Statutory Instrument 2000 No. 636

The Social Security (Immigration and Asylum) Consequential Amendments Regulations 2000

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STATUTORY INSTRUMENTS

2000 No. 636
SOCIAL SECURITY
The Social Security (Immigration and Asylum) Consequential Amendments Regulations 2000

	Made	7th March 2000
	Laid before Parliament	13th March 2000
	Coming into force	3rd April 2000

The Secretary of State for Social Security, in exercise of the powers conferred upon him by sections 115(3), (4) and (7), 123(5) and (6), 166(3) and 167 of the Immigration and Asylum Act 1999[1], sections 64(1), 68(4), 70(4), 71(6), 123(1)(a), (d) and (e), 135(1), 136(3) and (4), 137(1)[2] and (2)(i) and 175(1), (3) and (4) of the Social Security Contributions and Benefits Act 1992[3], section 5(1)(a) and (b), 189(1) and (4) and 191[4] of the Social Security Administration Act 1992[5], sections 12(1) and (2), 35(1)[6] and 36(2) and (4) of the Jobseekers Act 1995[7] and of all other powers enabling him in that behalf, by this Instrument, which contains only regulations made by virtue of, or consequential upon, the Immigration and Asylum Act 1999 and which is made before the end of the period of six months beginning with the coming into force of that Act[8] and, in so far as they relate to housing benefit and council tax benefit, with the agreement of such organisations appearing to him to be representative of the authorities concerned that consultation should not be undertaken[9] hereby make the following Regulations:

Citation, commencement and interpretation
     1. - (1) These Regulations may be cited as the Social Security (Immigration and Asylum) Consequential Amendments Regulations 2000.

    (2) These Regulations shall come into force on 3rd April 2000.

    (3) In these Regulations-

"the Act" means the Immigration and Asylum Act 1999;

"the Attendance Allowance Regulations" means the Social Security (Attendance Allowance) Regulations 1991[

(4) In these Regulations, unless the context otherwise requires, a reference-

Persons not excluded from specified benefits under section 115 of the Immigration and Asylum Act 1999
     2. - (1) For the purposes of entitlement to income-based jobseeker's allowance, income support, a social fund payment, housing benefit or council tax benefit under the Contributions and Benefits Act, as the case may be, a person falling within a category or description of persons specified in Part I of the Schedule is a person to whom section 115 of the Act does not apply.

    (2) For the purposes of entitlement to attendance allowance, severe disablement allowance, invalid care allowance, disability living allowance, a social fund payment or child benefit under the Contributions and Benefits Act, as the case may be, a person falling within a category or description of persons specified in Part II of the Schedule is a person to whom section 115 of the Act does not apply.

    (3) For the purposes of entitlement to child benefit, attendance allowance or disability living allowance under the Contributions and Benefits Act, as the case may be, a person in respect of whom there is an Order in Council made under section 179 of the Social Security Administration Act 1992 giving effect to a reciprocal agreement in respect of one of those benefits, as the case may be, is a person to whom section 115 of the Act does not apply.

    (4) For the purposes of entitlement to-

(a) income support, a social fund payment, housing benefit or council tax benefit under the Contributions and Benefits Act, as the case may be, a person who is entitled to or is receiving benefit by virtue of paragraph (1) or (2) of regulation 12 of the Persons from Abroad Regulations is a person to whom section 115 of the Act does not apply;

(b) attendance allowance, disability living allowance, invalid care allowance, severe disablement allowance, a social fund payment or child benefit under the Contributions and Benefits Act, as the case may be, a person who is entitled to or is receiving benefit by virtue of paragraph (10) of regulation 12 is a person to whom section 115 of the Act does not apply.

    (5) For the purposes of entitlement to income support by virtue of regulation 70 of the Income Support Regulations (urgent cases), to jobseeker's allowance by virtue of regulation 147 of the Jobseeker's Allowance Regulations (urgent cases) or to a social fund payment under the Contributions and Benefits Act, as the case may be, a person to whom regulation 12(3) applies is a person to whom section 115 of the Act does not apply.

