Arogundade, R (on the application of) v Secretary of State for Business, Innovation and Skills [2013] EWCA Civ 823

Case No C1/2012/2486

[2013] EWCA Civ 823

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM HIGH COURT, QBD, ADMINISTRATIVE COURT

ROBIN PURCHAS QC SITTING AS DEPUTY HIGH COURT JUDGE

CO77262011

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date Tuesday 16 th July 2013

Before

LORD JUSTICE LONGMORE

LORD JUSTICE McCOMBE

SIR STANLEY BURNTON

Between

R (TEMILOLA AROGUNDADE by her fiancé and litigation friend, Trevor André James)Claimant/

SECRETARY OF STATE FOR BUSINESS, INNOVATION AND SKILLSDefendant/

(Transcript of the Handed Down Judgment of

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Helen Mountfield QC and Sarah Hannett (instructed by John Ford Solicitors) for Claimant/Appellant

Colin Thomann (instructed by the Treasury Solicitor) for Defendant/Respondent

Judgment

Lord Justice McCombe:

[1]This is an appeal from an order, dated 7 September 2012, of Mr Robin Purchas QC (sitting as a Deputy Judge of the High Court) whereby he dismissed the application for judicial review, brought by the Appellant, Ms Temilola Arogundade, of a decision of the Respondent, the Secretary of State for Business, Innovation and Skills, of 2 June 2011. By that decision the Respondent decided that the Appellant did not meet the qualification criteria for assistance under the Education (Student Support) Regulations 2009. The material part of those criteria, which the Respondent decided was not met by the Appellant, was the requirement of the requisite period of “ordinary residence” in the United Kingdom. The problem was that for part of the relevant period the Appellant was here unlawfully and, therefore, in the Respondent’s view, could not be “ordinarily resident” in the UK within the meaning of the Regulations. I return to the precise regulatory provisions below. The appeal is brought with permission granted by Lord Justice Mummery on 22 March 2013.

(B) Facts

[2]The Appellant is a Nigerian national. She entered the UK from Nigeria on 3 August 2003 on a visitor’s visa which expired on 2 January 2004. Following the expiry of that visa she failed to obtain further leave to remain and failed to leave the country as required by law. She became what is now commonly known as an “overstayer”. As such, she was committing a criminal offence. In April 2006 she and other members of her family were subject to a tragic domestic accident, involving an escape of carbon monoxide gas from a faulty boiler. The accident caused the Appellant to suffer serious brain injury; it also caused death and injuries to other members of her family.

[3]While in hospital in June 2006 the Appellant instructed solicitors to apply on her behalf to the Home Department for leave to remain. The formal application was not in fact lodged until 19 September 2007, after the Appellant’s discharge from hospital. The application was refused by the Secretary of State on 30 July 2008, but an appeal to the Asylum and Immigration Tribunal was allowed on 4 February 2009, on human rights grounds, and discretionary leave to remain (“DLR”) in the UK was granted on 26 September 2009.

[4]In January 2010 the Appellant was accepted by the London Metropolitan University for study for a Bachelor of Arts degree, on a course beginning in February 2010. On 3 January 2010 she applied to the Student Loan Company (“SLC”), the body to whom the Respondent’s student finance functions have been delegated pursuant to the statutory provisions to which I will return, for the academic year 2009/2010. Her application was accepted. However, as the Deputy Judge recites, the University enrolled her as an overseas student, which led to judicial review proceedings against it and against the Secretary of State. The proceedings ended by a consent order of 1 September 2010 which included an order that the University should treat the Appellant as a person with leave to remain under the Education (Fees and Awards) (England) Regulations 2007. In the meantime, the Appellant had also been accepted for student assistance for the academic year 2010/2011. Her status as an overstayer came to light, however, and her student grant payments were cancelled. This decision was taken on the basis, explained in a letter from SLC of 15 September 2010, that she did not have the required period of ordinary residence prior to 1 January 2010, because for part of that period her presence in this country had been unlawful.

[5]The Appellant appealed against SLC’s decision, but her appeal was unsuccessful. The Respondent called in the decision on 11 May 2011 (no doubt under the statutory power to that effect in section 23(5) of the 1998 Act) and, by decision letters of 2 June and 1 July 2011, he confirmed the decision to revoke assistance. These Judicial Review proceedings were issued on 12 August 2011 and permission to apply was granted at an oral hearing on 7 March 2012. The application was heard on 4 September 2012 and was refused on 7 September 2012 by the order now the subject of this appeal.

