman. I agree with it, and for the reasons which he gives would allow the first four appeals and dismiss the last appeal against Nilish Shah.

Akbarali (A.P.) (Appellent)

v.

Brent [London Borough Council (Respondents)

JUDGMENT

Die Jovis 16° Decembris 1982

Upon Report from the Appellate Committee to whom was referred the Cause Akbarali against Brent London Borough Council, That the Committee had heard Counsel as well on Monday the 26th, Tuesday the 27th, Wednesday the 28th and Thursday the 29th days of July last as on Thursday the 1'th, Monday the 18th, Tuesday the 19 th, Wednesday the 20th and Thursday the 21st days of October last upon the Petition and Appeal of Hamid Inayatali Akbarali of Room 1015 Lightfoot Hall, Menresa Road, London SW3 praying that the matter of the Order set forth in the Schedule thereto, namely an Order of Her Majesty's Court .of Appeal of the 10th day of November 1981 might be reviewed before Her Majesty the Queen in Her Court of Parliament and that the said Order might be reversed, varied or altered or that the Petitioner might have such other relief in the premises as to Her Majesty the Queen in Her Court of Parliament might seem meet; as also upon the Case of Brent London Borough Council lodged in answer to the said Appeal; and due consideration had this day of what was offered on either side in this Cause:

It is Ordered and Adjudged, by the Lords Spiritual and Temporal in the Court of Parliament of Her Majesty the Queen assembled, That the said Order of Her Majesty's Court of Appeal of the 10th day of November 1981 complained of in the said Appeal be, and the same is hereby. Set Aside except so far as regards the words "the Applicant's Hamid Inayatali Akbarali costs be taxed in accordance with the provisions of the Second Schedule to the Legal Aid Act 1974"t. And it is Ordered, that the Cause be, and the same is hereby, remitted back to the Queen's Bench Division of the High Court of Justice with a Direction that the Appellant be granted an Order of certiorari to quash the Respondents' decision initially contained in a letter dated the 1st day of August 1978, and an Order of mandamus requiring the Respondents to reconsider his application for an award: And it is further Ordered, That the Respondents do pay or cause to be paid to the said Appellant the Costs incurred by him in the Courts below and also the Costs incurred by him in respect of the said Appeal to this House, and that the Appellant's Costs in this House be taxed in accordance with the provisions of Schedule 2 to the Legal Aid Act 1974.

Shabpar (A.P.) (Appellant)

v.

London Borough of Barnet (Respondents)

JUDGMENT

Die Jovis 16° Decembris 1982

Upon Report from the Appellate Committee to whom was referred the Cause Shah against the London Borough of Barnet, That the Committee had heard Counsel as well on Monday the 26th, Tuesday the 27th, Wednesday the 28th and Thursday the 29th days of July last as on Thursday the 14th, Monday the 18th, Tuesday the 19th, Wednesday the 20th and Thursday the 21st days of October last upon the Petition and Appeal of Jitendra Umedchand Harakchand Shah of 47 Highwood Avenue, London N12 praying that the matter of the Order set forth in the Schedule thereto, namely an Order of Her Majesty's Court of Appeal of the 10th day of November 1981 might be reviewed before Her Majesty the Queen in Her Court of Parliament and that the said Order might be reversed, varied or altered or that the Petitioner might have such other relief in the premises as to Her Majesty the Queen in Her Court of Parliament might seem meet; as also upon the Case of the London Borough of Barnet lodged in answer to the said Appeal? and due consideration had this day of what was offered on either side in this Cause:

It is Ordered and Adjudged, by the Lords Spiritual and Temporal in the Court of Parliament of Her Majesty the Queen assembled, That the said Order of Her Majesty's Court of Appeal of the 10th day of November 1981 complained of in the said Appeal be, and the same is hereby, Set Aside except so far as regards the words "the Applicant's Costs be taxed in accordance with the provisions of the Second Schedule to the Legal Aid Act 1974": And it is Ordered, that the Cause be, and the same is hereby, remitted back to the Queen's Bench Division of the High Court of Justice with a Direction that the Appellant be granted an Order of certiorari to quash the ! Respondents' decision notified by letter dated 1st August 1979 refusing to bestow upon him a Major Award, and an Order of mandamus requiring the Respondents to reconsider his application for a Major Award: And it is further Ordered, That the Respondents do pay or cause to be paid to the said Appellant the Costs incurred by him in the Courts below and also the Costs incurred by him in respect of the said Appeal to this House, and that the Appellant's Costs in this House be taxed in accordance with the provisions of Schedule 2 to the Legal Aid Act 1974.

London Borough of Barnet (Appellants)

v.

