Migrants and benefits an advisers guide

Transcription

1 Migrants and benefits an advisers guide Law Centre (NI) for Belfast Integration and Participation Project

2 Page 2 Migrants and benefits Migrants and Benefits - An Adviser s Guide Patricia Carty Published by Law Centre (NI) on behalf of Belfast Integration and Participation Project February 2014 ISBN Law Centre (NI) and Belfast Integration and Participation Project 2014 All rights reserved. No part of this publication may be reproduced, stored on any retrieval system or transmitted in any form by any means, including photocopying and recording, without the prior written permission of Law Centre (NI). This document contains complex legal concepts and is targeted at advisers. Anyone seeking further advice and information may contact the Law Centre s advice line: or Monday to Friday, 9.30am to 1pm Disclaimer: Although every effort is made to ensure the information in Law Centre publications is accurate, we cannot be held liable for any inaccuracies and their consequences. The information should not be treated as a complete and authoritative statement of the law. Law Centre (NI) only operates within Northern Ireland and the information in this document is only relevant to Northern Ireland law. When reading Law Centre documents, please pay attention to their date of publication as legislation may have changed since they were published.

3 Migrants and benefits Page 3 Contents General information about advising migrants Office of Immigration Services Commissioner Who can give immigration advice Checking a person s immigration status Different categories of migrants Technical words and phrases 1.0 Non EEA nationals and benefits 1.1 Immigration status 1.2 Person subject to immigration control Public funds 1.3 Employment related benefits that can be claimed by a person subject to immigration control 1.4 Means tested benefits: Income Support, Income-based Jobseeker s Allowance, Income-related Employment and Support Allowance, Pension Credit, Housing Benefit, Universal Credit - person subject to immigration control 1.5 Non-means tested benefits: Attendance Allowance, Carer s Allowance, Child Benefit, Disability Living Allowance, Employment and Support Allowance in Youth, Personal Independence Payment, Severe Disablement Allowance - person subject to immigration control 1.6 Tax credits - person subject to immigration control 1.7 Families where some members are subject to immigration control and some are not Income Support, Income-based Jobseeker s Allowance, Income-related Employment and Support Allowance

4 Page 4 Migrants and benefits State Pension Credit Housing Benefit Child Benefit Disability Living Allowance Tax credits Universal Credit 1.8 Refugees and benefits Refugees and Income Support Refugees and tax credits, Child Benefit, Guardian s Allowance Fast track procedure for tax credit claims 2.0 EEA nationals and benefits 2.1 The habitual residence and right to reside test Exempt groups Habitual residence the factual test Factors relevant to establishing the habitual residence Resuming habitual residence EU law and resuming habitual residence Benefit entitlement where a person fails the habitual residence test Couples where one person is habitually resident How to challenge a habitual residence decision Right to reside Transitional protection for claims pre-dating 30 April Excluded rights of residence EU law rights of residence What to do if a person is found not to be a person with a right to reside

5 Migrants and benefits Page The ordinary residence and right to reside test - Child Benefit and Child Tax Credit Initial three month right of residence Child Benefit and Child Tax Credit 2.3 Ordinary residence and past presence rules Attendance Allowance, Disability Living Allowance and Carer s Allowance 2.4 Contribution-based benefits and employment related benefits and residence 3.0 EU Regulation on co-ordination of social security systems 3.1 Introduction 3.2 Who is covered by Regulation 883/2004/ Personal scope 3.3 What is covered by Regulation 883/2004/ Material scope 3.4 Social security benefits under EC Regulation 883/ Competent state rules 3.6 Equal treatment 3.7 Aggregation 3.8 Apportionment 3.9 Exporting benefits under EC Regulation 883/ Benefits exportable on an indefinite basis Benefits exportable for a limited period or subject to restrictions 3.10 Overlapping benefit rules Appendix 1: Rules affecting Croatian nationals Appendix 2: Rules that affected nationals of Bulgaria and Romania until 31 December 2013

6 Page 6 Migrants and benefits General information about advising migrants Any adviser can try to establish a person s immigration status by checking the person s passport or other documents issued by the Home Office. However, it is a criminal offence to give immigration advice or provide immigration services, unless you are a solicitor or a barrister or your organisation is authorised to do so by the Office of the Immigration Services Commissioner. The Office of Immigration Service Commissioner The Office of the Immigration Services Commissioner (OISC) is an independent, nondepartmental public body set up under the Immigration and Asylum Act The OISC s primary role is to regulate the circumstances when an adviser can give immigration advice or provide immigration services. Who can give advice? If you are a solicitor or a barrister or your organisation is regulated by the OISC then you can give immigration advice. The OISC regulations mean that most advisers are permitted to advise only at a general level (Level 1 adviser or a non-specialist adviser). There are some organizations, including Law Centre (NI), that are able to give specialist advice (level 2 and 3). Generally an adviser regulated by the OISC can be a non-specialist adviser (level 1) or a specialist adviser. If your organisation can provide non-specialist advice then you can explain the process to clients and can advise on straightforward applications, such as when a person is applying for further leave to remain as a student. However, if the person s circumstances are not straightforward, then the application must be handled by a specialist adviser, for example if the person is an overstayer or the application is outside the rules. If you are unsure whether you can advise the person, then you should contact the OISC s Advice Session Supervisor. If your organisation is interested in giving non-specialist advice or would like to provide specialist advice, then you should contact the OISC.

