The Respondent's Submissions
17. In his submissions Mr Wagner argued that with regard to the construction ground there was a clear and ordinary meaning apparent from the face of the Rules. There was no need to make an equation with the term “ordinary residence” but it was simply necessary to read the Rules. The decision in BD showed what the old Rules said and how they had been dealt with in that situation. There was no guidance or further definition in that case as opposed to the instant case. As there was no guidance concerning the meaning of the Rule the Tribunal had to make its own interpretation which it did so, perfectly reasonably, at paragraph 10. Mr Wagner would have had no argument if the Rule had not been changed but the scheme of the Rule had changed. There had been no definition before but there was now a definition at paragraph 245CD(c) and paragraph 245AAA. The latter required an unbroken period with valid leave. It was sensible for residence to be given its ordinary meaning. The provision of an unbroken period with valid leave was not in the original Rule but it was clear, and then there was a definition of what was meant by “broken” and “unbroken”. If the Rule had stopped there then it would not necessarily take matters beyond what was decided in BD , but it went on to provide at subparagraph (a)(i) the provision about when 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 in any of the five consecutive twelve month periods. This was a very specific provision, and was to do with presence. For all the period to remain unbroken a person could not have been absent from the United Kingdom for more than 180 days. This tied that definition very specifically to a person’s presence in the United Kingdom and a cut-off point was provided. 180 days was the critical cut-off. If the period was greater than that then the person did not succeed. 18. Mr Wagner argued that Mr Buley’s attempt to define the term went against the ordinary language. It was a strained interpretation to say that if a person were absent for 180 days or less then the period would not have been broken whereas if it was more than 180 days then all the factors set out in BD would have to be considered. This imported an entirely different way of looking at the question of an unbroken period of residence as meaning there was no mention of that anywhere in the scheme. If that had been Parliament’s intention it would have said so. It was very specific as to what could not be considered a broken period and that could not be clearer. It was defined as presence in the United Kingdom. There was no conflict with what had been decided in BD . It would have been absurd if the Rule had been given a literal meaning there, and that was a reasonable conclusion. With regard to the example of the pilot there would always be hard cases where there was a clear Rule and that could be such a case. This was why the policy retained a discretion outside the Rules and it could be that the pilot would come within that. The definition was clear and it was not necessary to go into the reasoning behind it. 19. As regards the argument by analogy from Shah it was argued that that was totally irrelevant mainly because the wording was different. That case was concerned with “three years’ ordinary residence”. It was clear that “ordinary residence” was not a term of art so it could mean different things in different contexts. The word “ordinary” was really the key. “Residence” could mean a variety of things. “Ordinary” had some sort of temporal connotation and the position would be affected by absences. It was key to note the first two lines in the paragraph quoted at page 343 referring to cases where it could be shown that the statutory framework or the legal context in which the words were used required a different meaning. That was the case here, even if one were just looking at the term “residence”. It was clear what was meant by “broken” and hence it was the case that “unbroken” was clear also. It followed very obviously from paragraph 245AAA(a)(i) that it was not necessary for it to be spelt out. If the wider meaning of connection to the United Kingdom had it been intended then it would have said so. 20. In sum therefore BD was irrelevant, and there was a definition of the Rules now and a reference only to broken and unbroken periods of residence but that in effect defined continuous residence as presence in the United Kingdom. 21. With regard to ground 1, this was governed by what had been decided by the House of Lords in