    (6) For the purposes of entitlement to housing benefit, council tax benefit or a social fund payment under the Contributions and Benefits Act, as the case may be, a person to whom regulation 12(6) applies is a person to whom section 115 of the Act does not apply.

Amendment of the Income Support Regulations
     3. - (1) The Income Support Regulations shall be amended in accordance with the following provisions of this regulation.

    (2) In regulation 2(1) (interpretation)-

(a) after the definition of "housing benefit expenditure" there shall be inserted the following definition-

" "Immigration and Asylum Act" means the Immigration and Asylum Act 1999[

(3) In paragraph (3)(a) of regulation 4ZA[22], for the words " regulation 70(3)(a)" there shall be substituted the words "paragraph 1 of Part I of the Schedule to the Social Security (Immigration and Asylum) Consequential Amendments Regulations 2000".

(4) In regulation 21 (special cases)-

" "partner of a person subject to immigration control" means a person-

(d) in paragraph (3) in the second definition of "person from abroad" the word "also" shall be omitted.

(5) For regulation 21ZA (treatment of refugees)[23] after the heading there shall be substituted the following regulation-

21ZB.

(6) In regulation 40 (calculation of income other than earnings)-

(7) In regulation 70 (urgent cases)-

(b) after paragraph (2) there shall be inserted the following paragraph-

(8) In regulation 71 (applicable amounts in urgent cases)-

(9) In Schedule 1B (prescribed categories of person)-

18A.

(10) After paragraph 16 of Schedule 7 (applicable amounts in special cases)-

Partner of a person subject to immigration control

16A.

(b) in column (2) there shall be inserted the following paragraph-

" 16A.

(11) In paragraph 17 of Schedule 7 (applicable amounts in special cases) for the words in column (1) there shall be substituted the words "person from abroad" and for the words in column (2) there shall be substituted the word "nil".

(12) In paragraph 21 of Schedule 9 (treatment of income in kind)[27]-

" regulation 40(4)(b) (provision of support under section 95 or 98 of the Immigration and Asylum Act including support provided by virtue of regulations made under Schedule 9 to that Act in the calculation of income other than earnings) or";

    (13) In paragraph 57 of Schedule 9 (disregards in the calculation of income other than earnings) and paragraph 49 of Schedule 10 (capital to be disregarded) for the words "regulation 21ZA" there shall be substituted the words " regulation 21ZB".

Amendment of the Jobseeker's Allowance Regulations
     4. - (1) The Jobseeker's Allowance Regulations shall be amended in accordance with the following provisions of this regulation.

    (2) In regulation 1(3) (interpretation) after the definition of "housing benefit expenditure" there shall be inserted the following definition-

" "Immigration and Asylum Act" means the Immigration and Asylum Act 1999[

(3) In regulation 85(4) (special cases)-

" "partner of a person subject to immigration control" means a person-

(4) In regulation 103(6) (calculation of income other than earnings)[29] for the words following "paragraph (1)" there shall be substituted the following sub-paragraphs-

(5) In regulation 147 (urgent cases)-

(b) after paragraph (2) there shall be inserted the following paragraph-

(6) In regulation 148(1)(d) (applicable amount in urgent cases) for the words " paragraph 14" there shall be substituted the words "paragraph 13A".

(7) After paragraph 13 of Schedule 5 (applicable amounts in special cases)-

Partner of a person subject to immigration control

13A.

(b) in column (2) there shall be inserted the following paragraph-

" 13A.

(8) In paragraph 14 of Schedule 5, for the words in column (1) there shall be substituted the words "person from abroad" and for the words in column (2) there shall be substituted the word "nil".