7 Migrants and benefits Page 7 How to check a person s immigration status You can ask to see a person s travel document, such as a passport or any document or letter that a person may have that shows her/his immigration status. You should look at a: Passport - If the person is a non-eea national (ie not a national of the European Economic Area), then her/his passport should have a stamp or a residence permit or a Biometric Residence Permit (BRP) that shows her/his present immigration status. Right of abode certificate - This is very unusual and shows that the holder has a right of abode. Any Home Office document - For example a letter stating that the person has been given indefinite leave to remain in the UK. A Biometric Residence Permit (BRP) - The Home Office has been issuing BRPs since November 2008 and a BRP can be used as an identity document. Residence card/registration certificate held by European nationals and members of their family. A blue travel document (carried by people who have refugee status) or a brown travel document (carried by some people with Humanitarian Leave to Remain) Examples of a stamp, a residence permit and a Biometric Residence Permit If someone has been given leave to enter or remain in the UK, there will usually be a stamp in the passport. The older stamps look like this: Leave to enter for/until SIX MONTHS No work or recourse to public funds

8 Page 8 Migrants and benefits A Residence Permit looks like this: The newer Biometric Residence Permit (or BRP) looks like this: However, the above documents may not establish the person s present immigration status and you will need to ask some questions to confirm whether or not the person has a right to reside in the UK. The most common questions are: Where was the person born? Are her/his parents British citizens or Irish citizens? Is the person an EEA national or the family member of an EEA national who is exercising Treaty rights?

9 Migrants and benefits Page 9 On what basis did the person obtain leave to enter or remain in the UK? For example, is she/he a visitor, student or a migrant worker under the PBS? Does the person have limited leave to remain in the UK or Indefinite Leave to Remain? Different categories of immigration status: Right of Abode: Commonwealth citizens with right of abode have the same rights in the UK as British citizens (see above). They are free from immigration control. They should have either: a Certificate of entitlement to right of abode (CERA), which looks like this: or a stamp in their passport saying: Holder has the right of abode in the United Kingdom; or Holder is entitled to readmission to the United Kingdom. Categories under the Immigration Rules Under UK law, the Immigration Rules set out the various ways a person can obtain leave to enter or remain in the UK. The most common examples are:

10 Page 10 Migrants and benefits The partner or minor child of a British Citizen or a person settled in the UK - The person can either have limited leave to enter or limited leave to remain in the UK. The BRP will refer to their relationship and will state that there is no recourse to public funds. Visitor - The visitor will usually be issued entry clearance or have a stamp on entry allowing her/him to stay in the UK for up to six months. The stamp or the BRP will also state that the person is prohibited from working in the UK and cannot have recourse to public funds. Points-Based System: Tier 1 - allows highly skilled persons to work or look for work in the UK. However, this category is presently closed for anyone outside the UK and for most persons in the UK under a different category. Tier 2 - The Tier 2 (General) category is for non-eea nationals who have been offered a skilled job to fill a gap in the workforce that cannot be filled by an EEA national or a person settled in the UK. Tier 4 - sets out the requirements for non EEA national adults who wish to come to the UK for their post-sixteen education. If a person has been given leave to enter or remain in the UK under the Points-Based System (PBS), the BRP will state what Tier she/he comes under and will clarify what employment she/he is allowed to undertake and whether that employment needs to be authorized by the Home Office UK Border Agency. In addition the BRP will state that the person cannot have recourse to public funds. There is also the possibility that people who have been granted leave to enter or remain under the PBS can bring their dependants into the UK (spouse and minor children).

11 Migrants and benefits Page 11 Technical words and phrases There are some technical words and phrases that have a particular meaning. Here is a brief explanation of some of those that are used in the Guide. Accession States / A8 nationals / A2 nationals in the UK, A8 is the term given to eight of the ten countries that joined the European Union in May These countries are: Czech Republic, Estonia, Hungary, Latvia, Lithuania, Poland, Slovak Republic and Slovenia. If you are a citizen of one of these countries you are known in the UK as an Accession State national or A8 national. The term A2 nationals refers to nationals of the two countries which joined the European Union (EU) in January 2007 Romania and Bulgaria. Nationals of A8 and A2 states now have full EU law rights. Croatia joined the EU on 1 July 2013 as an Accession State and nationals of Croatia are subject to the Worker Authorisation Scheme (see below). Asylum seeker a person who has applied to the Home Office for refugee status. Biometric Residence Permit a document issued by the Home Office that confirms a person has the right to be in the UK. Common Travel Area the United Kingdom (including Great Britain and Northern Ireland), the Isle of Man, the Channel Islands and the Republic of Ireland. The Common Travel Area means that there are no passport controls in operation for Irish and UK citizens travelling between the two countries. (The) Department the government department responsible for paying benefits, which is the Department for Social Development in Northern Ireland, and the Department for Work and Pensions in England, Scotland and Wales. Discretionary Leave to Remain A decision by Home Office allowing a person to stay in the UK, even though she/he does not meet the requirements of the Immigration Rules.