(C) The Law

[6]The Regulations giving rise to the dispute in these proceedings are made under powers conferred on the Respondent by section 22 of the Teaching and Higher Education Act 1998. By section 22(2) the Regulations may determine whether a person is an “eligible student” to receive a grant and subject to what terms and conditions.

[7]Regulation 5(1) provides that, “An eligible student qualifies for support in connection with a designated course subject to and in accordance with these Regulations .” Pursuant to Regulations 2(3) and 5, Part 2 of Schedule 1 to the Regulations sets out eleven categories of “Eligibility” for assistance. The regulatory scheme of the eleven categories is to pick out a particular nationality, residence or immigration status, to require an applicant to be ordinarily resident in England on the first day of the first academic year of the course and to require in addition a period of “ordinary residence” in the UK and Islands or (in some cases in the European Economic Area, Switzerland or Turkey in connection with persons who are nationals of those countries) immediately prior to the first day of the first academic year of the course.

[8]Mr Thomann, counsel for the Respondent, submitted to the Deputy Judge, and to us, that the purpose of the ordinary residence criterion is to ensure that there is an “established connection” with the UK and Islands before the applicant qualifies for assistance from public funds. Ms Mountfield QC, who (with Ms Hannett) appeared for the Appellant, did not dissent from that proposition as such, but maintained that persons who fell within one or other of the designated immigration or nationality categories who had been habitually resident here in the relevant period still had such a connection even if, for part of the period, such residence was unlawful.

[9]The particular category of eligibility under the Regulations with which we are concerned is that relating to “persons with leave to enter or remain and their family members”. This category is dealt with in paragraph 5 of Schedule 1 which provides as follows:

“Persons with leave to enter or remain and their family members 5 (1) A person (a) with leave to enter or remain (b) who is ordinarily resident in England from the first day of the first academic year of the course; and (c) who has been ordinarily resident in the United Kingdom and Islands throughout the 3 year period preceding the first day of the first academic year of the course. (2) A person (a) who is the spouse of civil partner of a person with leave to enter or remain; (b) who was the spouse or civil partner of a person with leave to enter or remain on the date on which that person made the application for asylum; (c) who is ordinarily resident in England on the first day of the first academic year of the course; and (d) who has been ordinarily resident in the United Kingdom and Islands throughout the 3 year period preceding the first year of the first academic years of the course...”

Paragraph 5(3) deals with spouses, civil partners and children of such persons.

[10]A “person with leave to enter or remain” is defined in Regulation 2(1) as follows:

“Person with leave to enter or remain” means a person: (a) who has been informed by a person acting under the authority of the Secretary of State… that, although the person is considered not to qualify for recognition as a refugee, it is thought right to allow that person to enter or remain in the United Kingdom; (b) who has been granted leave to enter or remain accordingly; (c) whose period of leave to enter or remain has not expired and is being renewed and the period for which it was renewed has not expired and in respect of whose leave to enter or remain or an appeal is pending (within the meaning of section 104 of the Nationality, Immigration & Asylum Act 2002); and (d) who has been ordinarily resident in the United Kingdom and Islands throughout the period since the person was granted leave to enter or remain. ”

As the Judge explains, in paragraph 15 of his judgment, while the Appellant did not claim asylum here, and might therefore not appear to fall strictly within this category, there was doubt as to the defensibility of the asylum application requirement in the definition, which was reflected in the disposal by consent of the previous judicial review proceedings to which I have referred above. The Regulations have subsequently been altered. As the Judge records, nothing now turns on this point in the present proceedings.

[11]Three of the categories of eligibility relate to persons “settled in the United Kingdom” (see paragraphs 2(1) and (2) and 8 of Schedule 1). I refer to them because their relevance was discussed in argument before us and they are mentioned by the Judge. For my part, however, I find them to have little relevance to the problem before us. For the purpose of completeness, however, I will simply recite the definition of “settled” in paragraph 1(1) of the schedule which states that the term has the meaning given in section 33(2A) of the Immigration Act 1971 (as follows):

“….references to a person being settled in the United Kingdom are references to his being ordinarily resident there without being subject under the Immigration laws to any restriction on the period for which he may remain.”

