Housing Benefit Guidance Manual: Amendment 16 June 2008
Chapter C4 - People from abroad (continued)
Part I - Current Position (continued)
People not affected by the second stage of the HRT (continued)
Deciding on habitual residence
Habitually resident?
4.107 The second stage of the HRT is most likely to be satisfied where several of the following apply
- the claimant has been living in the CTA for longer than a year, managing on their own resources/family support and intends to remain here
- the claimant has come to the UK to seek work, they have made preparations for finding work before arriving; they have relevant qualifications and a realistic prospect of finding work
- the claimant has come to the UK from abroad and intends to remain in the UK for the foreseeable future, they maintain a home in the UK (ie accommodation which is more than a casual arrangement and the intention is to reside in that home apart from short absences abroad, eg on holiday)
- the claimant has previously lived in different countries before moving here on a permanent basis
- the claimant maintains their centre of interest here (eg a home, good job prospects, friends and relatives, membership of clubs) but may spend frequent periods in another country during the year
- the claimant has severed all ties with the former country of residence
These are only examples. Other factors may be more important in a particular case. You must consider all the relevant evidence.
4.108 The second stage of the HRT might be satisfied where one of the following applies
- a single claimant has her parental home in another country. She has not previously worked in the UK. She has relations or contacts here who intend to help her find employment and her prospects are good. She has a six month lease on accommodation and has brought most of her personal belongings to the UK
- a married claimant, who originates from outside the EEA, has lived and worked in this country for 18 months, his wife is also working part-time. They have two children and have lived in their present rented accommodation for over six months. They have severed their ties with their previous country but hope to visit relatives still living there from time to time. They are settled in this country, have a number of friends here and intend to remain in the UK
- the claimant emigrated with her parents and has spent her working life abroad. Due to the serious deterioration in the political stability of the country in which she was living she has returned to the UK and is living temporarily with relatives. They are helping her find accommodation and a job. She has severed her ties with her previous country and intends to live permanently in the UK
4.109 These are examples only.
Not habitually resident?
4.110 The fact that a claimant is treated, for HB/CTB purposes, as having their main residence in the UK, or is liable for the payment of council tax, does not automatically mean that they satisfy the second stage of the HRT. Similarly, non-EEA claimants receiving Working Tax Credit or DWA will not automatically satisfy the test, although they are for the purposes of those benefits deemed to be ‘ordinarily resident’ in the UK.
4.111 A claimant may be regarded as not habitually resident in the CTA where one or more of the following apply
- the intention is to reside in the UK for only a short period, eg on holiday or visiting friends or relations
- the claimant has come from an EEA country outside the CTA, has worked in the UK for less than three months, perhaps doing seasonal work, and is presently unemployed. They would like to stay in the UK for a few months and then may move elsewhere
- there is a history of spending short periods in the UK during the year but the person usually resides for most of the year in a country outside the CTA
- the intention is to undertake a course of study, either full time or part time, after which they may obtain a job depending on results etc, or they may return to their country of origin outside the CTA
- the claimant has only casual accommodation arranged and usually moves from one country to another
- a permanent home is maintained in another country and the intention is to return there shortly
- the centre of interest is in a country outside the CTA, there are no ties with the UK, no members of their family live here (other than perhaps a distant relative) and they have poor employment prospects
- no adequate preparations for employment have been made, and the claimant has no experience or qualifications consistent with realistic prospects of finding work
- a claimant has recently arrived in the UK. She has no immediate family here and has previously been here only as a student or temporary visitor. She has made no prior enquiries about employment and has no particular qualifications or experience that might lead to realistic job prospects in the UK. She has only a very short-term lease or the promise of a few nights’ accommodation. She has no other ties with the UK
- a claimant has come to the UK specifically to take up part-time study and will probably return to her country of origin when the course is finished. Meantime, she has found rented accommodation, perhaps with other students, and is looking to fit work around her study. She may spend some of her vacations in her previous country
- an EEA national has been in the UK for a few weeks. He has had one or two short-term casual jobs, but cannot be regarded as a worker. He is currently unemployed. He has no particular qualifications or experience that might lead to good job prospects. He is staying with friends but has no immediate family here. He has no other ties with the UK
