The Tax Credits (Immigration) Regulations 2003

Exclusion of persons subject to immigration control from entitlement to tax credits U.K.

3.—(1) No person is entitled to child tax credit or working tax credit while he is a person subject to immigration control, except in the following Cases, and subject to paragraphs (2) to (9).

Case 1

He is a person who–

(a) has been given leave to enter, or remain in, the United Kingdom by the Secretary of State upon the undertaking of another person or persons, pursuant to the immigration rules, to be responsible for his maintenance and accommodation, and

(b) has been resident in the United Kingdom for a period of at least 5 years commencing on or after the date of his entry into the United Kingdom, or the date on which the undertaking was given in respect of him, whichever is the later.

Case 2

He is a person who—

(a) falls within the terms of paragraph (a) of Case 1, and

(b) has been resident in the United Kingdom for less than the 5 years mentioned in paragraph (b) of Case 1,

but the person giving the undertaking has died or, where the undertaking was given by more than one person, they have all died.

Case 3

He is a person who satisfies the following conditions—

(a) he has limited leave to enter or remain in the United Kingdom;

(b) that leave was subject to a condition that he does not have recourse to public funds, during that period of limited leave;

(c) he has, during so much as has elapsed of that period of limited leave (including that period as extended), supported himself without recourse to public funds, other than any such recourse by reason of the previous satisfaction of these conditions;

(d) he is temporarily without funds during that period of leave because remittances to him from abroad have been disrupted;

(e) there is a reasonable expectation that his supply of funds will be resumed; and

(f) the period (or aggregate of periods) for which this Case applies does not exceed 42 days during any single period of limited leave (including any extension to that period).

Case 4

Where the claim is for working tax credit, he is—

(a) a national of a state which has ratified the European Convention on Social and Medical Assistance (done in Paris on 11th December 1953) M1 or of a state which has ratified the Council of Europe Social Charter (signed in Turin on 18th October 1961), and

(b) lawfully present in the United Kingdom.

The Case so described also applies where—

(a) the claim is for child tax credit,

(b) the award of child tax credit would be made on or after 6th April 2004, and

(c) immediately before the award is made (and as part of the transition of claimants entitled to elements of income support and income-based jobseeker’s allowance, to child tax credit) the person is, or will on the making of a claim be, entitled to any of the amounts in relation to income support or income-based jobseeker’s allowance which are described in section 1(3)(d) of the Act.

Case 5

Where the claim is for child tax credit, he is—

(a) a person who is lawfully working in the United Kingdom, and

(b) a national of a State with which the Community has concluded an Agreement under Article 310 of the Treaty of Amsterdam amending the Treaty on European Union, the Treaties establishing the European Communities and certain related Acts providing, in the field of social security, for the equal treatment of workers who are nationals of the signatory State and their families M2 .

(2) Where one member of a married couple or unmarried couple is a person subject to immigration control, and the other member is not or is within any of Cases 1 to 5 or regulation 5—

(a) the calculation of the amount of tax credit under the Act, the Child Tax Credit Regulations and the Working Tax Credit Regulations (including any second adult element or other element in respect of, or determined by reference to, that person),

(b) the method of making (or proceeding with) a joint claim by the couple, and

(c) the method of payment of the tax credit,

shall, subject to paragraph (3), be determined in the same way as if that person were not subject to such control.

(3) Where the other member is within Case 4 or 5 or regulation 5, paragraph (2) shall only apply to the tax credit to which he (in accordance with those provisions) is entitled.

(4) Where a person has submitted a claim for asylum as a refugee and in consequence is a person subject to immigration control, in the first instance he is not entitled to tax credits, subject to paragraphs (5) to (9).

(5) If that person—

(a) is notified that he has been recorded by the Secretary of State as a refugee, and

(b) claims tax credit within 3 months of receiving that notification,

paragraphs (6) to (9) and regulation 4 shall apply to him.

(6) He shall be treated as having claimed tax credits—

(a) on the date when he submitted his claim for asylum, and

(b) on every 6th April (if any) intervening between the date in sub-paragraph (a) and the date of the claim referred to in paragraph (5)(b),

rather than on the date on which he makes the claim referred to in paragraph (5)(b).

(7) Regulations 7 and 8 of the Tax Credits (Claims and Notifications) Regulations 2002 M3 shall not apply to claims treated as made by virtue of paragraph (6).

(8) He shall have his claims for tax credits determined as if he had been recorded as a refugee on the date when he submitted his claim for asylum.

(9) The amount of support provided under—

(a) section 95 or 98 of the Immigration and Asylum Act 1999,

(b) regulations made under Schedule 9 to that Act, by the Secretary of State in respect of essential living needs of the claimant and his dependants (if any), or

(c) regulations made under paragraph 3 of Schedule 8 to that Act,

(after allowing for any deduction for that amount under regulation 21ZB(3) of the Income Support (General) Regulations 1987 M4 ) shall be deducted from any award of tax credits due to the claimant by virtue of paragraphs (6) and (8).

Marginal Citations

M1 Cmd 9512.

M2 Article 310 EC (ex Article 238) and OJ No. C340, 10.11.97, p. 1.

M3 S.I. 2002/2014.

M4 S.I. 1987/1967; regulation 21ZB was inserted by regulation 3(5) of S.I. 2000/636.