Section 33(2) of the same Act provides:

“By section 33(2): “It is hereby declared that, except as otherwise provided in this Act, a person is not to be treated for the purposes of any provision of this Act as ordinarily resident in the United Kingdom or in any of the islands at a time when he is there in breach of the Immigration laws.” “It is hereby declared that, except as otherwise provided in this Act, a person is not to be treated for the purposes of any provision of this Act as ordinarily resident in the United Kingdom or in any of the islands at a time when he is there in breach of the Immigration laws.”

[12]Later categories of eligible persons, dealt with in paragraphs 6 to 12 of the Schedule, concern EC, EEA, Swiss and Turkish nationals. In respect of them there is also a required period of “ordinary residence”. This seems to me to be of some relevance for reasons to which I shall return.

[13]It is worth mentioning that, for the future, the problem that has arisen in the present case will be no more, because the regulatory intent has been clarified in the Education (Student Fees, Awards and Support) (Amendment) Regulations 2012 which amend paragraph 1 of the Regulations now current to insert: “(2A) For the purposes of this Schedule a person is not to be treated as ordinarily resident in a place unless that person lawfully resides in that place”.

[14]I turn to the cases cited to us.

[15]The story starts, and (as the Respondent would probably have it) ends with the case of R v London Borough of Barnet, ex p. Shah

[1983] 2 AC 309

in the House of Lords. The House was considering claims for student grants from five students. Each had entered the country with leave to pursue their studies. However, they had been refused grants under the legislation then in force because they were not considered to be “ordinarily resident” in the relevant local authority area. Section 1(1) of the Education Act 1962 provided:

“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 are (a) ordinarily resident in the area of that authority…”

The Regulations then provided for this exception:

“An authority shall not be under a duty to bestow awards in respect of a person’s attendance at a course (a) upon a person who has not been ordinarily resident throughout the three years preceding the first year of the course in question…”

[16]The students in that case were, of course, lawfully present here and so the question now before us did not arise. To summarise (very broadly) the argument of the local authorities, they were saying in that case that the term “ordinarily resident” in the 1962 legislation had to be construed to take into account where a student’s “real home” was, importing such issues as whether he intended to return to his country of origin after completion of his course.

[17]The House of Lords rejected that argument. At page 340E, Lord Scarman, with whom the rest of their Lordships agreed, said this:

“…..I unhesitatingly subscribe to the view that ‘ordinarily resident’ refers to a man’s abode in a particular place or country which he has adopted voluntarily and for several purposes as part of the regular order of his life for the time being, whether of short or of long duration. There is, of course, one important exception. If a man’s presence in a particular place or country is unlawful, e.g. in breach of the immigration laws, he cannot rely on his unlawful residence as constituting ordinary residence…there is indeed express provision to this effect in the Act of 1971 section 33(2). But even without this guidance I would conclude that it is wrong in principle that a man could rely on his own unlawful act to secure an advantage which could have been obtained if he had acted lawfully.”

At page 349C, Lord Scarman added:

“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 residency over the prescribed period-unless the residence is itself a breach of the terms of his leave, in which event his residence, being unlawful, could not be ordinary.”

[18]Clearly, as has subsequently been recognised, Lord Scarman’s statements that unlawful residence cannot be “ordinary” were obiter dicta, as the students in that case were all lawfully present in the country. However, the statements have been treated as authoritative ever since on the construction of the 1962 Act and on the construction of enactments following a similar structure in this field.

[19]In the present case, however, Ms Mountfield QC submits that the structure of the legislation has changed, now requiring a different result under the present Regulations.

[20]We were referred to Mark v Mark

[2006] 1 AC 98

where the House of Lords was concerned with the jurisdiction of the English courts in divorce under section 5(2) of the Domicile and Matrimonial Proceedings Act 1973 which provided:

“(a) The court shall have jurisdiction to entertain proceedings for divorce or judicial separation if (but only if) either of the parties to the marriage … was habitually resident in England and Wales throughout the period of one year ending with [the relevant] date…”

The petitioning wife was a long-term overstayer and the question was whether her residence could be “habitual” for these purposes, even though it was unlawful. The conclusion was that it could be. It was held that the word “lawfully” should not be implied into the section before the word “habitually”. Baroness Hale of Richmond who delivered the leading speech said, however, at paragraph [36]:

“…A person who was on the run after a deportation order or removal directions might find it hard to establish a habitual residence here. Such cases will be rare, compared with the large numbers of people who have remained here leading perfectly ordinary lives here for long periods, despite having no permission to do so. The husband’s first reaction, to admit that the wife was habitually resident here for the purpose of these proceedings, was obviously correct on the facts of this case. There will, however, be other statutory provisions, in particular those confirming entitlement to some benefit from the state, where it would be proper to imply a requirement that the residence be lawful.”