12 Page 12 Migrants and benefits Entry clearance citizens of most countries need to obtain permission from the Home Office before entering the UK. This permission is referred to as entry clearance. EEA national the European Economic Area (EEA) is made up of the EU which has 28 member states (Austria, Belgium, Bulgaria, Croatia, Cyprus, the Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Ireland, Italy, Latvia, Lithuania, Luxembourg, Malta, the Netherlands, Poland, Portugal, Romania, Slovakia, Slovenia, Spain, Sweden, and the United Kingdom), and three European Free Trade Association (EFTA) states (Iceland, Liechtenstein and Norway). Swiss nationals have similar rights. EU European Union (Austria, Belgium, Bulgaria, Croatia, Cyprus, the Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Ireland, Italy, Latvia, Lithuania, Luxembourg, Malta, the Netherlands, Poland, Portugal, Romania, Slovakia, Slovenia, Spain, Sweden, and the United Kingdom) European treaty right This refers to the status an EEA national has when she/he can stay in the UK under European law. It includes when an EEA national is working for an employer, self-employed, a student, self-sufficient or a jobseeker or is the family member of such a person. EU residence documents If a person is an extended family member she/he must have a residence document in order to have a right to reside under EU law. EU residence documents are issued by the Home Office. In other cases it is not necessary to obtain EU residence documents, however such documents are useful confirmation of a person s status where any dispute arises. Under EU law the document simply confirms the person s right of residence, it does not confer it. Also if the person s circumstances have changed a residence document will not give the person a right to reside if, on the facts, that right to reside has ended. EU residence documents are issued by the Home Office. Forms and information are available on the Home Office website. There are a number of different documents depending on a person s circumstances. These are:

13 Migrants and benefits Page 13 a Registration Certificate this applies where the person is an EEA national with a right of residence under the EEA Regulations; a residence card this applies where the person is a non EEA national with the right to reside as the family member of an EEA qualified person or an EEA national who has a permanent right of residence; a derivative residence card this applies where the person is an EEA national with a derivative right to reside, for example as the primary carer of a worker s child in education; a document certifying permanent right of residence this applies where the person is an EEA national; a permanent residence card this applies where the person is a non EEA national. Extended family member of an EEA national Extended family members are treated as family members (see below) and will have the same rights as family members, if issued with an EEA family permit, a registration certificate or a residence card. Extended family member covers: a partner in a durable relationship; a person who is dependent upon the EEA national or is a member of her/his household; a relative of an EEA national/ spouse or civil partner, who on serious health grounds needs the personal care of the EEA national/ spouse or civil partner. Family member of an EEA national A family member includes: a spouse or civil partner of an EEA national (a person remains a spouse or civil partner even if separated and will only cease to be such upon divorce or legal termination of the civil partnership); a child, dependent grandchild or great grandchild of the EEA national/spouse or civil partner of EEA national who is under 21 or dependent (this definition will cover stepchildren); a dependent parent, grandparent or great grandparent of an EEA national, her/his spouse/civil partner. NOTE: Family member of a student The definition of family member restricts the definition of family member of a student after the initial three month period to her/his spouse or civil partner, a dependent child of the student or her/his spouse or civil partner unless the student falls within another category of Qualified Person.

14 Page 14 Migrants and benefits Her Majesty s Revenue and Customs (HMRC) the official name for the UK Tax Office. Illegal entrant a person who has entered the UK unlawfully. For example, she/he entered the UK clandestinely or used a false travel document to enter the UK. The Home Office will have given the person a document stating that she/he is an illegal entrant. (The) Immigration Rules a set of rules that set out the circumstances when a person can enter and remain in the UK. The rules are regularly amended and an up to date version can be found under policy and law on the website of the Home Office. Indefinite Leave to Remain is the status of a person who no longer has any conditions attached to her/his leave to remain in the UK. This is also known as permanent residence or settled status. Limited leave to enter/remain in the UK the status of a person whose leave to enter/remain in the UK will expire on a certain date (shown on the stamp or vignette). Generally a person with limited leave to enter/remain in the UK will also be prohibited from working and/or from having recourse to public funds. National Insurance a tax paid from wages and salaries in the UK which is used to finance some social security benefits. National Insurance number a number issued by the Social Security Agency, which a person must apply for if she/he intends to work in the UK and if she/he wishes to claim social security benefits. Northern Ireland Housing Executive (NIHE) the government agency responsible for allocating government owned housing and for offering advice to homeless persons on finding suitable accommodation. Overstayer a person who had leave to enter the UK, but her/his leave has now expired. If the person has applied for further leave to remain in the UK prior to the expiry of her/his leave and the application has not been determined by UKBA, then she/he is not an

