R v Barnet London Borough Council, ex parte Nilish Shah
| Jurisdiction | England & Wales |
| Judge | THE MASTER OF THE ROLLS,LORD JUSTICE EVELEIGH,LORD JUSTICE TEMPLEMAN |
| Judgment Date | 10 November 1981 |
| Judgment citation (vLex) | [1981] EWCA Civ J1110-1 |
| Docket Number | 81/0428 |
| Court | Court of Appeal (Civil Division) |
| Date | 10 November 1981 |
[1981] EWCA Civ J1110-1
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION (DIVISIONAL COURT)
(ORMROD, L.J., KILNER BROWN and McNEILL, J.J.)
Royal Courts of Justice.
The Master of the Rolls
(Lord Denning)
Lord Justice Eveleigh and
Lord Justice Templeman
81/0428
MR. ANTHONY LESTER, Q.C. (instructed by Messrs. Jagues & Co.) appeared on behalf of the Respondent (Nilish Shah).
MR. ANTHONY SCRIVENER, Q.C. and MR. ROBIN BARRATT (instructed by Ian Bennett, Esq., Solicitor, London Borough of Barnet) appeared on behalf of the Appellant (London Borough of Barnet).
MR. ANTHONY LESTER, Q.C. (instructed by Messrs. Jagues & Co.) appeared on behalf of the Appellant (Jitendra Shah).
MR. ANTHONY SCRIVENER, Q.C. and MR. ROBIN BARRATT (instructed by Ian Bennett, Esq., Solicitor, London Borough of Barnet) appeared on behalf of the Respondent (London Borough of Barnet).
MR. MICHAEL BELOFF, Q.C. (instructed by Messrs. Bindman & Partners) appeared on behalf of the Applicant.
MR. R. BARRATT (instructed by the Director of Law and Administration, London Borough of Brent) appeared on behalf of the Respondent.
MR. MICHAEL BELOFF, Q.C. (instructed by Messrs. Bindman & Partners) appeared on behalf of the Applicant.
MISS E. APPLEBY, Q.C. and MR. S. AITCHISON (instructed by the Solicitor, Shropshire County Council) appeared on behalf of the Respondent.
MR. MICHAEL BELOFF, Q.C. (instructed by Messrs. Bindman & Partners) appeared on behalf of the Applicant.
MR. ANTHONY SCRIVENER, Q.C. and MR. ROBIN BARRATT (instructed by the Director of Legal Services, Greater London Council) appeared on behalf of the Respondent.
MR. K.S. NATHAN (instructed by Messrs. Nicholls Christie & Crocker) appeared on behalf of the Appellant.
MR. ANTHONY SCRIVENER, Q.C. and MR. ROBIN BARRATT (instructed by Ian Bennett, Esq., Solicitor, London Borough of Barnet) appeared on behalf of the Respondent.
When students go to a university or polytechnic to take a degree, many of them get a grant from a local education authority to help them with the expense. The amount depends on their parents' income, and so forth. In order to be entitled as of right to a grant, they have to be "ordinarily resident" in this country throughout the three years before the course starts. When they are not entitled as of right, the local education authority have a discretion whether to make a grant or not.
We are today only concerned with mandatory awards to which the students are entitled as of right. It is the words "ordinarily resident" which cause the trouble. No difficulty arises with students who have their homes here and have been here all their lives. But much difficulty arises with students born overseas and coming from overseas. Many of them have been here for some time. They have come as boys or girls and have been to school here. Their parents have paid the school fees, but now want to get a grant towards their expenses at the universities or polytechnics. These young men and women seek a mandatory award under which the local education authority are bound to make them a grant. In a sense they seek a special privilege over and above our home students. Their parents will not have paid income tax in this country—out of which the grants have to come. But yet these students claim to have the same benefit as the children of parents who have been here and paid taxes here all their lives.
To test the position, six cases have been brought before the courts. Each presents different features.
Nilish Shah is now 22. He is a citizen of Kenya with a Kenyan passport. He came here on the 7th August, 1976 when he was aged 17. He went to technical colleges (which I will call schools) here from September 1976 to June 1979. He stayed with relatives, and went daily to school. He did well in his exams. He went back to Kenya each year for his summer holidays with his parents. In October 1979, at the age of 20, he started his university course at Manchester University, studying for a B.Sc. degree. The question is whether he was "ordinarily resident" here for the three years from October 1976 to October 1979.