[21]The question arose again in a case involving entitlement to benefit in R (YA) v Secretary of State for Health

[2009] EWCA Civ 225

. The issue was whether a failed asylum seeker had a right to free medical treatment under the National Health Service Act 2006. Section 1(1) of the Act provides that:

“1. Secretary of State’s duty to promote health service- (1) The Secretary of State must continue the promotion in England of a comprehensive health service designed to secure improvement – (a) in the physical and mental health of the people of England, and (b) in the prevention, diagnosis and treatment of illness.”

Section 175(1) and (2) are in these terms: “Charges in respect of non-residents.-(1) Regulations may provide for the making and recovery in such manner as may be prescribed, of such charges as the Secretary of State may determine in respect of the services mentioned in subsection (2). (2) The services are such services as may be prescribed which are-(a) provided under this Act, and (b) provided in respect of such person not ordinarily resident in Great Britain as may be prescribed. Regulations made under the Act include the following: “2. Making and recovery of charges 1. Where an Authority or NHS trust or NHS foundation trust, or a Primary Care Trust provides an overseas visitor with services forming part of the health service, that Authority or NHS trust or NHS foundation trust, or a Primary Care Trust, having determined, by means of such enquiries as it is satisfied are reasonable in all the circumstances, including the state of health of that overseas visitor, that the case is not one in which these Regulations provide for no charge to be made, shall make and recover from the person liable under regulation 7 charges for the provision of those services…” “Overseas visitor” is defined as “a person not ordinarily resident in the United Kingdom”.

[22]Regulation 3, however, provides for some services to be provided free of charge to overseas visitors, for example treatment at a hospital accident and emergency department. There is the following further exemption in regulation 4:

“(1) No charge shall be made in respect of any services forming part of the health service provided for an overseas visitor, (a)….or (b) who has resided lawfully in the United Kingdom for a period of not less than one year immediately preceding the time when the services are provided unless this period of residence followed the grant of leave to enter the United Kingdom for the purpose of undergoing private medical treatment or a determination under regulation 6A; or (c) who has been accepted as a refugee in the Untied Kingdom, or who has made a formal application for leave to stay as a refugee in the United kingdom which has not yet been determined; or…”

[23]The first issue for decision in YA was whether a failed asylum seeker could be ordinarily resident in this country for the purposes of the 2006 Act. This court held that he could not. At paragraph [53] Ward LJ said this, “….The crucial aspect of the Ex p Shah test in our case is the ‘important exception, namely that if his presence in the country is unlawful, for example in breach of the immigration laws, he cannot rely on his unlawful residence as constituting ordinary residence’. Lord Scarman seems to me to give two reasons for this: first, the express provision to this effect in s 33(2) of the 1971 Act (see [27] above); and secondly, the principle of public policy that the propositus cannot profit from his unlawful act. As the students in Ex p Shah were not in breach of the immigration laws, these observations are obiter, but, nonetheless in my judgment, they command the highest respect.” After a reference to Mark v Mark (supra) Ward LJ continued in paragraph [55]:

“[55] Here the statute in need of construction is the 2006 NHS Act. As set out at [8] above, the Secretary of State’s duty prescribed by s 1 is to continue the promotion in England of a comprehensive health service designed to secure improvement in the health ‘of the people of England’. Note that it is the people of England, not the people in England, which suggests that the beneficiaries of this free health service are to be those with some link to England so as to be part and parcel of the fabric of the place. It connotes a legitimate connection with the country. The exclusion from this free service of non-residents and the right conferred by s 175 to charge such persons as are not ordinarily resident reinforces this notion of segregation between them and us. This strongly suggests that, as a rule, the benefits were not intended by Parliament to be bestowed on those who ought not to be here.”

