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

Under the Education (Student Support) Regulations 2009, “ordinary residence” includes an implied requirement of lawful residence. A qualifying immigration status and the prescribed period of lawful ordinary residence are cumulative conditions. Later regularisation does not make earlier unlawful residence count. The court applied the rationale expressed in Shah, while distinguishing statutory regimes concerned with different benefits or with expressly regularising unlawful conduct.

The claimant, a Nigerian national, sought student finance for higher education. She had overstayed her visitor’s visa before later obtaining discretionary leave to remain. The Secretary of State concluded that she lacked the required three-year period of ordinary residence because part of that period was unlawful.

The Administrative Court, with a Deputy High Court Judge sitting, dismissed her application for judicial review on 7 September 2012. The claimant appealed to the Court of Appeal, arguing that the 2009 Regulations did not require lawful residence and that later authorities had displaced the approach in Shah. The central issue was whether unlawful residence could count towards the prescribed period of ordinary residence.

1. Appeal dismissed. The Deputy Judge had correctly dismissed the application for judicial review.
2. The dicta of Lord Scarman in R v London Borough of Barnet, ex p. Shah [1983] 2 AC 309, although obiter in that case, clearly explained why lawfulness is implied into ordinary residence in this legislative field. That settled understanding was applicable to the 2009 Regulations.
3. The requirement for a particular lawful immigration status and the requirement of ordinary residence for the prescribed period were cumulative. A person who later acquired leave to remain could not rely on earlier unlawful residence to satisfy the residence condition.
4. Mark v Mark [2006] 1 AC 98 illustrated that the meaning of residence depends on statutory context. It did not require the same construction in a student-support scheme. The reasoning in R (YA) v Secretary of State for Health [2009] EWCA Civ 225 was consistent with the conclusion in this benefit context.
5. Welwyn Hatfield BC v Secretary of State [2011] 2 AC 264 did not assist the claimant. That case concerned a statutory provision expressly capable of regularising unlawful conduct and exceptionally egregious behaviour. Paragraph 5(1)(c) of Schedule 1 raised no comparable issue.
6. Sir Stanley Burnton added that the parallel Schedule 1 categories for EEA, EC, Swiss and Turkish nationals, which also required ordinary residence, reinforced the interpretation that ordinary residence imports lawful residence. The Court dismissed the appeal.

• Court of Appeal (Civil Division): Appeal dismissed. The court upheld the order of 7 September 2012.
• High Court, Administrative Court: The Deputy High Court Judge dismissed the application for judicial review.