The Jobseeker’s Allowance Regulations 1996

Changes over time for: Section 85A

Version Superseded: 16/09/2021

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Point in time view as at 31/12/2020. This version of this provision has been superseded.

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[F1Special cases: supplemental – persons from abroad

85A.—(1) “Person from abroad” means, subject to the following provisions of this regulation, a claimant who is not habitually resident in the United Kingdom, the Channel Islands, the Isle of Man or the Republic of Ireland.

[F2(2) No claimant shall be treated as habitually resident in the United Kingdom, the Channel Islands, the Isle of Man or the Republic of Ireland unless—

(a)[F3subject to the exceptions in paragraph (2A),] the claimant has been living in any of those places for the past three months; and

(b)the claimant has a right to reside in any of those places, other than a right to reside which falls within paragraph (3) [F4or (3A)].]

[F5(2A) The exceptions are where the claimant has at any time during the period referred to in paragraph (2)(a)—

(a)paid either Class 1 or Class 2 contributions by virtue of regulation 114, 118, 146 or 147 of the Social Security (Contributions) Regulations 2001or by virtue of an Order in Council having effect under section 179 of the Social Security Administration Act 1992; or

(b)been a Crown servant posted to perform overseas the duties of a Crown servant; or

(c)been a member of Her Majesty’s forces posted to perform overseas the duties of a member of Her Majesty’s forces.]

(3) A right to reside falls within this paragraph if it is one which exists by virtue of, or in accordance with, one or more of the following—

(a)regulation 13 of the [F6Immigration (European Economic Area) Regulations 2016] ; [F7or] F8...

[F9(aa)regulation 16 of those Regulations, but only in a case where the right exists under that regulation because the claimant satisfies the criteria in paragraph (5) of that regulation;]

F10(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F10(c). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[F11(3A) A right to reside falls within this paragraph if it exists by virtue of a claimant having been granted limited leave to enter, or remain in, the United Kingdom under the Immigration Act 1971 by virtue of—

(a)Appendix EU to the immigration rules made under section 3(2) of that Act; F12...

(b)being a person with a Zambrano right to reside as defined in Annex 1 of Appendix EU to the immigration rules made under section 3(2) of that Act [F13; or]

(c)having arrived in the United Kingdom with an entry clearance that was granted under Appendix EU (Family Permit) to the immigration rules made under section 3(2) of that Act.]

[F14(3B) Paragraph (3A)(a) does not apply to a person who—

(a)has a right to reside granted by virtue of being a family member of a relevant person of Northern Ireland; and

(b)would have a right to reside under the Immigration (European Economic Area) Regulations 2016 if the relevant person of Northern Ireland were an EEA national, provided that the right to reside does not fall within paragraph (3A).]

(4) A claimant is not a person from abroad if he is—

[F15(za)a qualified person for the purposes of regulation 6 of the [F16Immigration (European Economic Area) Regulations 2016] as a worker or a self-employed person;

(zb)a family member of a person referred to in sub-paragraph (za) F17...;

(zc)a person who has a right to reside permanently in the United Kingdom by virtue of regulation 15(1)(c), (d) or (e) of those Regulations;]

[F18(zd)a family member of a relevant person of Northern Ireland, with a right to reside which falls within paragraph (3A)(a), provided that the relevant person of Northern Ireland falls within sub-paragraph (za), or would do so but for the fact that they are not an EEA national;]

[F19(ze)a frontier worker within the meaning of regulation 3 of the Citizens' Rights (Frontier Workers) (EU Exit) Regulations 2020;

(zf)a family member, of a person referred to in sub-paragraph (ze), who has been granted limited leave to enter, or remain in, the United Kingdom by virtue of Appendix EU to the immigration rules made under section 3(2) of the Immigration Act 1971;]

(g)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;

[F20(h)a person who has been granted leave or who is deemed to have been granted leave outside the rules made under section 3(2) of the Immigration Act 1971 where that leave is—

(i)discretionary leave to enter or remain in the United Kingdom;

(ii)leave to remain under the Destitution Domestic Violence concession; or

(iii)leave deemed to have been granted by virtue of regulation 3 of the Displaced Persons (Temporary Protection) Regulations 2005;]

[F21(hh)a person who has humanitarian protection granted under those rules;] [F22or]

(i)a person who is not a person subject to immigration control within the meaning of section 115(9) of the Immigration and Asylum Act and who is in the United Kingdom as a result of his deportation, expulsion or other removal by compulsion of law from another country to the United Kingdom; F23...