4.112 This is not an exhaustive list.
4.113-4.119
Self-sufficiency test
4.120 The Self-sufficiency test is a two step test giving consideration of
- self-sufficiency
- unreasonable burden
4.121 Step 1: Self-sufficiency: EC directives stipulate that an individual’s resources shall be deemed sufficient when they are higher than the level of resources below which the host Member State, eg UK, may grant social assistance, eg IS, JSA(IB), HB/CTB, State Pension Credit, to its nationals taking into account
- the personal circumstances of the applicant
- their dependants, if appropriate
4.122 Step 2: Unreasonable Burden: EEA16, A2 and A8 nationals who are economically inactive only have a right to reside when they and their family members have sufficient resources to avoid becoming a burden on the social assistance system. Each case is considered on its own merits and considerations can include the length of time they will be dependent on public funds.
4.123 If EEA nationals claim benefits after having been in the UK for some time, the fact that they have been self-sufficient will be a factor in a decision on whether the burden is reasonable, as will the length of time that they are likely to be claiming benefits. EEA Nationals who have no prospect of finding work or becoming self-sufficient may be considered an unreasonable burden on the state.
4.124-4.129
Worker Registration Scheme
4.130 From 1 May 2004, A8 Nationals who find work in the UK have to register under the Home Office Worker Registration Scheme. They should do this as soon as they start work, and within one month of starting a job at the very latest. They will not be able to apply to register before starting work.
4.131 They will be issued with a Worker Registration Card, containing a reference number, and a Worker Registration Certificate authorising them to work for the employer concerned. The registration certificate is valid while they are working for the specified employer. If they take up new employment they have to apply for a new registration certificate authorising them to work for their new employer. See Annex F for
- more information about the Worker Registration Scheme
- an example of the
- Worker Registration Card
- Worker Registration Certificate
4.132-4.139
EEA workers
4.140 EEA workers are not affected by the immigration status test and cannot therefore be treated as PSIC and excluded from entitlement on these grounds. They are eligible to claim HB/CTB in the normal way.
4.141 EEA workers have a right to reside in the UK and to claim HB/CTB without having to show habitual residence. The term ‘EEA worker’ has a fairly narrow definition but there is a much wider group of people who can legitimately claim to be treated as if they were workers.
4.142 Briefly, an EEA national who is engaged in work in the UK which is ‘effective and genuine’, see Annex A at the end of this chapter, irrespective of the number of hours worked or the payment received from it, is a worker. Certain former workers and their dependants are also covered by workers’ rights, subject to specified conditions. Annex B at the end of this chapter, discusses the various categories and qualifying conditions in more detail.
4.143-4.149
Asylum seekers
Background
4.150 A person subject to immigration control may seek to enter or remain in the UK by indicating a fear of persecution if they were returned to their country of origin or habitual residence: this is the basis of an ‘asylum application’. Every asylum application made in the UK is referred to the Home Office Immigration and Nationality Department (IND) for determination. Until a case has been determined or resolved by the Home Secretary, or the applicant withdraws the claim, no action will be taken to require the person’s departure from the UK. LAs should not question an applicant about the basis of a claim for asylum.
4.151 All asylum applications are determined by the Home Secretary in accordance with the provisions of the 1951 United Nations Convention and 1967 Protocol relating to the Status of Refugees which has been ratified by the UK and other countries. The Protocol defines a refugee as a person who has a ‘well founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion’. It restricts the freedom of a signatory state to expel a refugee from its territory and also provides for refugees to be given the same treatment with respect to public relief and assistance as the host state’s own nationals.
4.152 Following an asylum application the Home Office may
- recognise the person as a refugee and grant asylum, or
- refuse asylum but grant humanitarian protection, discretionary leave to enter or remain or exceptional leave to enter or remain in the UK, o
- refuse asylum
4.153 If the asylum seeker is granted refugee status, humanitarian protection, discretionary leave to enter or remain or exceptional leave to enter or to remain, the Home Office will issue a letter and a status document to confirm their status, and they should produce both if they need to claim benefit. Refugees, and persons granted humanitarian protection, discretionary leave to enter or remain or exceptional leave to enter or to remain, are eligible for HB/CTB on the same basis as British citizens.
