Extracts from the case of Shah v London Borough of Barnet [1983] 1 All ER 226
This is the key case in relation to the meaning of ordinary
residence and it is often quoted in other cases. Note: in the extracts
below, Lord Scarman uses the term 'settled purpose'. This should not be
confused with the requirement in the fees and Student Support
regulations that someone should be 'settled' within the meaning of the
Immigration Act 1971.
"It is my view that LEAs, 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 LEA 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 intention 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 in itself a breach of the
terms of his leave, in which event his residence, being unlawful, could
not be ordinary.
"There are two, and no more than two, respects in which the mind of
the propositus [the student applicant] 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 1982 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 the state of mind. Templeman LJ emphasised in the Court
of Appeal the need for a simple test for LEAs to apply: and I agree
with him. The ordinary and natural meaning of the words supplies one.
For if there is to 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 if
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 enquiry into such questions call for any deep examination of
the mind of the propositus."