The final passage that I would wish to quote from that case is to be found in paragraphs [61] and [62]:

“[61] The words are to be given their ordinary meaning. Asylum seekers are clearly resident here but is the manner in which they have acquired and enjoy that residence ordinary or extraordinary? Normal or abnormal? Were they detained, then no one would suggest they were ordinarily resident in the place of their detention. While they are here under sufferance pending investigation of their claim they are not, in my judgment, ordinarily resident here. Residence by grace and favour is not ordinary. The words must take some flavour from the purpose of the statute under consideration and, I have set out above, the purpose of the 2006 NHS Act is to provide a service for the people of England and that does not include those who ought not to be here. Failed asylum seekers ought not to be here. They should never have come here in the first place and after their claims have finally been dismissed they are only here until arrangements can be made to secure their return, even if, in some cases, like the unfortunate YA, that return may be a long way off. [62] Whereas exceptions affording free medical treatment are made under reg 4(1)(c) of the Charges to Overseas Visitors Regulations for those accepted as refugees and those whose claims for asylum have not yet been finally determined, no exception is made for failed asylum seekers. The public policy considerations which inform Lord Scarman’s exception militate against their being allowed to claim the benefits of a free national health service. The result may be most unfortunate for those in ill-health like YA for they may now be at the mercy of the hospitals’ discretion whether to treat them or not.”

[24]In R v Wandsworth LBC Ex P.O

[2000] 1 WLR 2539

, this court considered the rights of two overstayers to assistance under section 21 of the National Assistance Act 1948. The problem in that case was that section 21(1A) of the Act, inserted by section 116 of the Immigration and Asylum Act 1999, provided this:

“(1A) A person to whom section 115 of the Immigration and Asylum Act 1999 (exclusion from benefits) applies may not be provided with residential accommodation under subsection (1)(a) if his need for care and attention has arisen solely-(a) because he is destitute; or (b) because of the physical effects, or anticipated physical effects, of his being destitute.”

Simon Brown LJ (as he then was) summarised the effect of the legislation in these terms:

“The effect of all this is that (i) overstayers or illegal entrants, (ii) persons here with leave but with a condition of no recourse to public funds or following a maintenance undertaking, and (iii) those who are appealing against a decision to vary or refuse to vary limited leave (in each case whether or not asylum seekers), have no access to assistance under s 21 (1) of the 1948 Act if their need arises solely because of the physical effects of actual or anticipated destitution.”

The learned Lord Justice then summarised the conundrum arising, the rival contentions and his solution as follows:

“Section 21 (1A) of the 1948 Act necessarily predicates that there will now be immigrants with an urgent need for basic subsistence who are not to be provided for anywhere in the welfare system. Parliament has clearly so enacted and so it must be. The excluded cases are, of course, those where the need arises solely from destitution as defined. In what circumstances, then, is it to be said that destitution is the sole cause of need? The respondents contend that the approach should be this. First ask if the applicant has (a) somewhere to live (‘adequate accommodation’) and (b) means of support (the means to ‘meet his other essential living needs’). Assuming the answer is ‘no’ to each of those questions, ask next whether, but for those answers, he would need s 21 assistance. If not, he does not qualify. In other words, it is only if an applicant would still need assistance even without being destitute that he is entitled to it. The appellants contend for an altogether different approach. They submit that if an applicant’s need for care and attention is to any material extent made more acute by some circumstance other that the mere lack of accommodation and funds, then, despite being subject to immigration control, he qualifies for assistance. Other relevant circumstances include, of course, age, illness and disability, all of which are expressly mentioned in s 21 (1) of the 1948 Act itself. If, for example, an immigrant, as well as being destitute, is old, ill or disabled, he is likely to be yet more vulnerable and less well able to survive than if he were merely destitute. Given that both contended for constructions are tenable, I have not the least hesitation in preferring the latter. The word ‘solely’ in the new section is a strong one and its purpose there seems to me evident. Assistance under the 1948 Act is, it need hardly be emphasised, the last refuge for the destitute. If there are to be immigrant beggars on our streets, then let them at least not be old, ill or disabled.”