4.154 An appeal against the Home Office’s decision not to grant refugee status will be considered first by an independent special adjudicator and, with leave, by the immigration appeal tribunal. Exceptionally, an individual applicant may apply to the Courts for the Home Secretary’s decision to be judicially reviewed.
4.155 People who have been granted asylum are known as refugees and are not PFA. A refugee is given indefinite leave to enter or remain in the UK, with no restrictions on any claim for public funds. From 30 August 2005, refugee status is granted initially for five years with no restrictions on any claim for public funds.
4.156 As soon as a person is recognised as a refugee they are normally entitled to bring their immediate family to join them in the UK. They are not required to show that they can support and accommodate their family, whose admission will not contain a restriction on access to public funds.
4.157 Applicants who are refused asylum but are granted humanitarian protection, discretionary leave to enter or remain or exceptional leave to remain have no restrictions on any claim for public funds. However they will not normally qualify for their family to join them in the UK until they have applied for and been granted indefinite leave to remain.
Note: For asylum seeker’s from EU Accession Countries , see Asylum seeker’s from EU Accession Countries later in this chapter.
4.158 From 30 August 2005, people granted humanitarian protection can apply for their family to join them in the UK. They are not required to show they can support and accommodate their family, whose admission will not contain a restriction on access to public funds.
Asylum seeker arrangements from 3 April 2000
4.159 New arrangements for asylum seekers applied from 3 April 2000. These include
- the provision of support by the National Asylum Seeker Service (NASS)
- transitional arrangements for existing asylum seekers claiming HB/CTB, and
- an interim scheme that will provide support for existing asylum seekers who are removed from HB/CTB by new regulations and some new asylum seekers
4.160 Entitlement to Social Security Benefits for asylum seekers was removed by Section 115 of the Immigration and Asylum Act 1999, which
- came into force on 3 April 2000
- removes asylum seekers from entitlement to Working Tax Credit and Child Tax Credit
From 3 April 2000 new asylum applicants are not eligible for HB or CTB*. *Social Security (Immigration and Asylum) Consequential amendment Regulations 2000 (SI 2000/636), Regs. 6 and 7.
4.161 From 3 April 2000 new port applicant asylum seekers arriving in the UK are supported under new arrangements managed by NASS set up by the Home Office.
4.162 The support provided by NASS will largely be in kind, and may include accommodation. The cost of accommodation will be funded by NASS. Asylum seekers requiring accommodation will be located in ‘cluster areas’, most of which will be sited outside the London and Kent areas. They will have no choice over the area in which accommodation will be offered.
4.163 The asylum seeker may receive support from NASS while any appeal against a negative decision on an asylum application is considered.
4.164 Asylum seekers supported by NASS will attract a non-dependant deduction if they choose to stay with people who are receiving HB or CTB, rather than take up accommodation offered by NASS. There are no special rates of deduction for asylum seekers. The amount of non-dependant deduction should be based on the non-dependant’s income, in the normal way.
4.165 See Claims from couples/civil partnerships or people living together as civil partners later in this chapter for advice about dealing with couples/civil partnerships or people living together as civil partners where the claimant, who is not a PFA, claims for a partner who is an asylum seeker supported by NASS.
4.166 Unaccompanied children seeking asylum will continue to be supported by local authority Social Services Departments under the provisions of the Children Act 1991.
4.167 From 1 April 2000 there is no longer an upheaval list. However, a person who sought asylum on or before 2 April 2000, where the secretary of State has made an upheaval declaration, may continue to be eligible for HB/CTB.
The interim scheme
4.168 On 6 March 2000 the Home Office announced that the new arrangements for asylum seekers would be phased in. In-country asylum seekers are not eligible for NASS support and will be supported by LAs under interim arrangements that were introduced in December 1999*. *The Asylum Support (Interim Provisions) Regulations 1999.
4.169 Under the interim provisions support for asylum seekers is to be provided by the Social Services Department (in Scotland, the Social Work Department) of the LA to whom they apply for support.
