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JGM
JGM, Solicitor
Category: Scots Law
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Experience:  30 years as a practising solicitor.
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Need help with Daughter's application student fees......Scotland,

Resolved Question:

Need help with Daughter's application for help student fees......Scotland, Ordinarily Resident. I believe there is a case v Shay....can you point me in the correct direction for assistance
Submitted: 2 years ago.
Category: Scots Law
Expert:  JGM replied 2 years ago.
Thank you for your question.
I will help you with this. What are your specific questions?
Customer: replied 2 years ago.

What is the definition of Ordinarily Resident in respect to support from the Student Awards Agency for Scotland?

I believe it is possible to be Ordinarily Resident in more than one country. I work in Saudi Arabia but have maintained a home in Kilmarnock to which the family (inc Daughter) return to for at least 2.5 months a year.

Expert:  JGM replied 2 years ago.
You have to show not only that you have been ordinarily resident in a particular area, but also that your main reason for being there was not to receive full-time education.
You can check this for yourself by asking where you would be ordinarily resident, if you were not in full-time education. If the answer to this is in the same area, full-time education is not your main reason for being there. For example, if you are an EU national and your only reason for being in the UK is to receive full-time education, but when you are not in education in the UK you live in Belgium, you can show that you are not ordinarily resident in the European Economic Area (part of the relevant residence area for EU nationals) mainly for full-time education.
If the answer to this question is that you would be somewhere outside the EU, the main purpose for your residence in the EU is to receive full-time education. However, you can still be entitled to home fees or a student loan if one of your family members, usually a parent, spouse or civil partner, is temporarily employed outside the residence area.
So you have to ask whether your are out of the UK on a temporary basis or not.
Here is a case which is relevant to you:
R v Lancashire County Council, ex parte Huddleston 1986 2 All ER 941
In this case the Court of Appeal had to decide whether a student (Lynne Huddleston), who had been living in Hong Kong for 13 years because her father was employed there, should have been refused an award.
The Huddlestons were British Citizens and had moved from Lancashire to Hong Kong when Mr Huddleston obtained a job there. The family always intended to return to Lancashire where they owned a house but from 1970 when Lynne was five until 1983 she lived in Hong Kong. In 1983, Lynne returned to the UK and applied to Lancashire CC for an award. It was refused on the ground that Lynne had not been ordinarily resident for the relevant three years.
The court upheld the Lancashire CC’s decision, holding that it was not unreasonable for the Council to decide that Mr Huddleston’s employment abroad by a foreign company for 13 years ceased to be merely temporary and therefore Lynne could not be treated as ordinarily resident in the UK for the purposes of these regulations.
Perhaps unfortunately in this case, the court did not consider whether Lynne might have been ordinarily resident in both Hong Kong and the UK, even though she spent six weeks of every year in the family home in Lancashire, under the annual home leave to which her father was entitled under his contract of employment. This is in contrast to the case of Britto, where a family home, the accepted family intention to settle in the UK and regular visits (of a similar length to those in Huddleston) led the court to conclude that they were ordinarily resident in the UK.
And another
Jain
R v Nottinghamshire County Council ex parte Jain (QBD) CO/874/88
A student, born in India in 1968, came to England on 21 July 1972. She and her parents lived in Nottingham between 1972 and 1977. In September 1977, her father took up employment as a teacher in Zambia as part of a British aid programme. The initial contract was for three years, but he had a second contract for three years, then a final contract for two and a half years, and returned to England in 1986. The family returned to England between contracts for three months in 1980 and in 1983.
The student lived with her family in Zambia between 1977 and 1980 but stayed in the UK from 1980 onwards to attend boarding school. She spent her holidays in Zambia every year except in 1983 when the family was in England. Her parents' home was rented out until the family returned to live in it in 1986.
In 1987 the student applied for a grant for university and was refused because she was considered to have been in the UK wholly or mainly to receive full-time education. There is an exception to this requirement if a family member is or has been temporarily employed outside the UK, so the High Court had to consider whether the student's father was temporarily employed outside the UK.
The task of the court was to consider if the County Council had acted unreasonably so it did not make a final decision in the matter but sent it back to be reconsidered. It did, however, provide some guidelines.
"The applicant's father took employment in Zambia in 1977 on a limited contract for three years. The whole nature of the contract linked it with the United Kingdom in that, as already indicated, the arrangement was under the auspices of the Overseas Development Administration and involved a number of British Government commitments to the applicant's father. Whatever may have been the case later when the aggregate of renewed contracts had absented the applicant's father from the UK for eight years, at the time of the first contract, it was at least highly arguable that the employment should be considered temporary. Indeed, it is difficult on the evidence to see how a single term overseas contract, with the employee preserving all property and personal links with England, could reasonably be regarded as anything other than temporary."
Here are extracts from the case of Shah v London Borough of Barnet 1983 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."
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