15 Migrants and benefits Page 15 overstayer. Her/his leave to remain in the UK will continue until the application has been finally determined. Points-Based System (PBS) the scheme for non-eea migrant workers entering the UK for employment which from 2008 was brought in to replace the previous work permits and other schemes. Public funds refers to certain funds provided by the government, such as Income Support. If you are in the UK under the Points-Based System it is unlikely that you will have access to those benefits that count as public funds, and you should always seek specialist advice before making a claim to any social security benefit. See section 1 on Non EEA nationals and benefits for further details. Refugee is a person who is at risk of suffering serious harm in her/his country of origin. Remove/removal the act of the government to move a foreign national from the UK to a certain place, usually her/his home country if she/he is unlawfully in the UK or she/he is not entitled to enter the UK. Social Security Agency the government agency responsible for issuing National Insurance numbers and social security benefits. Social security benefit money provided by the government to help some individuals in financial difficulty. United Kingdom (the UK) official name for the state consisting of the island of Great Britain (England, Scotland and Wales) and Northern Ireland. Visa permission to enter the UK; will usually be issued in the form of a stamp (or a vignette) in a person s passport. Work permit a form of permission formerly granted by Work Permits (UK), a branch of the Home Office, which allowed non-eea nationals to work in the UK for a particular employer.

16 Page 16 Migrants and benefits Worker Authorisation Scheme a scheme set up by the UK government which requires Croatian nationals to apply for permission to work before starting to work for an employer in the UK. This scheme does not apply to Croatian nationals who are self-employed or students. The Worker Authorisation Scheme applied to Bulgarian and Romanian nationals until 31 December 2013 when restrictions ended. Worker Registration Scheme the scheme which ran from 2004 to April 2011 through which A8 nationals had to register their employment with the Home Office for the first twelve months of being employed. It did not apply to A8 nationals who were self-employed.

17 Migrants and benefits Page Non-EEA nationals and benefits 1.1 Immigration status It is important to know a person s immigration status and the immigration status of each member of her/his household before advising on entitlement to benefits. This is because a person s immigration status can affect her/his entitlement to benefits and tax credits. If a person is defined as a person subject to immigration control, she/he will be excluded from most benefits and tax credits. In some circumstances making a claim for benefit or receiving benefit for a person who is excluded due to immigration status can have serious consequences for the person s right to remain in the UK. An EEA national is not a person subject to immigration control. If a person and every member of her/his household is an EEA national, then the rules in this section will not apply. However, EEA nationals, including UK nationals, must satisfy the rules on residence which are set out in section 2. This section covers: the rules on who is a person subject to immigration control for benefit purposes; which benefits a person subject to immigration control will be entitled to claim; the entitlement of couples to benefits where one person is a person subject to immigration control. 1.2 Person subject to immigration control A person is not a person subject to immigration control if she/he is a: British citizen; person with a right of abode; EEA national;

18 Page 18 Migrants and benefits refugee; person with discretionary leave to enter or remain; person with indefinite leave to enter or remain (but not if she/he is the subject of a formal undertaking). For benefits and tax credits, a person subject to immigration control means a person who is not a national of an EEA state and who: (a) requires leave to enter or remain in the UK but does not have it; (b) has leave to enter or remain which is subject to a condition that she/he does not have recourse to public funds; (c) has leave to enter or remain given as the result of a maintenance undertaking; (d) has leave to enter or remain solely because she/he is appealing a decision to refuse to vary a previous decision on leave. (a) requires leave to enter or remain in the UK but does not have it Examples include where a person: is an asylum seeker with temporary admission; has overstayed her/his limited leave to remain; has entered the UK illegally; is subject to a deportation order. These are just a few examples. Seek specialist advice if a person is refused social security benefits or tax credits due to being a person subject to immigration control or if contacted by a person who these rules may apply to. There are close links between the Home Office and benefit authorities. Making a claim for a benefit or tax credit may alert the Home Office to a person s presence in UK and could result in deportation. (b) has leave to enter or remain in the UK which is subject to a condition that she/he does not have recourse to public funds Examples include people admitted to the UK with time limited leave such as spouses/civil partners, students or visitors who are given limited leave on the condition that they do not have recourse to public funds (see section for what is counted as public funds ).