(9) In paragraph 22 of Schedule 7 (treatment of income in kind)-

(a) in sub-paragraph (1) for the words "Subject to sub-paragraph (2)" there shall be substituted the words "Subject to sub-paragraphs (2) and (3)";

(b) in sub-paragraph (1) after the words "except where" there shall be added the following words-

" regulation 103(6)(b) (provision of support under section 95 or 98 of the Immigration and Asylum Act including support provided by virtue of regulations made under Schedule 9 to that Act in the calculation of income other than earnings) or"; and

" (3) The first exception under sub-paragraph (1) shall not apply where the claimant is the partner of a person subject to immigration control and whose partner is receiving support provided under section 95 or 98 of the Immigration and Asylum Act including support provided by virtue of regulations made under Schedule 9 to that Act and the income in kind is support provided in respect of essential living needs of the partner of the claimant and his dependants (if any) as is specified in regulations made under paragraph 3 of Schedule 8 to the Immigration and Asylum Act.".

Amendment of the Claims and Payments Regulations
     5. - (1) The Claims and Payments Regulations shall be amended in accordance with the following provisions of this regulation.

    (2) In paragraph (3C) of regulation 4 (making a claim for benefit)[30] for the words "regulation 21ZA(2)" there shall be substituted the words " regulation 21ZB(2)".

    (3) In paragraph (4D) of regulation 6[31] (date of claim) for sub-paragraphs (a) and (b) there shall be substituted the following words-

" on the date on which his claim for asylum was recorded by the Secretary of State as having been made.".

    (4) In paragraph (8) of regulation 19 (time for claiming benefit) for the words "regulation 21ZA(2)" there shall be substituted the words "regulation 21ZB".

Amendment of the Housing Benefit Regulations
     6. - (1) The Housing Benefit Regulations shall be amended in accordance with the following provisions of this regulation.

    (2) In regulation 2(1) (interpretation) after the definition of "housing association" there shall be inserted the following definition-

" "Immigration and Asylum Act" means the Immigration and Asylum Act 1999[

(3) In regulation 7A (persons from abroad)-

(4) In paragraph (4) of regulation 33 (calculation of income other than earnings) for the words following "paragraph (1)" there shall be substituted the following sub-paragraphs-

(5) In Schedule A1 (treatment of claims for housing benefit by refugees)-

" on the date on which his claim for asylum was recorded by the Secretary of State as having been made.";

Appropriate authority to whom a claim for housing benefit by a refugee shall be made and time for making a claim

2A.

- (1) A claim for housing benefit made by a refugee on or after 3rd April 2000 for the relevant period may be made to the appropriate authority for the area in which the dwelling which the claimant occupied as his home was situate and in respect of which he was liable to make payments.

    (2) Where the claimant has occupied more than one dwelling as his home in the relevant period, only one claim for housing benefit shall be made in respect of that period and such a claim shall be made to the authority for the area in which the dwelling occupied by the refugee is situate and in respect of which he was liable to make payments when, after he is notified that he has been recorded by the Secretary of State as a refugee, he makes a claim for housing benefit.

    (3) The appropriate authority to which a claim for housing benefit is made in accordance with this paragraph, shall determine the claimant's entitlement to that benefit for the whole of the relevant period.

    (4) A claim for housing benefit to which this paragraph refers, shall be made within 28 days of a claimant receiving notification from the Secretary of State that he has been recorded as a refugee.

    (5) Regulation 72(15) of these Regulations (backdating of claims) shall not have effect with respect to claims to which this Schedule applies."; and

(d) paragraph 2 shall be omitted.

(6) In paragraph 21 of Schedule 4 (treatment of income in kind) after the words "income in kind" there shall be added the following words-

" except where regulation 33(4)(b) (provision of support under section 95 or 98 of the Immigration and Asylum Act in the calculation of income other than earnings) applies".

    (7) In paragraph 62 of Schedule 4 and paragraph 51 of Schedule 5 for the words " regulation 21ZA" there shall be substituted the words "regulation 21ZB ".