[25]Simon Brown LJ rejected the application of Lord Scarman’s dictum to the statute under consideration. In doing so, Simon Brown LJ said:

“So to would I reject Mr McCarthy’s submission that, because the applicant’s physical presence in their area is a statutory precondition of a local authority’s liability to make provision (see s 24(1) and (3) of the 1948 Act), we should apply Lord Scarman’s approach in Shah v BarnetLondon BC [1983] 1 All ER 226 at 235, [1983] 2 AC 309 at 343: ‘If a man’s presence in a particular place or country is unlawful, e.g. in breach of the immigration laws, he cannot rely on his unlawful residence as constituting ordinary residence…’ True it is that s 24 (1) of the 1948 Act refers to ‘the authority in whose area the person is ordinarily resident’. Subsection (3), however, requires no more that that the applicant be in the local authority’s area with an urgent need of residential accommodation. Overriding all these arguments is to my mind the consideration I have already stressed, that s 21(1) of the 1948 Act affords the very last possibility of relief, the final hope of keeping the needy off the streets. Not even illegality should to my mind bar an applicant who otherwise qualifies for support. For my part I would hold that the local authority has no business with the applicant’s immigration status save only for the purpose of learning why the care and attention ‘is not otherwise available to them’ as s 21(1) of the 1948 Act requires-and indeed (as Lord Denning MR envisaged in Ex p Streeting) for reporting such applications to the immigration authorities if they conclude that the Home Office is unaware of their unlawful presence here. In my judgment, however, it should be for the Home Office to decide (and ideally decide speedily) any claim for ELR and to ensure that those unlawfully here are promptly removed, rather than for local authorities to, so to speak, starve immigrants out of the country by withholding last-resort assistance from those who today will by definition be not merely destitute but for other reasons too in urgent need of care and assistance.”

Hale LJ (as she then was) in the course of a concurring judgment, from which we were referred to a number of passages, said this:

“….there is no general principle of legality excluding certain people from access to social services, as opposed to specific statutory provisions which may do so.”

[26]Finally, the Appellant relied upon the decision of the Supreme Court in Welwyn Hatfield BC v Secretary of State

[2011] 2 AC 264

. The case is a notorious one in which a builder had obtained planning permission to construct a hay barn on condition that it was used only for the storage of agricultural products. In fact, he constructed what to outward appearances was such a barn, but which was fitted out internally as a dwelling. After living in the barn/house for 4 years, the builder applied under section 191 of the Town and Country Planning Act 1990 for a certificate of lawfulness of existing use, relying upon section 171B(2) of that Act, on the basis that there was a four year time limit for enforcement action against a breach of planning control consisting in the change of use of any building to use as a single dwelling house.

[27]After a number of vicissitudes in the builder’s application and the ensuing litigation, the Supreme Court held that the barn/house had always been used as a house and that there was, therefore, no “change of use” within section 171B(2). Argument had been deployed that the builder should not be allowed to benefit from his dishonest and deceitful conduct in order to claim the certificate that he sought. In view of the decision upon the application of section 171B(2) on the facts of the case, the Supreme Court’s judgments on this additional point are, like Lord Scarman’s dicta in Shah, only obiter dicta, but obviously compelling of similar respect.

[28]In the course of his lead judgment, with which all of the Justices agreed, Lord Mance said (at paragraph [54]):

“54. Whether conduct will on public policy grounds disentitle a person from relying upon an apparently unqualified statutory provision must be considered in context and with regard to any nexus existing between the conduct and the statutory provision. Here, the four-year statutory periods must have been conceived as periods during which a planning authority would normally be expected to discover an unlawful building operation or use and after which the general interest in proper planning control should yield and the status quo prevail. Positive and deliberately misleading false statements by an owner successfully preventing discovery take the case outside that rationale.”

[29]From this Ms Mountfield and Ms Hannett submit in their written argument this:

“54. It follows that the question that the Judge ought to have addressed, but did not, is the real question , as explained above, as to whether the public policy imperative that a man should not benefit form his wrongdoing does require that lawfulness be implied as determined by the Judge. 55. The Appellant submits that, following Welwyn, it does not. Before disentitling a person to the benefit of a statutory provision on the grounds of their conduct (or adopting an implied interpretation of words of a statute which creates such a blanket disentitlement on the basis of a person’s conduct), a decision-maker must have regard to two matters: (i) Whether the conduct bears directly upon the statutory regime in question; and (ii) The nature and gravity of the conduct said to justify disentitling him as a mater of public policy. 56. In the instant case, the Judge failed to address either question.”