4.170 Support provided under this scheme replaces that previously available under the National Assistance Act 1948 and (for asylum seekers with children aged under 18) the Children Act 1991. However, unaccompanied children seeking asylum will continue to be supported under the Children Act 1991.
HB/CTB transitional arrangements
4.171 Asylum seekers who applied for asylum before 3 April 2000 will not be supported by NASS. If they were eligible for social security benefits at the time of their claim for HB/CTB they will continue to receive benefit until the first negative decision on their asylum application*.
*Social Security (Immigration and Asylum) Consequential Amendments Regulations 2000
(SI 2000/636), Reg. 12.
4.172 Asylum seekers who applied for asylum before 3 April 2000 and who are not eligible for HB/CTB may be eligible for support from Social Services Departments under the provisions of the interim scheme introduced by the Immigration and Asylum Act 1999*.
*Schedule 9 of the Immigration and Asylum Act 1999.
4.173 Most existing asylum seekers receiving HB or CTB will be protected by the transitional arrangements. Eligibility for HB/CTB will continue until the first negative decision on their asylum application*.
*Social Security (Immigration and Asylum) Consequential Amendments Regulations 2000
(SI 2000/636), Reg. 12(6-8).
4.174 However, people seeking asylum who had been receiving HB/CTB via the so-called ‘loophole’ in the regulations are no longer eligible for these benefits from 3 April 2000. They will now look for support from the interim scheme introduced by the Asylum and Immigration Act 1999.
Home Office determination of asylum applications
4.175 The Immigration and Nationality Department (IND) may decide an asylum application in one of three possible ways
- the asylum seeker may be granted leave to remain in the UK as a refugee. This is granted from the date of the asylum application. The applicant is no longer classed as a PSIC and normal benefit rules and conditions apply. (The applicant may be entitled to arrears of benefit)
- asylum may be refused but humanitarian protection, discretionary leave to enter or remain or exceptional leave to remain in the UK may be granted. This is granted from the date of the decision. The applicant is no longer classed as a PSIC and normal benefit rules and conditions apply from the date of the decision
- asylum may be withdrawn or refused. In this case the asylum seeker is classed as a PSIC with no entitlement to Social Security Benefits
Termination of Home Office support following a decision on the asylum application
4.176 If asylum is granted NASS will continue to provide full support for a 28-day grace period. During this period NASS will help with the transition to the benefit system before that support ends. The asylum seeker can make a claim to HB/CTB at any time from the date of the asylum decision. When the grace period has ended all support from NASS will cease. Take into account asylum support received for any period for which HB/CTB is payable, including the 28 day grace period.
4.177 There are savings rules for successful refugees.* If a claim is made for HB/CTB, the local authority will need to have regard to any unmet Housing or CT liability.
*Social Security (Immigration and Asylum) Consequential Amendments Regulations 2000
(SI 2000/636), Reg. 12(1)(c-d).
4.178 HB/CTB regulations require that if a claimant has moved between different accommodation during application process then one LA will handle the claim made for all previous addresses.
4.179 NASS will issue an NASS 35 Termination of Support letter to asylum seekers when they receive a final decision on their asylum from the Home Office. NASS 35 details all the support that has been provided. See Annex C at the end of this chapter.
Asylum seekers from EU Accession Countries
Asylum seekers currently supported by NASS and LAs
4.180 On 1 May 2004, NASS and LAs withdrew support from the vast majority of asylum seekers who were nationals from the EU Accession Countries. They were not given the usual 28 day grace period nor was an NASS35 issued. The asylum application process will not have been completed so none of them will have been given any form of leave to remain. However, as they are now EEA Nationals they have the right to remain in the UK if they are self-sufficient or as registered workers. As they were not in receipt of an income-related benefit on 30 April 2004, they are not covered by the transitional arrangements in the Social Security (Habitual Residence) Amendment Regulations 2004. There may still be a small number of asylum seekers who are A8 Nationals who are currently receiving support from NASS or an LA pending a Home Office decision as explained below.