19 Migrants and benefits Page 19 Such a person will usually have a stamp on her/his passport that she/he is not permitted to have recourse to public funds. See below for example. (c) has leave to enter or remain in the United Kingdom given as a result of a maintenance undertaking; A maintenance undertaking is a written undertaking given by a person to be responsible for the maintenance and accommodation of another person coming to the UK. It is sometimes known as a sponsorship agreement. Where an elderly relative is seeking to join family in the UK, the Home Office will usually require a maintenance undertaking. If there is any doubt about whether the person s leave was given as a result of an undertaking then she/he should take specialist immigration advice. (d) Leave to enter or remain is being extended while they appeal against a refusal to vary leave. An example of this is where a person has appealed a decision to vary leave which she/he previously had. A person affected by this rule should seek further specialist advice Public funds The list of excluded public funds is contained in the Immigration Rules. This list is subject to change and should be checked before advising a person to make a claim for a tax credit or benefit. At the time of writing the following benefits are public funds: Attendance Allowance; Carer s Allowance;

20 Page 20 Migrants and benefits Child Tax Credit; Disability Living Allowance; Income-related Employment and Support Allowance (ESA); ESA in youth; Housing Benefit; Incapacity Benefit for incapacity in youth; Income-based Jobseeker s Allowance; Income Support; Pension Credit; Personal Independence Payment (to be introduced in Northern Ireland some time in 2014); Severe disablement Allowance; Social Fund payment; Universal Credit (due to be introduced in Northern Ireland some time in 2014); Working Tax Credit. Homelessness assistance and social housing, for example Northern Ireland Housing Executive and Housing Association accommodation, are also defined as public funds. If a benefit does not appear on the public funds list, then it will not be treated as a public fund and a person subject to immigration control may be able to claim it. Also if a person comes within an exception see sections 1.4 to 1.6, she/he will not be regarded as having recourse to public funds. Having recourse to public funds when a person is subject to immigration control can have serious implications for her/his permission to remain in the UK. This applies even if the claim for benefit is refused. Having recourse to public funds in breach of leave conditions can result in deportation, refusal of any future applications for leave to remain, and prosecution.

21 Migrants and benefits Page Employment related benefits that can be claimed by a person who is a person subject to immigration control A person who is a person subject to immigration control may claim any benefit that is not listed as a public fund. These include benefits that are based on prior national insurance contributions including: Contribution-based Jobseeker s Allowance; Contribution-based Employment and Support Allowance; and State Retirement Pension. A person subject to immigration control may also claim employment related benefits such as: Statutory Sick Pay; Statutory Maternity Pay; Statutory Paternity Pay; Statutory Adoption Pay; Maternity Allowance; Industrial Injuries Benefits. EXAMPLE Khaled is a person subject to immigration control: his visa which permits him to work states that he must not have recourse to public funds. He is severely disabled in an accident in the hospital where he works. He is entitled to claim Industrial Disablement Benefit as well as Statutory Sick Pay. If he satisfies the national insurance contribution conditions he will be entitled to claim Contribution-based Employment and Support Allowance when his Statutory Sick Pay ends. He will not be entitled to means tested benefits or to Disability Living Allowance.

22 Page 22 Migrants and benefits Some provisions in the Welfare Reform Bill (which is currently passing through the Northern Ireland Assembly and is due to become law some time in 2014) will restrict entitlement to the benefits listed above to those who have a right to work in the UK. Where a person may be affected by such a change, an adviser should contact the Law Centre s advice line. 1.4 Means tested benefits: Income Support, Income-based Jobseeker s Allowance, Income-related Employment and Support Allowance, Pension Credit, Housing Benefit, Universal Credit - person subject to immigration control In the limited circumstances set out below, it will be possible for a person who is a person subject to immigration control to receive: Income support; Income-based Jobseeker s Allowance; Income-related Employment and Support Allowance; Pension Credit; Housing Benefit; Universal Credit (once it is introduced some time in 2014). This will apply where the person: has leave to enter or remain given as a result of a maintenance undertaking and she/he has been resident in UK for at least five years; has leave to enter or remain given as a result of a maintenance undertaking and the person who gave the undertaking has died; is a national of Macedonia or Turkey and is lawfully present in UK. This may apply where a person has leave to enter or remain for a period which means she/he is lawfully present. However, such people will have to satisfy the habitual residence and right to reside test set out in section 2 and temporary admission does not give a person a right to reside.

23 Migrants and benefits Page Non-means tested benefits: Attendance Allowance, Carer s Allowance, Child Benefit, Disability Living Allowance, Employment and Support Allowance in Youth, Personal Independence Payment, Severe Disablement Allowance - person subject to immigration control A person who is a person subject to immigration control will not be excluded from: Attendance Allowance (AA); Carer s Allowance; Child Benefit; Disability Living Allowance (DLA); Employment and Support Allowance in Youth (due to be abolished in 2014); Personal Independence Payment (due to be introduced some time in 2014); Severe Disablement Allowance; if she/he: is the family member of an EEA national, including a British citizen; is a national or family member of a national of Algeria, Morocco, San Marino, Tunisia or Turkey who is lawfully working in the UK or who has stopped lawfully working due to pregnancy, childcare, illness or accident or because she/he has reached retirement age; has leave to enter or remain given as a result of a maintenance undertaking; (for DLA, AA and Child Benefit only) is covered by a reciprocal agreement; was in receipt of benefit before 5 February 1996 (7 October 1996 for Child Benefit). EXAMPLE Jill is a person subject to immigration control. She is a citizen of the United States who entered Northern Ireland under a two year spousal visa which stated that she must have no recourse to public funds when she joined her English husband who had taken up employment in Northern Ireland. She is severely disabled. Although Disability Living Allowance is listed as a public fund, she is entitled to claim it because she comes within the exception that she is a family member of an EEA national as her English husband is an EEA national.

