R v Barnet London Borough Council, Ex p Nilish Shah (Abdullah v Shropshire County Council, Akbarali v Brent London Borough Council, Jitendra Shah, Ex parte, Jitendra Shah v Barnet London Borough Council, Nilish Shah, Ex parte, R v Barnet London Borough Council, Ex parte Jitendra Shah, R v Barnet London Borough Council, Ex parte Shabpar, R v Brent London Borough Council, Ex parte Akbarali, R v Inner London Education Authority, Ex parte Ablack, R v Shropshire County Council, Ex parte Abdullah, Shabpar, Ex parte, Shabpar v Barnet London Borough Council)

A person is ordinarily resident where they habitually and normally live from choice and for a settled purpose as part of the regular order of life. The purpose may be limited in duration and may include education. Ordinary residence neither requires a permanent or indefinite home nor depends decisively upon immigration status.

Temporary or occasional absences do not necessarily interrupt ordinary residence, and a person may be ordinarily resident in more than one country. Unlawful presence cannot found ordinary residence. Once a public authority applies the correct legal test, the existence of ordinary residence is a question of fact for that authority.

Five conjoined appeals concerned immigrant students whose applications to local education authorities for higher-education awards had been refused. Four had entered the United Kingdom with limited leave for study; Nilish Shah had entered for settlement and received indefinite leave. Each claimed to have satisfied the prescribed requirement of three years' ordinary residence.

The Divisional Court allowed Nilish Shah's application but dismissed Jitendra Shah's. Other Divisional Courts refused relief to the remaining students. The Court of Appeal, in [1982] 2 WLR 474, upheld Nilish Shah's success and dismissed the other appeals.

The principal question was the meaning of ordinary residence under the education legislation. The House also considered the proper judicial-review remedy and, as guidance, whether an unrestricted application for an award required consideration of a discretionary award.

1. Disposition. Lord Scarman delivered the leading speech. Lord Fraser of Tullybelton, Lord Lowry, Lord Roskill and Lord Brandon of Oakbrook agreed. The students' four appeals were allowed unanimously, while Barnet's appeal concerning Nilish Shah was dismissed unanimously.
2. Ordinary residence. Per Lord Scarman, the expression bears its natural and ordinary meaning. A person is ordinarily resident where their abode has been adopted voluntarily and for settled purposes as part of the regular order of life for the time being. The residence may be of short or long duration. A settled purpose need not be permanent or indefinite and may consist of education, business, employment, health, family life or attachment to a place. Regular and habitual residence may continue despite temporary or occasional absences.
3. The House rejected the authorities' “real home” and “general community” tests. Those approaches confused ordinary residence with domicile. They also placed excessive weight upon the particular purpose of residence, future intentions and immigration status. Limited leave to remain may be evidentially relevant, but it is not decisive. The material inquiry concerns the applicant's actual course of life during the prescribed past period.
4. A person may be ordinarily resident in more than one country. Presence which contravenes immigration law is an exception: unlawful residence cannot be relied upon to obtain a statutory advantage.
5. The lower courts erred by using their own policy views to construe the legislation. A purposive construction must be founded upon the statute or permissible interpretative material. The later Immigration Act 1971 did not alter the meaning of the earlier education legislation.
6. Whether the facts establish ordinary residence is for the local education authority once it has directed itself correctly in law. The authorities had applied legally erroneous tests. Certiorari therefore issued to quash their decisions, and mandamus required reconsideration under the correct test. Declaratory relief was inappropriate because the courts could not decide the merits committed to the authorities.
7. As non-dispositive guidance, Lord Scarman held that an unrestricted application under section 1 of the Education Act 1962 encompasses a mandatory award and, if eligibility fails, a discretionary award. The authority must therefore consider its discretionary power unless the application is expressly restricted.

1. House of Lords: The four unsuccessful students' appeals were allowed, and Barnet's appeal concerning Nilish Shah was dismissed. Certiorari and mandamus were ordered, with the applications remitted to the relevant authorities for reconsideration.
2. Court of Appeal: In [1982] 2 WLR 474, the court upheld the decision in favour of Nilish Shah and dismissed the appeals of the other four students.
3. Divisional Courts of the High Court: The court allowed Nilish Shah's application but dismissed Jitendra Shah's, distinguishing between entry for settlement and entry with limited leave for study. Judicial review was refused in the other limited-leave cases.