PART 5Residence and Presence Conditions

Residence and presence conditions15.

(1)

An individual satisfies the residence and presence conditions where on any day that individual—

(a)

is ordinarily resident in Scotland,

(b)

is habitually resident in the common travel area,

(c)

is not a person subject to immigration control within the meaning of section 115(9) of the Immigration and Asylum Act 199924,

(d)

is present in the common travel area, and

(e)

has been present in the common travel area for a period of, or for periods amounting in the aggregate to, not less than 26 weeks out of the 52 weeks immediately preceding that day.

(2)

In this Part, “common travel area” has the meaning given in section 1(3) of the Immigration Act 197125.

(3)

The residence condition set out in paragraph (1)(a) does not apply in relation to the daily living component where on any day the individual—

(a)

is habitually resident in Ireland,

(b)

has a genuine and sufficient link to Scotland, and

(c)

is an individual—

(i)

to whom the Convention on Social Security between the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of Ireland signed at Dublin on 1 February 201926, as modified from time to time in accordance with any provision of it, applies, and

(ii)

in respect of whom the United Kingdom is, as a result, competent for payment of long term care benefits.

(4)

The reference in paragraph (3)(b) to an individual’s link to Scotland being sufficient is to it being sufficiently close that if the individual were not entitled to Adult Disability Payment, paragraph (3) would be incompatible with the Convention on Social Security between the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of Ireland signed at Dublin on 1 February 2019.

(5)

Paragraph (1)(c) does not apply to a person subject to immigration control within the meaning of section 115(9) of the Immigration and Asylum Act 1999 where the person—

(a)

is lawfully working in United Kingdom and is a national of a state with which the United Kingdom has concluded an agreement which replaces in whole or in part an agreement under Article 217 of the Treaty on the Functioning of the European Union27 which has ceased to apply to, and in, the United Kingdom, providing, in the field of social security, for the equal treatment of workers who are nationals of the signatory state and their families,

(b)

is a member of the family of, and living with, a person specified in sub-paragraph (a), or

(c)

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, to be responsible for their maintenance and accommodation.

(6)

The past presence condition in paragraph (1)(e) does not apply where an individual has a terminal illness within the meaning of regulation 26.

(7)

The residence and presence conditions set out in paragraphs (1)(b) and (1)(e) do not apply where an individual is a person who—

(a)

has leave to enter or remain in the United Kingdom granted under the immigration rules by virtue of—

(i)

the Afghan Relocations and Assistance Policy, or

(ii)

the previous scheme for locally-employed staff in Afghanistan (sometimes referred to as the ex-gratia scheme),

(b)

has been granted discretionary leave outside the immigration rules as a dependant of a person referred to in sub-paragraph (a), F1...

(c)

has leave granted under the Afghan Citizens Resettlement Scheme, F2or

(d)

has leave to enter or remain in the United Kingdom granted under or outside the immigration rules, F3has a right of abode in the United Kingdom within the meaning given in section 2 of the Immigration Act 1971 24 F4or does not require leave to enter or remain in the United Kingdom in accordance with section 3ZA of that Act, where the individual—

(i)

was residing in Ukraine immediately before 1 January 2022, and

(ii)

left Ukraine in connection with the Russian invasion which took place on 24 February 2022

(8)

For the purposes of paragraph (7), “the Afghan Citizens Resettlement Scheme” means the scheme announced by the United Kingdom Government on 18 August 202128.