R v Barnet London Borough Council, ex parte Nilish Shah

JurisdictionEngland & Wales
CourtHouse of Lords
JudgeLord Fraser of Tullybelton,Lord Scarman,Lord Lowry,Lord Roskill,Lord Brandon of Oakbrook
Judgment Date16 Dec 1982
Judgment citation (vLex)[1982] UKHL J1216-1

[1982] UKHL J1216-1

House of Lords

Lord Fraser of Tullybelton

Lord Scarman

Lord Lowry

Lord Roskill

Lord Brandon of Oakbrook

Akbarali (A.P.)
(Appellant)
and
Brent London Borough Council
(Respondents)
Abdullah (A.P.)
(Appellant)
and
Shropshire County Council
(Respondents)
Shabpar
(Appellant)
and
London Borough of Barnet
(Respondents)
Shah (A.P.)
(Appellant)
and
London Borough of Barnet
(Respondents)
London Borough of Barnet
(Appellant)
and
Nilish Shah (A.P.)
(Respondent)
[Conjoined Appeals]
Lord Fraser of Tullybelton

My Lords,

1

I have had the advantage of reading in draft the speech of my noble and learned friend, Lord Scarman. I agree with it and, for the reasons given by him, I would allow the appeals in all cases except London Borough of Barnet against Nilish Shah.

Lord Scarman

My Lords,

2

The detailed facts in these five appeals are succinctly stated in the judgments of the Court of Appeal, and need not be repeated. In four of the appeals an immigrant student is the appellant and a Local Education Authority (L.E.A.) the respondent. In one, Nilish Shah's case, the roles are reversed. In each case the student had entered the United Kingdom some three years ago, or earlier, for the purpose of seeking an educational qualification by pursuing a course of study at some school or college, paying his own fees and relying upon family resources for his maintenance. After obtaining his educational qualification, he applied to a L.E.A. for an award in respect of a first-degree, or comparable, course of further education. In each case the application was refused. Each student has applied for judicial review on the ground that the L.E.A. had erred in law in reaching the conclusion that the student had failed to prove that he had been ordinarily resident in the United Kingdom throughout the three years preceding the first year of the course in question. It is common ground that to secure a mandatory award, i.e. one which it was the duty of the L.E.A. to bestow, the ordinary residence condition had to be met by these students. The students say that the L.E.A.s misdirected themselves in law in that they applied the wrong test in respect of ordinary residence. One student, Shabpar, has a further point. He alone has pursued to this House the case that the L.E.A., having refused him a mandatory award, failed or refused to consider his alternative application for a discretionary award.

3

All five students are immigrants. None of them has the right of abode in the United Kingdom. None of them is a national of a member state of the European Communities. All needed leave to enter and to remain here: s. 3(1) Immigration Act 1971. Four of them entered as students with limited leave; one, Nilish Shah, entered with his parents for settlement and obtained indefinite leave. The limited leave included a condition that on completion of his studies the student would depart from the country—though, of course it would be open to him to apply for an extension, in which event the Secretary of State could grant a limited or unlimited extension or refuse the application.

4

Two questions of law are common to all five appeals. The first, and more difficult, question is as to the meaning to be given in the context of the Education Acts to the words "ordinarily resident in the United Kingdom". The second question arises only if the first is answered in favour of the students and relates to the judicial remedy appropriate to these cases.

5

The cases of Nilish Shah and Jitendra Shah came before a Divisional Court. Ormrod L.J. delivered the considered judgment of the court, allowing Nilish's application for judicial review but dismissing Jitendra's. The distinguishing fact was that Nilish entered for settlement, whereas Jitendra was admitted for the purpose of study and given limited leave only. In the other cases, all of them cases of limited leave, a Divisional Court refused judicial review. The Court of Appeal, after one hearing covering all five cases (and one other), upheld the Divisional Court's decision in favour of Nilish but dismissed the appeals of the other four applicants. The Court of Appeal granted leave to appeal to your Lordships' House.

