Shah
[1993] 2 AC 309. This case was concerned with the meaning of the phrase “ordinary residence” in the context of eligibility for a local authority educational award. Lord Scarman made the point at page 340 that ordinary residence is not a term of art in English law. He referred to different contexts in which it was employed including income tax, family law, and various twentieth century statutes including the one with which that appeal was concerned. In two tax cases in 1928 the House of Lords had considered that the words “ordinary residence” involved seeking the natural ordinary meaning of the words. Lord Scarman agreed with what had been said by Lord Denning MR in the Court of Appeal that the natural and ordinary meaning of the words “ordinary residence” meant “that the person must be habitually and normally resident here, apart from temporary or occasional absences of long or short duration”. He also said, at page 343: “Unless, therefore, it can be shown that the statutory framework or the legal context in which the words are used requires a different meaning, I unhesitatingly subscribe to the view that “ordinarily resident” refers to a man’s abode in the particular place or country which he has adopted voluntarily and for settled purposes as part of the regular order of his life for the time being, whether of short or long duration.” Mr Buley accepted of course that the instant case was not strictly concerned with “ordinary” residence, but he argued that the presence of that additional qualification in that case did not alter the relevance of the approach adopted by the House of Lords in Shah to the present case. He argued that the literal and legal meaning of residence was not such as to require it to be equated with continual presence. 12. Mr Buley argued further that the Rule, though it said that a period should not be considered to have been broken where the applicant had been absent from the United Kingdom for a period of 180 days or less, did not mean and did not say, that a period would be considered to have been broken where there had been an absence for more than 180 days. To interpret it in that way would cut across the definition of residence being defined as Mr Buley had argued it should be. There was no frustration of the purposes of the Rules. An example might be taken of a pilot who would be out of the country regularly through work and it would be very odd if such a person would automatically be defeated under the Rules. It could not be said that a period of absence of over 180 days made compliance with the Rule impossible. That could have been done if drafted clearly enough but that was not the case. 13. Mr Buley accepted that it was difficult to see how a person who through work was out of the country for the entire five year period could satisfy the requirements of the Rule despite being based in the United Kingdom for employment and tax and domicile purposes. It was a matter of an exercise of judgment as to where the line was drawn, as could be seen from the decision in BD . The question was whether the person maintained their home in the United Kingdom. A person would not be ordinarily resident just because they had leave to remain and had their home in the United Kingdom. They had to have a base and use it as their home. It was the kind of exercise of judgment the authorities had to make all the time. The fact that the current guidance differed from what was argued by Mr Buley was by the way. The Rule could not be construed by reference to the guidance. 14. Mr Buley argued that if his view on construction was correct then the respondent had erred in law since she had not considered the circumstances of the case in the way which had been done by the Upper Tribunal in BD , which would entail taking a view on the evidence as a whole as to whether the applicant was resident or not. That had not been done and hence there was an error of law. All the respondent had done was to take the fact that she was absent for more than 180 days during each of the two first periods as being decisive.