4.181 LAs can help any families or single asylum seekers who want to return to their home country. People with children will also be provided with temporary accommodation and a return ticket home. Single people will only be provided with a ticket home.
Identifying NASS and LA supported ex-asylum seekers
4.182 NASS and LAs issued letters notifying asylum seekers of the withdrawal of their support and accommodation from 30 April 2004. The letters also included a leaflet giving information about their rights as EU citizens and the Worker Registration Scheme. NASS support could be continued to avoid a breach of a person’s rights under the European Convention on Human Rights. It was open to anyone in receipt of support to contact the body responsible for providing this to explain why the withdrawal of support would be an infringement of their human rights. NASS continue to support a small number of cases who made such representations and were successful. In addition, a number of accession state nationals who have been in the UK since before October 2000 were eligible for consideration for the grant of indefinite leave to remain (ILR) under the concession for families announced by the Home Secretary in October 2003.
Transitional Protection from 1 May 2004
4.183 The following people including A8 Nationals who are claiming and receiving HB/CTB on 30 April 2004 continue to be entitled on 1 May even if they are in one of the excluded groups. This protection applies to anyone
- entitled to HB/CTB on 30 April 2004, they are not affected by the changes introduced by the new regulations for the duration of the claim
- who makes a claim for HB/CTB on or after 1 May 2004 and it is subsequently determined that their entitlement covers the period including 30 April 2004, they are protected for the duration of the claim
- whose entitlement to HB/CTB is continuous with a period of entitlement to the same or any other specified benefit and the period includes 30 April 2004, they are protected for the duration of their claim. Review claims for HB/CTB which are continuous with a claim including 30 April 2004 are protected. The specified benefits are IS, JSA(IB), Pension Credit, HB/CTB
4.184-4.189
Sponsored immigrants
Background
4.190 Sponsored immigrants are given unlimited leave to enter or remain in the UK on the understanding that they have relatives who are prepared to support them by providing accommodation and day-to-day living expenses. There may occasionally be more than one sponsor. The Home Office requires each sponsor to complete and sign a written maintenance undertaking to acknowledge this. There are no restrictions on their length of stay in the UK.
4.191 Sponsored immigrants who made a new claim for HB/CTB on or after 5 February 1996 were normally excluded from benefit, irrespective of the date of the sponsorship undertaking, except in the following circumstances
- death of the sponsor(s). A sponsored immigrant whose sponsor(s) dies will be eligible to claim HB/CTB at any time, and benefit should be awarded subject to the normal conditions of entitlement. The Home Office will be able to advise whether the immigrant has been sponsored and by whom, except where the maintenance undertaking was obtained
pre-entry at the diplomatic post overseas. However the death of a sponsor is unlikely to be reported to the Home Office, and confirmation will have to be sought from other sources, for example, the immigrant may produce a death certificate, or the sponsor might have been receiving benefit. Sponsored immigrants who claim HB/CTB because their sponsor(s) dies before they have been in the UK for five years need to provide
- passport
- a copy of the maintenance undertaking
- a copy of their sponsor(s) death certificate to confirm their status.
They aren’t subject to the second stage of the HRT
- the sponsored immigrant has been resident in the UK for a minimum of five years. If benefit is claimed under this rule, the five years must be counted from the date of the maintenance undertaking or the date of entry to the UK (whichever is the later). Sponsored immigrants will have access to the full range of social security benefits from a date five years after the appropriate date, irrespective of whether the immigrant applies for naturalisation. The Immigration Status Test will be satisfied because sponsored immigrants have no limits placed on their leave to remain in the UK
4.192 Sponsored immigrants are not subject to the second stage of the HRT.
Identifying sponsored immigrants
4.193 Although it is not specified in legislation the majority of sponsored immigrants are elderly people over the age of 65. Exceptionally the Home Office will allow someone in who is under 65 years old because they are unable to look after themselves. They may have a passport, but it will not be stamped to show that they have entered the UK under a maintenance undertaking. This may only become apparent when conducting the HRT and the Immigration Status Test.
4.194 Once the conditions attached to a person’s leave have been removed by the Home Office and they have been allowed to settle in the UK, the Home Office cannot reimpose conditions.