Amendment of the Council Tax Benefit Regulations
     7. - (1) The Council Tax Benefit Regulations shall be amended in accordance with the following provisions of this regulation.

    (2) In regulation 2(1) (interpretation) after the definition of "housing benefit" there shall be inserted the following definition-

" "Immigration and Asylum Act" means the Immigration and Asylum Act 1999[

(3) In regulation 4A-

(4) In paragraph (5) of regulation 24 (calculation of income other than earnings) for the words following "paragraph (1)" there shall be substituted the following sub-paragraphs-

(5) In Schedule A1 (treatment of claims for council tax benefit by refugees)-

" on the date on which his claim for asylum was recorded by the Secretary of State as having been made.";

Appropriate authority to whom a claim for council tax benefit by a refugee shall be made and time for making a claim

2A.

- (1) A claim for council tax benefit made by a refugee on or after 3rd April 2000 for the relevant period may be made to the appropriate authority for the area in which the dwelling which the claimant occupied as his home was situate and in respect of which he was liable for council tax.

    (2) Where the claimant has occupied more than one dwelling as his home in the relevant period, only one claim for council tax benefit shall be made in respect of that period and such a claim shall be made to the authority for the area in which the dwelling occupied by the refugee is situate and in respect of which he was liable to make payments when, after he is notified that he has been recorded by the Secretary of State as a refugee, he makes a claim for council tax benefit.

    (3) The appropriate authority to which a claim for council tax benefit is made in accordance with this paragraph, shall determine the claimant's entitlement to that benefit for the whole of the relevant period.

    (4) A claim for council tax benefit to which this paragraph refers, shall be made within 28 days of a claimant receiving notification from the Secretary of State that he has been recorded as a refugee.

    (5) Regulation 72(15) of these Regulations (backdating of claims) shall not have effect with respect to claims to which this Schedule applies."; and

(d) paragraph 2 shall be omitted.

(6) In paragraph 22 of Schedule 4 (treatment of income in kind) after the words "income in kind" there shall be added the following words-

" except where regulation 24(5) (provision of support under section 95 or 98 of the Immigration and Asylum Act in the calculation of income other than earnings) applies".

    (7) In paragraph 62 of Schedule 4 and paragraph 51 of Schedule 5 for the words " regulation 21ZA" there shall be substituted the words "regulation 21ZB ".

Amendment of the Invalid Care Allowance Regulations
     8. - (1) The Invalid Care Allowance Regulations shall be amended in accordance with the following provisions of this regulation.

    (2) In regulation 9(1) for sub-paragraph (aa) there shall be substituted the following sub-paragraph-

" (ia) he is not a person subject to immigration control within the meaning of section 115(9) of the Immigration and Asylum Act 1999[

    (3) Paragraph (1A) of regulation 9 shall be omitted.

Amendment of the Severe Disablement Allowance Regulations
     9. - (1) The Severe Disablement Allowance Regulations shall be amended in accordance with the following provisions of this regulation.

    (2) In regulation 3(1) for head (ia) of sub-paragraph (a) there shall be substituted the following head-

" (ib) he is not a person subject to immigration control within the meaning of section 115(9) of the Immigration and Asylum Act 1999[

    (3) Paragraph (1B) of regulation 3 shall be omitted.

Amendment of the Attendance Allowance Regulations
     10. - (1) The Attendance Allowance Regulations shall be amended in accordance with the following provisions of this regulation.

    (2) In regulation 2(1) for head (ia) of sub-paragraph (a) there shall be substituted the following head-

" (ib) he is not a person subject to immigration control within the meaning of section 115(9) of the Immigration and Asylum Act 1999[

    (3) Paragraph (1A) of regulation 2 shall be omitted.

Amendment of the Disability Living Allowance Regulations
     11. - (1) The Disability Living Allowance Regulations shall be amended in accordance with the following provisions of this regulation.