His case differs from most of the others, because he did not come on a student's visa. He came with his father and mother on a "settlement" basis. They had an entry certificate issued in Nairobi marked "for settlement". The son had an entry certificate marked "accompanying parents—settlement". On the faith of it, his passport was endorsed "indefinite leave to enter". But the father and mother did not settle here. After only being here five weeks they left on the 10th September, 1976 and returned to Kenya. They have lived there ever since. This makes me wonder whether their real object from the beginning was to bring their son over here for his education. They saw him started at school and then went straight back to Kenya. But no suggestion is made of bad faith or concealment. So I think we should regard the son as here for "settlement" and as "settled" here.
The Barnet Council refused to make any award to Nilish, He has, however, stayed here going to the university. No doubt his parents have paid his fees. He comes to the court and asks for an award. He says that he is entitled to it as of right.
Jitendra Shah is a typical case of a boy who comes on a student's visa. He is now 22, about the same age as Nilish Shah. He is a citizen of the United Kingdom and Colonies, and holds a British passport issued by a High Court in Nairobi. His parents live in Kenya. He was granted a student's entry and arrived on the 26th August, 1976. He had to satisfy the authorities that he could meet the cost of the course and his own maintenance. On this basis, he was granted leave to enter for 12 months, and this was continued on the same basis year after year. He stayed in England with his brother, who had a house here, and has maintained him. He went daily to a technical college from September 1976 to July 1979. He did not go back to Kenya for holidays, or at all. But his parents are still there. Then, in October, 1979 he started a course at the University of Newcastle to read for a degree. He claims to be entitled to an award as of right on the ground that he was "ordinarily resident" in the United Kingdom for the relevant three years from October 1976 to October 1979.
The Barnet Council have refused any award to Jitendra. He is at the university. No doubt his parents or his brother have paid his fees. But still he claims to be entitled to an award as of right.
Hamid Akbarali is now 24. He was born in Pakistan, but is a citizen of the United Kingdom and Colonies. He came here at the age of 18 in January 1975 on a student's visa, and has been granted yearly student's visas since then. He went daily to schools here from January 1975 to September 1978. He lived at King's Road, Chelsea, in a rented flat. In October 1978 he started at Chelsea College in London, studying for a B.Sc. degree. The relevant three years are from October 1975 to October 1978. During that time he returned to Pakistan twice on holiday, visiting his mother in 1977 and 1978. The Brent Council refused him an award.
Abu Abdullah is nearly 24. He was born in Bangladesh, and is a citizen of Bangladesh. He came to England on a student's visa in November 1975, which has been renewed every year. He lived here and went daily to the Shrewsbury Technical College. He went back there in July 1977 for a six-weeks' holiday to visit his mother. In September 1979 he started a course at the Southbank Polytechnic in London, where he is studying for a B.Sc. degree. The relevant three years are from September 1976 to September 1979. The Shrewsbury County Council have refused him an award.
Joanne Ablack is very different from all the others. She was born here in Hertfordshire in December 1959. She is a citizen of the United Kingdom and Colonies by birth and has the right of abode here. She is a patrial. Her father (who came from Trinidad) was then working for the B.B.C. Her first three years were here, but then her father joined the government service of Trinidad. She was with her father and mother in various countries until she was 13. Then her father was appointed a Counsellor of the High Commission of Trinidad and Tobago in London. He was here for six years from 1972 to 1978. She lived with the family at their London home from age 13 to age 20. Then in July 1978 her father went back to Trinidad, but she remained in England. She has done exceptionally well in her studies. In October 1978 she commenced a course at Leeds University for a degree. The relevant three years are from October 1975 to October 1978. She asked for an award but the London County Council have refused it on the ground that, when she lived with her parents here until July 1978, she was not "ordinarily resident" here: because her father was a diplomat, and had the privileges and immunities accorded to a diplomat.
Madjid Shabpar is very different again. He is now 31 and is a citizen of Iran. He came here in 1971 at the age of 21 on a student's visa. It was renewed annually during his studies. He has lived here ever since. In February 1975...
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