People temporarily without funds
4.195 People who have limited leave to remain in the UK and have no recourse to public funds are allowed to claim HB/CTB when they are temporarily without funds or remittances from abroad have stopped temporarily. There must be a reasonable expectation that the supply of funds will resume within three months. The payment of HB/CTB is limited to 42 days in any one period of leave.
4.196 To confirm their eligibility for HB/CTB in these circumstances claimants need to supply
- passport with immigration stamp showing entry conditions
- a letter from their bank or other source of funding confirming their temporary lack of funds
4.197-4.209
Claims
Questions to be included on the HB/CTB claim form
4.210 To identify people who may be affected by the Immigration Status Test or the HRT, appropriate questions need to be included on the HB/CTB claim forms. The following questions relate only to claimants and not to any member of their family
‘Have you come to live in the United Kingdom, the Republic of Ireland, the Channel Islands or the Isle of Man in the last two years?’
Answer: No/Yes
If ‘Yes’
‘What is your nationality?’
4.211 Answers to these questions will indicate whether further information is needed to establish the right to reside and habitual residence, while the person’s nationality will show whether you need to enquire about immigration status.
Advising claimants of the possible need to contact the Home Office
4.212 In addition, you will need to advise HB/CTB claimants that there may be a need to contact the Home Office about their terms of entry or stay in the UK. The following sentence should be included on the claim form
‘I understand that the Local Authority may approach the Home Office to check information I have given on this form and to obtain further relevant information’
4.213 The Office of the Data Protection Registrar has been consulted on this matter.
4.214 To ensure that affected claimants notice the advice, it is suggested that this is prominently located next to the questions on the right to reside and habitual residence rather than within the standard declaration at the end of the claim form. It will not be necessary to obtain a claimant’s specific consent to contact the Home Office about their claim.
4.215 To identify sponsored immigrants we suggest that the following question is included on claim forms, after the question relating to the right to reside and habitual residence
| Have you come to live in the United Kingdom as the result of a maintenance undertaking? | |||
| No |
 |
Yes |
|
|
Please tell us about the maintenance undertaking |
|||
| Sponsor's surname | .................................................. | ||
| Other names | .................................................. | ||
| Address |
..................................................
|
||
| Home Office ref no | .................................................. | ||
|
Date of maintenance
undertaking |
.................................................. | ||
4.216 You will need to consider including the declaration about the possible need to contact the Home Office, see Advising the claimant of the possible need to contact the Home Office earlier in this chapter.
Claims from couples/civil partnerships or people living together as civil partners
4.217 Where the claimant is not entitled to HB/CTB because they are a PFA or a PSIC but that person is also a member of a couple, you should consider, ideally during any interview with the claimant, whether a claim should be invited from their partner. This will depend on whether or not the evidence suggests that the partner is a PFA or PSIC.
4.218 If both the claimant and partner are PFA or PSIC neither will be entitled to benefits. When only one partner is excluded, the other partner can claim HB/CTB for both of them in the normal way. In these cases, allow the couple’s personal allowance in full. Aggregate income and resources. When the claimant is not a PFA or PSIC but the partner is an asylum seeker supported by NASS; treat as a couple, do not apply the non-dependent addition, and take the NASS support into account as income. There is no provision to treat the partner who qualifies for benefit as a single person.
4.219 When considering which member of a couple should claim you should note that non-UK spouses of UK nationals are admitted to the UK for a period of two years limited leave, on the understanding that they will not have recourse to public funds, unless they are otherwise eligible for benefit. When the amount of HB is increased as a result of a non-UK spouse’s presence, these will be recourse to public funds. However, LAs are not required to inform the Home Office about this. During this period, the spouse will not satisfy the Immigration Status Test and will not usually be entitled to benefit in their own right. After two years, non-UK spouses can be granted settled status provided that the Home Office is satisfied that the relationship is continuing and they are self-supporting. A person is to be treated as satisfying the Immigration Status Test when settled status has been granted.
4.220 Claims from individual members of a separated couple are to be treated in the normal way, with each having to satisfy the appropriate Habitual Residence and Immigration Status tests.
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