Education - Grant for study - Eligibility
R (on the application of Arogundade) v Secretary of State for Business, Innovation and Skills: QBD (Admin) (Mr Robin Purchas QC (sitting as a deputy High Court judge)): 7 September 2012
The claimant, a national of Nigeria, entered the UK on 3 August 2003 on a visitor’s visa, which expired on 2 January 2004. She subsequently overstayed that visa without leave to remain under the Immigration Act 1971.
In 2006, the claimant suffered serious brain injury caused by carbon monoxide gas poisoning from a faulty boiler in her home. In September 2007, she applied for leave to remain. That application was refused but an appeal to the Asylum and Immigration Tribunal succeeded on human rights grounds and the claimant was granted discretionary leave to remain in 2009.
The claimant was accepted for a BA degree at a London university and she was granted student support for the academic year 2009/10. However, the university enrolled the claimant as an overseas student. That led to judicial review proceedings, which resulted in a consent order that the university should treat the claimant as ‘a person with leave to remain’ under the Education (Fees and Awards) (England) Regulations 2007.
However, the claimant’s past status as an overstayer came to light, which led to the cancellation of her student grant payments for the academic year 2010/11. The reason stated for cancellation was that the claimant did not have the required three years ‘ordinary residence’ at the relevant time. The claimant’s appeal against that decision was unsuccessful. The secretary of state confirmed the decision, withdrawing the student grant from the claimant on the ground that unlawful residence could not constitute ordinary residence for the purposes of the three years ordinary residence qualification under paragraph 5(1)(c) of schedule 1 to the Education (Student Support) Regulations 2009 (the 2009 regulations). The claimant sought judicial review of the decision of the secretary of state.
The question for determination was whether residence in the UK, which was unlawful under the 1971 act, could qualify as ordinary residence for the purpose of paragraph 5(1)(c) of schedule 1 to the 2009 regulations. Consideration was given to the opinion of Lord Scarman in Shah v Barnet London Borough Council  1 All ER 226.
The court ruled: Ordinary residence for the purposes of paragraph 5(1)(c) of schedule 1 to the 2009 regulations required lawful residence and would not include residence in breach of the immigration rules (see  of the judgment). There was nothing in the authorities or in the relevant regulations or subsequent legislative changes which would undermine or displace the approach clearly and authoritatively set out by Lord Scarman in Shah (see  of the judgment).
Applying that interpretation to the instant case, the claim failed (see  of the judgment). Shah v Barnet London Borough Council  1 All ER 226 applied.
Sarah Hannett (instructed by John Ford Solicitors) for the claimant; Colin Thomann (instructed by the Treasury Solicitor) for the secretary of state.