    (2) In regulation 2(1) for head (ia) of sub-paragraph (a) there shall be substituted the following head-

" (ib) he is not a person subject to immigration control within the meaning of section 115(9) of the Immigration and Asylum Act 1999[

    (3) Paragraph (1A) of regulation 2 shall be omitted.

Transitional arrangements and savings
     12. - (1) Paragraph (2) shall apply where, in relation to a claim for income support, a social fund payment, housing benefit or council tax benefit, as the case may be, a person has submitted a claim for asylum on or before 2nd April 2000 and is notified that he has been recorded by the Secretary of State as a refugee within the definition in Article 1 of the Convention relating to the Status of Refugees done at Geneva on 28th July 1951 as extended by Article 1(2) of the Protocol relating to the Status of Refugees done at New York on 31st January 1967.

    (2) Where this paragraph applies-

(a) regulation 21ZA of the Income Support Regulations (treatment of refugees) shall continue to have effect as if regulation 3(4)(a), (5) and (9) had not been made;

(b) regulations 4(3C), 6(4D) and 19(8) of the Claims and Payments Regulations shall continue to have effect as if regulation 5 had not been made;

(c) paragraphs 1 and 2 of Schedule A1, paragraph 62 of Schedule 4 and paragraph 51 of Schedule 5 to the Housing Benefit Regulations (treatment of claims for housing benefit by refugees) shall continue to have effect as if regulation 6(5) and (7) had not been made; and

(d) paragraphs 1 and 2 of Schedule A1, paragraph 62 of Schedule 4 and paragraph 51 of Schedule 5 to the Council Tax Benefit Regulations (treatment of claims for council tax benefit by refugees) shall continue to have effect as if regulation 7(5) and (7) had not been made.

(3) Regulation 70 of the Income Support Regulations and regulation 147 of the Jobseeker's Allowance Regulations, as the case may be, shall apply to a person who is an asylum seeker within the meaning of paragraph (4) who has not ceased to be an asylum seeker by virtue of paragraph (5).

(4) An asylum seeker within the meaning of this paragraph is a person who-

(a) submits on his arrival (other than on his re-entry) in the United Kingdom from a country outside the Common Travel Area a claim for asylum on or before 2nd April 2000 to the Secretary of State that it would be contrary to the United Kingdom's obligations under the Convent for him to be removed or required to leave, the United Kingdom and that claim is recorded by the Secretary of State as having been made before that date; or

(b) on or before 2nd April 2000 becomes, while present in Great Britain, an asylum seeker when-

(c) in the case of a claim for jobseeker's allowance, holds a work permit or has written authorisation from the Secretary of state permitting him to work in the United Kingdom.

    (5) A person ceases to be an asylum seeker for the purposes of this paragraph when his claim for asylum is recorded by the Secretary of State as having been decided (other than on appeal) or abandoned.

    (6) For the purposes of regulation 7A of the housing Benefit Regulations and regulation 4A of the Council Tax Benefit Regulations, a person who is an asylum seeker within the meaning of paragraph (7) who has not ceased to be an asylum seeker by virtue of paragraph (8), is not a person from abroad within the meaning of paragraph (1) of those regulations.

    (7) An asylum seeker within the meaning of this paragraph is a person who-

(a) submits on his arrival (other than on his re-entry) in the United Kingdom from a country outside the Common Travel Area a claim for asylum on or before 2nd April 2000 to the Secretary of State that it would be contrary to the United Kingdom's obligations under the Convention for him to be removed or required to leave, the United Kingdom and that claim is recorded by the Secretary of State has having been made before that date, or

(b) on or before 2nd April 2000 becomes, while present in Great Britain, an asylum seeker when-

    (8) A person ceases to be an asylum seeker for the purposes of this paragraph when his claim for asylum is recorded by the Secretary of State as having been decided (other than on appeal) or abandoned.

