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)
(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)
(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)
(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)
(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), or
(c)
has leave granted under the Afghan Citizens Resettlement Scheme.