Arogundade R (on the application of) v Secretary of State for Business, Innovation & Skills

For student support funded from public funds, ordinary residence ordinarily requires lawful residence. Physical presence in breach of immigration law cannot be relied upon to satisfy a prescribed ordinary-residence period where the statutory scheme is directed to demonstrating an established and lawful connection with the country. The court must construe the requirement in its statutory context, having regard to the scheme’s purpose, public policy and administrative operation. The result differs from provisions concerned with jurisdiction or last-resort welfare assistance, where Parliament may have intended residence to be assessed without an implied legality requirement.

The claimant, who had overstayed in the United Kingdom before receiving discretionary leave to remain, sought judicial review of the withdrawal of student support. The Secretary of State concluded that she had not completed the required three years’ ordinary residence before the relevant academic year because part of that residence was unlawful under the Immigration Act 1971.

The issue was whether paragraph 5(1)(c) of Part 2 of Schedule 1 to the Education (Student Support) Regulations 2009 required ordinary residence during the three-year period to be lawful.

1. Claim dismissed. Ordinary residence for the purposes of paragraph 5(1)(c) of Part 2 of Schedule 1 to the Education (Student Support) Regulations 2009 requires lawful residence and excludes residence in breach of the immigration rules.
2. The absence of express words requiring lawful residence did not determine the issue. The regulation had to be construed in its statutory context, having regard to the object and purpose of the student-support scheme and broader public-policy considerations.
3. The reasoning of Lord Scarman in R v Barnet London Borough Council, ex parte Shah [1983] 2 AC 309 provided a persuasive and authoritative starting point. Although the relevant observations concerning unlawful residence had been obiter in that case, they addressed the same essential requirement: establishing ordinary residence over a prescribed period as a condition of receiving public funds. A person should not obtain that advantage by relying on his own unlawful act.
4. The requirement for a particular immigration or nationality status did not replace or diminish the separate requirement of ordinary residence. Nor did the references to settled status and the Immigration Act 1971 create inconsistency. They reinforced the conclusion that ordinary residence should have a consistent meaning within the regulatory scheme.
5. The court distinguished Mark v Mark [2006] 1 AC 98, which concerned jurisdiction to dissolve a marriage, from entitlement to a benefit from public funds. It also distinguished R v Wandsworth London Borough Council, ex parte O [2000] 4 All ER 590, which concerned assistance of last resort under a statutory scheme based on presence and urgent need. The reasoning in R (on the application of YA) v Secretary of State for Health [2010] 1 All ER 87 was closer to the present context and supported the lawful-residence requirement.
6. Human-rights considerations, the claimant’s particular circumstances and the provisions permitting termination or denial of eligibility for misconduct did not displace the requirement. The claim therefore failed. The court was to hear submissions on the appropriate form of relief.

The judgment does not state an appeal from an earlier judicial decision. It records an unsuccessful appeal against the Student Loans Company determination, recovery of jurisdiction by the Secretary of State, and permission to seek judicial review granted on 7 March 2012.