I return to these submissions below. (i) Whether the conduct bears directly upon the statutory regime in question; and (ii) The nature and gravity of the conduct said to justify disentitling him as a mater of public policy.

(D) The Judgment of the Deputy Judge

[30]The learned Deputy Judge held that “ordinary residence” could not be based upon a period or periods of unlawful residence. I intend no disrespect to his very careful judgment, if I merely summarise the salient conclusions that he reached. First, he found Lord Scarman’s dicta in Shah to be the starting point and found that those dicta were not undermined through the passage of time or the particular terminology of the statutes and regulations in question. Secondly, he found that the identification of particular lawful statuses, in immigration terms, did not diminish the ordinary residence requirements or the need for lawfulness of the residence for the prescribed period. Thirdly, he found that the various references to the Immigration Act reinforced the case for adopting an approach consistent with the requirements of that Act. Fourthly, the Judge thought it would be surprising as a matter of public policy if a person, physically resident during the relevant period but only by unlawfully evading detection by the authorities but without leave to remain, was able to rely on such a period of unlawful evasion as ordinary residence, even if his status had been regularised thereafter. Finally, the Judge concluded that these considerations were reinforced by the practical considerations of administering the grant system, if it was necessary to assess particular forms of illegality against humanitarian or other considerations.

(E) The arguments on the appeal

[31]In support of the single ground of appeal (namely, that the Judge was wrong in concluding that unlawful residence cannot be or count towards ordinary residence) , it is submitted on behalf of the Appellant that the Judge was wrong to conclude that the Regulations in question were indistinguishable from the statutory regime considered by the House of Lords in Shah. Secondly, it is argued that there was no mechanism in the Regulations for ensuring that the recipient of a student grant would have a sufficient degree of legitimate connection with the UK without the implication of a requirement of lawful habitual residence. These arguments were developed in paragraphs 37 to 49 of the skeleton argument and the oral submissions of Ms Mountfield. The Appellant also made the submission, arising out of the Welwyn Hatfield case, which I have set out above. It was submitted that Lord Scarman’s dicta in Shah should now be seen as too wide, having regard to the later dicta in Welwyn Hatfield (paragraph 50 of the skeleton argument).

[32]Mr Thomann for the Respondent founded his argument on Shah – a decision in precisely the same field as that which is in issue in this case, which has stood for 30 years and which can be taken to have been well understood by draftsmen of subsequent legislation as carrying the same meaning of “ordinary residence” throughout. Lord Scarman’s dicta, he submitted, “chimed” with the general rule of statutory construction to be found in Halsbury’s Laws of England 5th Edition Vol. 96(5) (2012) paragraph 1455 as follows:

“1455: Illegality:…Unless the contrary intention appears, an enactment by implication…imports the principle of legal policy embodied in the maxim nullus commodum capere potest de injuria sua propria (no one should be allowed to profit from his own wrong.” (5th edn, Vol 96(5) (2012)”

He relied upon a passage to similar effecting Bennion on Statutory Interpretation 5th Edn. (2008) section 264, pp. 792-5.

[33]Mr Thomann argued that, of the cases, Shah and YA were the closest in subject matter to those with which we are concerned and invoked the principles cited above from the judgment of Ward LJ.

[34]In so far as the Regulations had changed to require a specified current immigration status, or other national characteristic, that requirement, said Mr Thomann, was cumulative to, rather than in substitution for, a period of lawful ordinary residence. He submitted that the Judge’s conclusions as to the significance of the “ordinary residence” requirement for those with “settled status”, defined by reference to Section 33(2) and (2A) of the Immigration Act was correct.

[35]With regard to the Welwyn Hatfield case, Mr Thomann argued that this confirmed the basic principle of statutory construction on which he relied, as derived from the textbooks cited above. He submitted that that was a case concerning a statutory provision specifically conferring a lawful status upon a development carried out unlawfully. Still the Supreme Court would have been prepared to hold that it would not protect a person in the builder’s position who had engaged in flagrantly deceitful and dishonest conduct.

(F) Conclusions

[36]For my part, in spite of the very thorough and careful submissions of Ms Mountfield and Ms Hannett for the Appellant, I am quite satisfied that the Judge came to the right conclusion, essentially for the reasons given by him and for the reasons advanced by Mr Thomann before us.