6

The Education Act 1944 s. 81 required the Secretary of State to make regulations empowering L.E.A.s "for the purpose of enabling pupils to take advantage without hardship to themselves or their parents of any educational facilities available to them …. to grant scholarships …. and other allowances in respect of pupils over compulsory school age, including pupils undergoing training as teachers." The section set no limit, imposed no restrictions by way of nationality, origin, or sex. It was an integral part of an enlightened statute, the policy of which has governed educational provision ever since.

7

By 1962 immigration from the Commonwealth and elsewhere had become a factor in the life of British society: witness the Commonwealth Immigrants Act 1962.

8

In the same year and during the same session Parliament enacted the Education Act 1962.

9

It is inconceivable, and I refuse, therefore, to infer, that Parliament, in enacting the education statute, could have been unaware of the restrictions then being imposed for the first time on Commonwealth immigrants. The Act was amongst other matters, "to make further provision with respect to awards and grants by local education authorities."

10

Section 1 was as follows:

"1. — (1) It shall be the duty of every local education authority, subject to and in accordance with regulations made under this Act, to bestow awards on persons who—

  • ( a) are ordinarily resident in the area of the authority, and

  • ( b) possess the requisite educational qualifications,

in respect of their attendance at courses to which this section applies.

(2) This section shall apply to such full-time courses at universities, colleges or other institutions in Great Britain and Northern Ireland as may for the time being be designated by or under the regulations for the purposes of this section as being first degree courses or comparable to first degree courses; and for the purposes of the preceding subsection the requisite educational qualifications, in relation to any course, shall be such as may be prescribed by or under the regulations, either generally or with respect to that course or a class of courses which includes that course.

(3) Regulations made for the purposes of subsection (1) of this section shall prescribe the conditions and exceptions subject to which the duty imposed by that subsection is to have effect, and the descriptions of payments to be made in pursuance of awards bestowed thereunder, and, with respect to each description of payments, shall—

  • ( a) prescribe the circumstances in which it is to be payable, and the amount of the payment or the scales or other provisions by reference to which that amount is to be determined, and

  • ( b) indicate whether the payment is to be obligatory or is to be at the discretion of the authority bestowing the award;

and, subject to the exercise of any power conferred by the regulations to suspend or terminate awards, a local education authority by whom an award has been bestowed under subsection (1) of this section shall be under a duty, or shall have power, as the case may be, to make such payments as they are required or authorised to make in accordance with the regulations.

(4) Without prejudice to the duty imposed by subsection (1) of this section, a local education authority shall have power to bestow an award on any person in respect of his attendance at a course to which this section applies, where he is not eligible for an award under subsection (1) of this section in respect of that course.

(5) The provisions of subsection (3) of this section and of the regulations made in accordance with that subsection (except so much of those provisions as relates to the conditions and exceptions subject to which the duty imposed by subsection (1) of this section is to have effect) shall apply in relation to awards under the last preceding subsection as they apply in relation to awards under subsection (1) of this section.

(6) Notwithstanding anything in subsection (1) of this section, that subsection shall not have effect so as to require a local education authority—

  • ( a) to bestow awards in respect of any period beginning before the first day of September, nineteen hundred and sixty-two, or

  • ( b) to bestow an award on a person in respect of any course, if a scholarship, exhibition, bursary or other allowance granted to him in respect of that course is in force on that day by virtue of regulations made under paragraph ( c) of section eighty-one of the Act of 1944.

(7) The reference in subsection (1) of this section to persons who are ordinarily resident in the area of a local education authority is a reference to persons who, in accordance with the provisions of the First Schedule to this Act, are to be treated as being so resident."

11

The section imposed a duty upon every local education authority to bestow awards ("mandatory", as they are called) upon persons ordinarily resident in its area who possessed the requisite educational qualifications. It contained no restriction upon the scope of the duty other than ordinary residence in the area of the L.E.A. and the educational qualification. There was no hint of nationality, country of origin, or domicile as a condition of eligibility: but the duty was to be subject to and in accordance with regulations made under the Act.

12

Such regulations were, amongst other matters, to prescribe the conditions and exceptions subject to which the duty was to have effect. Regulations have been made from time to time; and they have always included an exception based on a requirement of three years' ordinary residence in the United Kingdom as a condition of eligibility for a...

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