Visa Eligibility

Hiya

Asked Service Desk about this three months ago, you can see the discussion here:

Further education and training providers community - Graduate Visa

but basically time on a Tier 4 just doesn't count towards Ordinarily Resident (don't shoot the messenger ;))

Thanks for the info Steve.

Hi Steve Hewitt I found this regarding the "ordinarily resident" assessing ordinary residence (publishing.service.gov.uk)

It states "The term ordinary residence is not defined in the immigration or nationality acts and 
has not been defined in any Act of Parliament. The leading case in this area is R v 
Barnet LBC ex parte Shah [1983] 1 All ER 226. The House of Lords found that the 
concept of ordinary residence implied:
• ordinary residence is established if there is a regular habitual mode of life in a 
particular place for the time being, whether of short or long duration, the 
continuity of which has persisted apart from temporary or occasional absences,
residence must be both:
o voluntary 
o adopted for a settled purpose
• a person can be ordinarily resident in more than one country at the same time, 
distinguishing it from domiciled
• ordinary residence is proven more by objective evidence than evidence of an 
individual’s state of mind at a point in time"

"Residence in a territory for most of the purposes for which people can enter is 
capable of constituting ordinary residence. In particular, lawful residence in the 
following categories is likely to constitute ordinary residence:
• entry for settlement
• employment
• business
• self-employment
• study
• retired persons
• working holidaymakers"

"A person may become ordinarily resident on arrival, and probably will if entering the 
territory for settlement or one of the purposes leading to settlement. It is possible for 
a person initially entering for a temporary purpose not constituting ordinary 
residence, to become ordinarily resident through a change in the quality and purpose 
of the residence. Where it is not possible to establish the date on which a person 
became ordinarily resident, it may be reasonable to treat them as having been 
ordinarily resident from the date of their arrival"

Based on this assessment a learner on a tier 4 visa would qualify as ordinarily resident in addition to those who moved to the graduate visa. 

I believe this will help a lot of Tier 4/Graduate visa/non uk-nationals on different types of visas who want to enter apprenticeships after 3 years in the UK. 

Would love to know your thoughts.

My main thought is I'm going to forward this straight to the people who have been looking at my query SINCE AUGUST (if you click through to the other thread, you'll see someone else was told the opposite of what I was told shortly after, so I asked for a final judgement. It has not yet arrived).

I never disagreed that time on a Tier 4 should count, was merely relaying what I'd been told by the Service Desk.

OK, this back from them just now, not good news...:

We apologise for the delay in providing our response to this query. The delay has been due to your query being investigated by our Funding Rules team and policy professionals to ensure we are providing accurate advice. 
 
The teams have been in touch today to advise that if a learner is in the UK wholly or mainly for the purpose of receiving full-time education then that time in the UK does not count towards the ordinary residence period. This may include time spent on a student visa. However, there may also be other reasons for a person's residence in the UK which affects their primary purpose. It is for the provider to establish, following consideration of all the circumstances, whether the learner would still have been resident in the UK, even if they had not been in full-time education.

Which sounds like a "no" to me because, if they're on Tier 4, their primary purpose must be study, mustn't it?

HOWEVER, I've now read through the full R vs Barnet judgement linked above and I think they're wrong (I Am Not A Lawyer)... Scarman says *pretty explicitly* that reasons for being here effectively don't matter, just being here:

My Lords, it is, therefore, my view that L.E.A.s, 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 L.E.A. 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 intentions 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 itself a breach of the terms of his leave, in which event his residence, being unlawful, could not be ordinary.

Bah, final word on this:

You query the lawfulness of the condition in our eligibility criteria which excludes residency for educational purposes from the qualifying period of three years ordinary residence. You cite the case of Shah v Barnet LBC [1983] 2 A.C. 309 to support your argument.
 
Shah is not a relevant authority. The context of that case is different from the facts and circumstances of the present matter. The dispute in Shah centred on the meaning of the words, "ordinary residence" for the purposes of the Education Acts. What the House of Lords determined was that the words should bear their natural and ordinary meaning in that particular legal context of those statutory provisions.
 
The Apprenticeship funding rules are not within the scope of the Education Acts, however. The legal basis of the funding rules instead are the statutory powers of the Secretary of State to provide funding for apprenticeships and further to make that funding subject to conditions ( see sections 100 and 101 of the Apprenticeships, Skills, Children and Learning Act 2009). The eligibility criteria are such conditions and being such they are a legitimate exercise of those powers. The decision in Shah, confined to the particular facts of that case, has no bearing on the lawfulness of a decision to exercise those statutory powers in the way that has been done in the funding rules.

Boooooo

TIL the Technical Support Team is not their final form. Sounds like you had them seek the advice of counsel on this one. 

I think they got upset at me quoting Scarman at them ;)

The annoying thing is the doc Stephanie links to above suggests Shah can be used in other circs, they've just chosen not to for this...