F24(j). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .]

F24(k). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[F25(5) In this regulation—

“EEA national” has the meaning given in regulation 2(1) of the Immigration (European Economic Area) Regulations 2016;

“family member” has the meaning given in regulation 7(1)(a), (b) or (c) of the Immigration (European Economic Area) Regulations 2016 except that regulation 7(4) of those Regulations does not apply for the purposes of paragraphs (3B) and (4)(zd);

“relevant person of Northern Ireland” has the meaning given in Annex 1 of Appendix EU to the immigration rules made under section 3(2) of the Immigration Act 1971.]

[F26(6) In this regulation references to the Immigration (European Economic Area) Regulations 2016 are to be read with Schedule 4 to the Immigration and Social Security Co-ordination (EU Withdrawal) Act 2020(Consequential, Saving, Transitional and Transitory Provisions) Regulations 2020.]

Textual Amendments

F1Reg. 85A inserted (30.4.2006) by The Social Security (Persons from Abroad) Amendment Regulations 2006 (S.I. 2006/1026), regs. 1, 7(3) (with reg. 11(2))

F2Reg. 85A(2) substituted (1.1.2014) by The Jobseeker’s Allowance (Habitual Residence) Amendment Regulations 2013 (S.I. 2013/3196), regs. 1, 2 (with reg. 3)

F3Words in reg. 85A(2)(a) inserted (9.11.2014) by The Jobseeker’s Allowance (Habitual Residence) Amendment Regulations 2014 (S.I. 2014/2735), regs. 1, 3(2) (with reg. 4)

F4Words in reg. 85A(2)(b) inserted (7.5.2019) by The Social Security (Income-related Benefits) (Updating and Amendment) (EU Exit) Regulations 2019 (S.I. 2019/872), regs. 1, 3(2)(a)

F5Reg. 85A(2A) inserted (9.11.2014) by The Jobseeker’s Allowance (Habitual Residence) Amendment Regulations 2014 (S.I. 2014/2735), regs. 1, 3(3) (with reg. 4)

F6Words in reg. 85A(3)(a) substituted (7.5.2019) by The Social Security (Income-related Benefits) (Updating and Amendment) (EU Exit) Regulations 2019 (S.I. 2019/872), regs. 1, 3(2)(b)

F7Word in reg. 85A(3)(a) inserted (31.12.2020) by The Immigration and Social Security Co-ordination (EU Withdrawal) Act 2020 (Consequential, Saving, Transitional and Transitory Provisions) (EU Exit) Regulations 2020 (S.I. 2020/1309), regs. 1(2), 55(2)(a)(i)

F8Word in reg. 85A(3)(a) omitted (8.11.2012) by virtue of The Social Security (Habitual Residence) (Amendment) Regulations 2012 (S.I. 2012/2587), regs. 1, 3(2)

F9Reg. 85A(3)(aa) substituted (7.5.2019) by The Social Security (Income-related Benefits) (Updating and Amendment) (EU Exit) Regulations 2019 (S.I. 2019/872), regs. 1, 3(2)(c)

F10Reg. 85A(3)(b)(c) omitted (31.12.2020) by virtue of The Immigration and Social Security Co-ordination (EU Withdrawal) Act 2020 (Consequential, Saving, Transitional and Transitory Provisions) (EU Exit) Regulations 2020 (S.I. 2020/1309), regs. 1(2), 55(2)(a)(ii)

F11Reg. 85A(3A) inserted (7.5.2019) by The Social Security (Income-related Benefits) (Updating and Amendment) (EU Exit) Regulations 2019 (S.I. 2019/872), regs. 1, 3(2)(d)