    (9) In paragraphs (4) and (7) "the Common Travel Area" means the United Kingdom, the Channel Islands, the Isle of Man and the Republic of Ireland collectively and "the Convention" means the Convention relating to the Status of Refugees done at Geneva on 28th July 1951 as extended by Article 2(1) of the Protocol relating to the Status of Refugees done at New York on 31st January 1967.

    (10) Where, before the coming into force of these Regulations, a person has claimed benefit to which he is entitled or is receiving benefit by virtue of regulation 12(3) of the Persons from Abroad Regulations or regulation 14B(g) of the Child Benefit (General) Regulations 1976[38], as the case may be, those provisions shall continue to have effect, for the purposes of entitlement to attendance allowance, disability living allowance, invalid care allowance, severe disablement allowance or child benefit, as the case may be, until such time as-

as if regulations 8, 9, 10 and 11 and paragraph (2) or paragraph (3), as the case may be, of regulation 13, had not been made.

(11) In the Persons from Abroad Regulations-

Revocations
     13. - (1) The provisions specified in the following paragraphs of this regulation are revoked.

    (2) Regulation 12(3) of the Persons from Abroad Regulations.

    (3) Regulation 14B of the Child Benefit (General) Regulations 1976.

Signed by authority of the Secretary of State for Social Security.

Hugh Bayley
Parliamentary Under-Secretary of State, Department of Social Security

7th March 2000

SCHEDULERegulation 2

PERSONS NOT EXCLUDED FROM CERTAIN BENEFITS UNDER SECTION 115 OF THE IMMIGRATION AND ASYLUM ACT 1999

PART I
Persons not excluded under section 115 of the Immigration and Asylum Act from entitlement to income-based jobseeker's allowance, income support, a social fund payment, housing benefit or council tax benefit
1. A person who-

during that period of limited leave; and

(b) having, during any one period of limited leave (including any such period as extended), supported himself without recourse to public funds, other than any such recourse by reason of the previous application of this sub-paragraph, is temporarily without funds during that period of leave because remittances to him from abroad have been disrupted, provided there is a reasonable expectation that his supply of funds will be resumed.

2. A person who has been given leave to enter or remain in, the United Kingdom by the Secretary of State upon an undertaking by another person or persons pursuant to the immigration rules within the meaning of the Immigration Act 1971, to be responsible for his maintenance and accommodation and who has not been resident in the United Kingdom for a period of at least five years beginning on the date of entry or the date on which the undertaking was given in respect of him, whichever date is the later and the person or persons who gave the undertaking to provide for his maintenance and accommodation has, or as the case may be, have died

3. A person who-

4. A person who is a national of a state which has ratified the European Convention on Social and Medical Assistance (done in Paris on 11th December 1953[40]) or a state which has ratified the Council of Europe Social Charter (signed in Turin on 18th October 1961) and who is lawfully present in the United Kingdom.

PART II
Persons not excluded under section 115 of the Immigration and Asylum Act from entitlement to attendance allowance, severe disablement allowance, invalid care allowance, disability living allowance a social fund payment or child benefit
     1. A member of a family of a national of a State contracting party to the Agreement on the European Economic Area signed at Oporto on 2nd May 1992 as adjusted by the Protocol signed at Brussels on 17th March 1993[41].

     2. A person who is lawfully working in Great Britain and is a national of a State with which the Community has concluded an agreement under Article 310[42] of the Treaty of Amsterdam amending the Treaty on European Union, the Treaties establishing the European Communities and certain related Acts[43] providing, in the field of social security, for the equal treatment of workers who are nationals of the signatory State and their families.

     3. A person who is a member of a family of, and living with, a person specified in paragraph 2.

     4. A person who has been given leave to enter, or remain in, the United Kingdom by the Secretary of State upon an undertaking by another person or persons pursuant to the immigration rules within the meaning of the Immigration Act 1971, to be responsible for his maintenance and accommodation.