24 Page 24 Migrants and benefits 1.6 Tax credits and person subject to immigration control NOTE: If a person is a person subject to immigration control but her/his partner is not, or her/his partner comes within one of the exceptions set out below, it will be possible to make a joint claim for tax credits, see section A person who is a person subject to immigration control will not be excluded from entitlement to: Child Tax Credit; Working Tax Credit (WTC); if she/he: has leave to enter or remain given as a result of a maintenance undertaking and she/he has been resident in the UK for at least five years; has leave to enter or remain given as a result of a maintenance undertaking and the person who gave the undertaking has died; (WTC only) is a national of Macedonia or Turkey and is lawfully present in UK. This may apply where a person has leave to enter or remain for a period which means she/he is lawfully present. However such people will have to satisfy the habitual residence and right to reside test set out in section 2 and temporary admission does not give a person a right to reside. (for up to 42 days in the period of leave) has limited leave with a condition that she/he does not have recourse to public funds, has not had such recourse to public funds, but funds that are reasonably expected from abroad have been temporarily interrupted. 1.7 Families where some members are subject to immigration control and some are not Different rules apply to specific groups of benefits where a member of a household is a person subject to immigration control. Advisers should carefully consider sections to

25 Migrants and benefits Page Income Support/Income-based Jobseeker s Allowance/ Income-related Employment and Support Allowance Where a person claiming has a partner who is a person subject to immigration control, the partner will be included in the claim as a member of the household and the person claiming will only be paid the single rate of a personal allowance, unless the partner falls within one of the groups set out section 1.4 that can claim means tested benefits. However, even though no amount will be paid for the partner who is a person subject to immigration control, she/he will be treated as part of the claimant s household and her/his work, income and capital will affect benefit entitlement and will mean that the claimant will not qualify as a lone parent and may not be entitled to a Severe Disability Premium. If a person who is not a person subject to immigration control is entitled to a premium, this may be paid at a couple rate. However, this is something to be cautious about as it may lead to a partner who is a person subject to immigration control being regarded as having had recourse to public funds. EXAMPLE Samuel is a British citizen. He is entitled to Disability Living Allowance, Incomerelated Employment and Support Allowance and Housing Benefit. His wife Lee Ping joins him from Thailand. She is a person subject to immigration control as her spousal visa states that she must not have recourse to public funds. Samuel will continue to receive Income-related Employment and Support Allowance but will receive the personal allowance at the single rather than couple rate. He will lose the severe disability premium of Income-related Employment and Support Allowance as his wife is taken into account as part of his household State Pension Credit Different rules apply to State Pension Credit. Where a person claiming has a partner who is a person subject to immigration control, then that person will not be included as part of the household in benefit calculations. This means that the claimant will be paid as a single

26 Page 26 Migrants and benefits person and her/his partner s income and capital will not be taken into consideration. It may also be possible to argue that the claimant should be entitled to continue to receive any additional amount for severe disability. EXAMPLE Ruby is a British citizen. She is entitled to State Pension Credit and Attendance Allowance. Her husband Tarik joins her from Turkey. He is a person subject to immigration control as his two year spousal visa states that he must not have recourse to public funds. Ruby will continue to receive State Pension Credit paid at a single rate. Her husband s savings of 20,000 will not be taken into consideration and will not affect her entitlement as he is not included as a member of her household under State Pension Credit rules. Arguably she should continue to receive the severe disability addition of State Pension Credit as her husband is not included as a member of her household Housing Benefit If a claimant s partner or a child in the household is a person subject to immigration control, Housing Benefit will include amounts for the partner/child. This can lead to difficulties because if that partner or child s leave (immigration status) states that she/he must not have recourse to public funds, receipt of extra amounts of Housing Benefit could affect her/his right to remain in the UK. It is advisable to make it clear in any claim for Housing Benefit that the person s leave states that she/he is not to have to recourse to public funds and to expressly request that the award does not include an amount for that person Child Benefit If a claimant is not a person subject to immigration control, it will be possible to claim for a child for whom the person is responsible even if that child is a person subject to immigration control. This is because it is only the immigration status of the person claiming that is relevant.