[37]In my judgment, the dicta of Lord Scarman in Shah’s case explained clearly the rationale for implying a requirement of lawfulness into the residence upon which “ordinary residence” is based. There is no need to amplify what Lord Scarman said. It is that understanding of the words used in this area of legislation and that rationale which has been accepted as implicit in successive regulations. When the draftsman used those words in the 2009 Regulations he must, to my mind, be taken as having intended to import that settled understanding of the phrase “ordinarily resident”. There was no need, in my view, to make the express provision which, perhaps wisely in the light of the arguments in this case, was inserted into the Regulations by the 2012 Amendment Regulations.

[38]It is not necessary to traverse the case law any further to supplement our understanding of this phrase in this legislative context, in the absence of some indication of contrary intention.

[39]It is necessary to address, however, Ms Mountfield’s submission that the 2009 Regulations supply such an indication of contrary intention by prescribing, in the case of each of the eligible categories of person, a particular lawful immigration status, implying, so she submits, that the requirement to demonstrate lawful presence is spent by the propositus falling within that category.

[40]With respect, I do not accept that submission. I consider that the requirements are cumulative. Indeed, that is what they are on the face of the Regulations and, in using a well-hallowed phrase with an understood meaning, I see no reason to think that a double lawfulness requirement was not intended, viz. a lawful immigration status and a connection with this country demonstrated by a period of lawful ordinary residence.

[41]There is nothing illogical about such a cumulative requirement which is in tune with a consistent pattern in modern legislation to prevent persons unlawfully in this country from deriving benefit from the public purse. It is not surprising that the regulator would not wish a person newly holding for the first time a lawful status to benefit immediately from student finance by dint of unlawful presence for a period before such status was acquired.

[42]I accept Mr Thomann’s submissions with regard to the Welwyn Hatfield case. I do not think that that case assists significantly, if at all, in resolving the issue posed in the present case. The court was dealing with a statutory provision expressly providing for exoneration from unlawful conduct. The court held that the builder’s conduct did not in fact fall within the section at all, but that even if it had done the conduct was so egregious that he would not have been entitled to the benefit of it.

[43]The requirement in paragraph 5(1)(c) of Schedule 1 to these Regulations is very different and no question of exempting the Appellant from benefit, because of egregious unlawful conduct, arises. It may be for these, or similar, reasons that the Judge did not refer to the case in his judgment, although apparently it was he who brought it to counsel’s attention (see footnote 5 to the Appellant’s skeleton argument, page 14).

[44]I would add that I also find compelling the point arising under paragraphs 6, 9, 11 and 12 of Schedule 1, explored in argument in particular by my Lord, Sir Stanley Burnton. Those paragraphs deal with persons whose primary “immigration status” for the purpose of satisfying the eligibility requirements is as, e.g. EEA workers, EC nationals, children of Swiss nationals and children of Turkish workers. Each of these is required, in addition to having the particular status, to satisfy a condition of ordinary residence in a territory comprising the European Economic area, Switzerland or Turkey respectively. It would be surprising indeed if residence in one or more of these places which was unlawful would qualify as making the applicant “ordinarily resident” there for the purposes of the relevant paragraphs.

[45]For these reasons, I consider that the Judge was correct to dismiss the application for judicial review and, for my part, I would dismiss this appeal.

Sir Stanley Burnton:

[46]I agree, and have very little to add.

[47]At [44] above, Lord Justice McCombe refers to paragraphs of Schedule 1 that confer rights on EEA migrant workers and others (paragraph 6), EC nationals (paragraphs 9 and 10), Swiss nationals (paragraph 11) and children of Turkish workers (paragraph 12). In each case there is a requirement of ordinary residence. So far as the EC nationals are concerned, I have no doubt that these provisions were included as a result of the judgment of the Court of Justice of the European Communities in R (Bidar) v Ealing London Borough Council

[2005] QB 812

. The Court held “assistance, whether in the form of subsidised loans or of grants, provided to students lawfully resident in the host member state to cover their maintenance costs, falls within the scope of application of the Treaty for the purposes of the prohibition of discrimination laid down in the first paragraph of article 12 EC”: paragraph 48 of the judgment. The requirement of lawful residence to which the Court of Justice referred is included in the paragraphs of Schedule 1 to which I have referred by the requirement of “ordinary residence”. In my judgment, this confirms that those words import the requirement of lawful residence. Lord Justice Longmore:

[48]I agree with both judgments.