Nilish Shah (A.P.) (Respondent)

JUDGMENT

Die Jovis 16° Decembris 1982

Upon Report from the Appellate Committee to whom was referred the Cause the London Borough of Barnet against Nilish Shah, That the Committee had heard Counsel as well on Monday the 26th, Tuesday the 27th, Wednesday the 28th and Thursday the 29th days of July last as on Thursday the 14th, Monday the 18th, Tuesday the 19th, Wednesday the 20th and Thursday the 21st days of October last upon the Petition and Appeal of the London Borough of Barnet praying that the matter of the Order set forth in the Schedule thereto, namely an Order of Her Majesty's Court of Appeal of the 10th day of November 1981 might be reviewed before Her Majesty the Queen in Her Court of Parliament and that the said Order might be reversed, varied or altered or that the Petitioner might have such other relief in the premises as to Her Majesty the Queen in Her Court of Parliament might seem meet; as also upon the Case of Nilish Ramniklal Lalji Shah lodged in answer to the said Appeal; and due consideration had this day of what was offered on either side in this Cause:

It is Ordered and Adjudged, by the Lords Spiritual and Temporal in the Court of Parliament of Her Majesty the Queen assembled. That the said Order of Her Majesty's Court of Appeal of the 10th day of November 1981 complained of in the said Appeal be, and the same is hereby, Affirmed and that the said Petition and Appeal be, and the same is hereby, dismissed this House: And it is further Ordered, That the Appellants do pay or cause to be paid to the said Respondent the Costs incurred by him in the Courts below and in this House and that the Respondent's Costs in this House be taxed in accordance with the provisions of Schedule 2 to the Legal Aid Act 1974.

Abdullah (A.P.) (Appellant)

v.                                                   :

Shropshire County Council (Respondents)

JUDGMENT

Die Jovis 16° Decembris 1982

Upon Report from the Appellate Committee to whom was referred the Cause Abdullah against Shropshire County Council, That the Committee had heard Counsel as well on Monday the 26th, Tuesday the 27th, Wednesday the 28th and Thursday the 29th days of July last as on Thursday the 14th, Monday the 18th, Tuesday the 19th, Wednesday the 20th and Thursday the 21st days of October last upon the Petition and Appeal of Abu Naim Mohammed Abdullah of 45 Alfreda Street, London SW11 praying that the matter of the Order set forth in the Schedule thereto, namely an Order of Her Majesty's Court of Appeal of the 10th day of November 1981 might be reviewed before Her Majesty the Queen in Her Court of Parliament and that the said Order might be reversed, varied or altered or that the Petitioner might have such other relief in the premises as to Her Majesty the Queen in Her Court of Parliament might seem meet; as also upon the Case of Shropshire County Council lodged in answer to the said Appeal; and due consideration had this day of what was offered on either side in this Cause:

It is Ordered and Adjudged, by the Lords Spiritual and Temporal in the Court of Parliament of Her Majesty the Queen assembled, That the said Order of Her Majesty^s Court of Appeal of the 10th day of November 1981 complained of in the said Appeal be, and the same is hereby. Set Aside except so far as regards the words "the Applicant's costs be taxed in accordance with the provisions of the Second Schedule to the Legal Aid Act 1974": And it is Ordered, that the Cause be, and the same is hereby, remitted back to the Queen's Bench Division of the High Court of Justice with a Direction that the Appellant be granted an Order of certiorari to quash the Respondents' decision contained in a letter dated the 14th day of June 1979, and an Order of mandamus requiring the Respondents to reconsider his application for an award: And it is further Ordered, That the Respondents do pay or .cause to be paid to the said Appellant the Costs incurred by him in the Courts below and also the Costs incurred by him in respect of the said Appeal to this House, and that the Appellant's Costs in this House be taxed in accordance with the provisions of Schedule 2 to the Legal Aid Act 1974.

Shabpar (A.P.) (Appellant)

v.

London Borough of Barnet (Respondents)

JUDGMENT

Die Jovis 16° Decembris 1982

Upon Report from the Appellate Committee to whom was referred the Cause Shabpar against the London Borough of - Barnet, That the Committee had heard Counsel as well on Monday the 26th, Tuesday the 27th, Wednesday the 28th and Thursday the 29th days of July last as on Thursday the 14th, Monday the 18th, Tuesday the 19th, Wednesday the 20th and Thursday the 21st days of October last upon the Petition and Appeal of Madjid Shabpar of 106 Finchley Lane, London NW4 praying that the matter of the Order set forth in the Schedule thereto, namely an Order of Her Majesty's Court of Appeal of the 10th day of November 1981 might be reviewed before Her Majesty the Queen in Her Court of Parliament and that the said Order might be reversed, varied or altered or that the Petitioner might have such other relief in the premises as to Her Majesty the Queen in Her Court of Parliament might seem meet; as also upon the. Case of the London Borough of Barnet lodged in answer to the said Appeal; and due consideration had this day of what was offered on either side in this Cause:

It is Ordered - and Adjudged, by the Lords Spiritual .and Temporal in the Court of Parliament of Her Majesty the Queen assembled. That the said Order of Her Majesty's Court of Appeal of the 10th day of November 1981 complained of in the said Appeal be, and the same is hereby. Set Aside except so far as regards the words "no order made as to costs save. and except Legal Aid Taxation": And it is Ordered, that the Cause be, and the same is hereby, remitted back to the Queen's Bench Division of the High Court of Justice with a Direction that the Appellant be granted an Order of certiorari to quash the Respondents' refusal dated the 17th day of February 1981 to bestow upon him a Major Award, and an Order of mandamus requiring the Respondents to reconsider his application for a Major Award: And it is further Ordered, That the Respondents do pay or cause to be paid to the said Appellant the Costs incurred by him in the Courts below and also the Costs incurred by him in respect of the said Appeal to this House, and that the Appellant's Costs in this House be taxed in accordance with the provisions of Schedule 2 to the Legal Aid Act 1974.