27 Migrants and benefits Page 27 EXAMPLE Matthew is a British citizen. His partner Fatima is an asylum seeker. She has one child. Matthew will be entitled to claim Child Benefit for the child even though the child is regarded as a person subject to immigration control Disability Living Allowance If a child who is not a person subject to immigration control is the claimant, she/he will not be excluded from claiming where her/his responsible adult is a person subject to immigration control. A person who is subject to immigration control will be entitled to claim Disability Living Allowance if she/he is the family member of an EEA national Tax credits Couples with children will be paid Child Tax Credit and Working TaxC at a couple rate even where one member of the couple is a person subject to immigration control. Any child for whom the person is responsible will be included in the claim and will receive payment even if the child is a person subject to immigration control. Such payments are not regarded as having had recourse to public funds EXAMPLE Alex is a British citizen who is working in Northern Ireland. His partner Ivanna is a person subject to immigration control as she is Russian and her visa states that she must not have recourse to public funds. Alex and Ivanna must make a joint claim for tax credits as a couple and will be paid at a couple rate for Working Tax Credit and Alex will be able to claim Child Tax Credit for Ivanna s two children. Couples without children will claim working tax credit as a couple but, where one member of the couple is a person subject to immigration control, the couple element will not be paid.

28 Page 28 Migrants and benefits EXAMPLE Ibrahim is a British citizen who is working in Northern Ireland. His wife Fatima is a person subject to immigration control as her two year spousal visa states that she must not have recourse to public funds. Ibrahim and Fatima must make a joint claim for tax credits but will not be paid the couple element as they have no children. Fatima is pregnant. When her baby is born the couple s award of tax credits will be amended to include the couple element and they will be entitled to Child Tax Credit Universal Credit (due to be introduced some time in 2014) If a claimant s partner is a person subject to immigration control and is not in one of the exceptions set out at section 1.4, then the person making the claim will claim as a single person, but the partner s income and capital will be taken into account. This is less favourable than the current position under tax credits. Claimants may experience problems where a mixed status couple is being migrated onto Universal Credit. As a general rule when tax credits claims are migrated to Universal Credit there will be transitional payments ensuring that Universal Credit will be paid at a rate equivalent to any previous tax credit award. It is unclear whether this will apply in circumstances where one member of a couple is a person subject to immigration control. 1.8 Refugees and benefits A refugee is not a person subject to immigration control for benefit purposes. Refugees are entitled to claim benefits. However, a person who has applied for refugee status is known as an asylum seeker and asylum seekers come within the person subject to immigration control rules until refugee status is granted.

29 Migrants and benefits Page Refugees and Income Support A refugee can claim Income Support for up to nine months while studying if she/he: attends a course for more than fifteen hours per week aimed at learning English for the purpose of getting employment; has been in Northern Ireland for not more than twelve months when the course begins Refugees and tax credits, Child Benefit and Guardian s Allowance A person who has been granted refugee status can claim tax credits, Child Benefit and Guardian s Allowance and have them backdated to the date of asylum application. Tax credits must be claimed within one month and Child Benefit and Guardian s Allowance must be claimed within three months of receiving the letter from the Home Office granting leave as a refugee. The amount of tax credits will be reduced by the amount the person received from National Asylum Support (NASS) for support and this may cancel out tax credit entitlement. However, the claim should be made and potential entitlement explored. NOTE: The amount of Child Benefit or Guardian s Allowance is not reduced by the amount of asylum support received. EXAMPLE Abdi is awarded refugee status on 9 October She has two children and makes claims seven days later for Child Benefit and Child Tax Credit. Her Child Benefit and Child Tax Credit are backdated to the date of her asylum claim but her Child Tax Credit payment is reduced by the amount of NASS support which she received. In contrast, her friend Amal who also received refugee status on 9 October 2013 claimed Child Benefit and Child Tax Credit four months later. Her Child Benefit is backdated for three months and her Child Tax Credit is backdated for 31 days.

30 Page 30 Migrants and benefits Fast track procedure for tax credit claims Refugees who are making claims for Income-based Jobseeker s Allowance or Income-related Employment and Support Allowance or Income Support are now able to ask to make a fast track claim for tax credits through the Jobs and Benefits Office. Under fast track claims, HMRC aims to process claims and make payments in ten working days. There is still a lack of awareness in local Jobs and Benefits Offices about the fast track procedure. Contact the Law Centre for further information and guidance if necessary. NOTE: When a person is granted refugee status, it is important that advisers arrange for appropriate claims to benefits without delay. This is because NASS support will be withdrawn after 28 days and it will take some time for claims for benefit to be made and processed. Time is of the essence. Contact the Law Centre for advice and assistance where difficulties arise.

31 Migrants and benefits Page EEA nationals and benefits Many benefits and tax credits have residence and/or presence conditions. These rules vary between different benefits. General information about who is an EEA national and who is the family member of an EEA national is set out in the section on technical words and phrases (see pages 10 to 14). There is also information in that section about EU residence documents. This section covers: habitual residence and right to reside; ordinary residence and right to reside; contribution-based and employment benefits and residence. Special rules currently apply restricting the right to reside of Croatian nationals until 1 July These rules may then be extended to 1 July These are set out at Appendix 1. Similar restrictions applied to Bulgarian and Romanian nationals until 31 December These are set out at Appendix 2. These rules are included in Appendix 2 as they may be relevant in determining whether a person has satisfied rules for permanent residence or retention of worker status. If a person claiming benefit or her/his partner or any member of her/his household is not an EEA national, then check Section 1 before looking at this section. This is important because, if Section 1 of these notes applies and the person s immigration status means that she/he is not entitled to claim public funds, then being included in a claim for a social security benefit or tax credit may lead to serious consequences, including deportation and prosecution.

32 Page 32 Migrants and benefits 2.1 The habitual residence and right to reside test Income-based Jobseeker s Allowance From 1 January 2014 a person Income-based Jobseeker s Allowance must as a rule have been residing in the common travel area for three months as a condition of entitlement to benefit. In addition, Income-based Jobseeker s Allowance claimants must satisfy the habitual residence and right to reside rules set out below. Income-based Jobseeker s Allowance, Income-related Employment and Support Allowance, Income Support, Housing Benefit, Pension Credit (and Universal Credit which is due to be introduced some time in 2014) Income-based Jobseeker s Allowance, Income-related Employment and Support Allowance, Income Support, Housing Benefit, Pension Credit (and Universal Credit which is due to be introduced some time in 2014) require that a person must be habitually resident and have a right to reside to be entitled to benefit. Unless a person is in an exempt group, she/he must: be habitually resident in fact in the Common Travel Area (the UK, Ireland, the Channel Islands or the Isle of Man); and have a right to reside in the Common Travel Area Exempt groups A person will be exempt from the habitual residence test Income-based Jobseeker s Allowance, Income-related Employment and Support Allowance, Income Support, Housing Benefit, Pension Credit (and Universal Credit which is due to be introduced some time in 2014) and will be treated as having a right to reside if she/he is: an EEA national who is a worker or retains worker status; EXAMPLE Luis comes to Northern Ireland to take up an offer of employment at a local computer company. He is entitled to claim Housing Benefit as soon as he arrives in

33 Migrants and benefits Page 33 Northern Ireland as he is an EEA worker who is exempt from the habitual residence and right to reside test. an EEA national who is self-employed or retains self-employed status; a family member of a person in either of the above two groups; an EEA national or family member of an EEA national with a permanent right of residence as a retired or permanently incapacitated worker or self-employed person; a Croatian national working lawfully under worker authorization provisions; a refugee; a person with exceptional leave to enter or remain in UK granted outside the Immigration Rules; a person with humanitarian protection granted under the Immigration Rules; a person deported, expelled or legally removed from another country to the UK who is not a person subject to immigration control; EXAMPLE Abdullah is a dual British/ Syrian citizen. He is deported to the United Kingdom from the United Arab Emirates. He is entitled to Income-based Jobseeker s Allowance straight away as he is exempt from the habitual residence and right to reside test. a person who left Zimbabwe to come to the UK after 28 February 2009 but before 18 March 2011 who has received assistance from the UK government to settle in the UK. For Housing Benefit only receives Income Support, Income-related Employment and Support Allowance, Income-based Jobseeker s Allowance or State Pension Credit For Income-related Employment and Support Allowance only is being transferred from Income Support to Income-related Employment and Support Allowance which was transitionally protected from the requirement to have a right to reside Habitual residence the Factual Test If not exempt, a person must show habitual residence in the Common Travel Area (the UK, Ireland, the Channel Islands and the Isle of Man).

34 Page 34 Migrants and benefits NOTE. Benefit authorities often make the mistake of disregarding habitual residence outside the UK but within the Common Travel Area. Watch out for this as disputes may be easily resolved where habitual residence within the Common Travel Area can be shown. Also the decision maker must consider the question of whether the person was habitually resident right up to the date of the decision rather than simply the date of claim. There is no definition of habitual residence in legislation but there is a substantial amount of case law on what is habitual residence. The following principles have emerged from case law: habitual residence is a question of fact to be decided on all the circumstances of the case; a person must actually be resident in order to be habitually resident; it is not enough to have an intention to become resident; a person need not intend to reside permanently, but must have a settled intention to reside in the Common Travel Area for the time being; no particular period of actual residence is essential for establishing habitual residence, however, in most cases a person must have actually been resident for an appreciable period of time. There have been a significant number of appeals on the issue of what is an appreciable period of time. What is an appreciable period is not set down in law and needs to be considered in the individual facts of each claim. It would be unlawful for the Department (DSD) to apply a blanket policy that a person must be resident for a specific period of for example three months without further consideration of the facts, and such a policy could be challenged by an application for judicial review; the adjudicating authorities must look at the settledness of the person s intention to reside in the Common Travel Area and this is linked to the determination of the length of the appreciable period of time. The stronger the person s settled intention is to reside in the Common Travel Area, the shorter the period of actual residence will be necessary.