6.—(1) Where, immediately before the coming into force of the Consolidating Regulations, a person is entitled to council tax benefit or, as the case may be, housing benefit, by virtue of regulation 12(1) of the Social Security (Persons From Abroad) Miscellaneous Amendments Regulations 1996 M1 (“the 1996 Regulations”), the modifications specified in relation to council tax benefit in paragraph (2) or, as the case may be, in relation to housing benefit in paragraph (3), shall continue to have effect both as regards that person and as regards persons who are members of his family on 5th February 1996.
(2) The modifications specified in this paragraph are that for regulation 7 of both the Council Tax Benefit Regulations and the Council Tax Benefit (State Pension Credit) Regulations there shall be substituted—
7.—(1) A person from abroad is a person of a prescribed class for the purposes of section 131(3)(b) of the Act.
(2) In paragraph (1) a “person from abroad” means a person other than a person to whom paragraph (3) or (6) applies, who has limited leave (as defined in section 33(1) of the 1971 Act) to enter or remain in the United Kingdom which was given in accordance with any provision in the immigration rules (as defined in that section) relating to—
(a)there being, or to there needing to be, no recourse to public funds, or
(b)there being no charge on public funds,
during that limited leave.
(3) Subject to paragraph (7) this paragraph applies to a person who—
(a)is a national of a European Economic Area State, a state which is a signatory to the European Convention on Social and Medical Assistance (done in Paris on 11th December 1953), a state which is a signatory to the Council of Europe Social Charter (signed in Turin on 18th October 1961), the Channel Islands or the Isle of Man; or
(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 that there is a reasonable expectation that his supply of funds will be resumed.
(4) In paragraph (1) “person from abroad” also means any person other than a person to whom paragraph (6) applies who—
(a)having a limited leave (as defined in section 33(1) of the 1971 Act) to enter or remain in the United Kingdom, has remained without further leave under that Act beyond the time limited by the leave; or
(b)is the subject of a deportation order being an order under section 5(1) of the 1971 Act (deportation) requiring him to leave and prohibiting him from entering the United Kingdom except where his removal from the United Kingdom has been deferred in writing by the Secretary of State; or
(c)is adjudged by the immigration authorities to be an illegal entrant (as defined in section 33(1) of the 1971 Act) who has not subsequently been given leave under that Act to enter or remain in the United Kingdom except a person who has been allowed to remain in the United Kingdom with the consent in writing of the Secretary of State; or
(d)is a national of a European Economic Area State and is required by the Secretary of State to leave the United Kingdom; or
(e)is not habitually resident in the United Kingdom, the Republic of Ireland, the Channel Islands or the Isle of Man, but for this purpose no person shall be treated as not habitually resident in the United Kingdom who is—
(i)a worker for the purposes of Council Regulation (EEC) No. 1612/68 or (EEC) No. 1251/70 or a person with a right to reside in the United Kingdom pursuant to Council Directive No. 68/360/EEC or No. 73/148/EEC; or
(ii)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; or
(iii)a person who has been granted exceptional leave to remain in the United Kingdom by the Secretary of State; or
(iv)person to whom paragraph (5) applies; or
(v)the subject of a deportation order, being an order under section 5(1) of the 1971 Act (deportation) requiring him to leave and prohibiting him from entering the United Kingdom, and whose removal from the United Kingdom has been deferred in writing by the Secretary of State; or
(vi)adjudged by the immigration authorities to be an illegal entrant (as defined in section 33(1) of the 1971 Act), has not subsequently been given leave under that Act to enter or remain in the United Kingdom but has been allowed to remain in the United Kingdom with the consent in writing of the Secretary of State.
(5) Subject to paragraph (7) this paragraph applies to a person who, 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 that there is a reasonable expectation that his supply of funds will be resumed.
(6) This paragraph applies to a person who—
(a)is an asylum seeker, and for this purpose a person—
(i)becomes an asylum seeker when he has submitted a claim for asylum to the Secretary of State that it would be contrary to the United Kingdom's obligations under the Convention relating to the Status of Refugees done at Geneva on 28th July 1951, and the protocol to that convention, for him to be removed from, or required to leave, the United Kingdom and that claim is recorded by the Secretary of State as having been made; and
(ii)ceases to be an asylum seeker when his claim is recorded by the Secretary of State as having been finally determined or abandoned; or
(b)is awaiting the outcome of an appeal under Part 2 of the 1971 Act (including any period for which the appeal is treated as pending under section 33(4) of that Act); or
(c)has no or no further right of appeal under the 1971 Act but has been allowed to remain in the United Kingdom while an application so to remain is, or representations on his behalf are, being considered by the Secretary of State; or
(d)except where he is a person to whom paragraph (4)(b) applies, has been granted permission to remain in the United Kingdom pending the removal from the United Kingdom of a person who is the subject of a deportation order but whose deportation has been deferred in writing by the Secretary of State; or
(e)is subject to a direction for his removal from the United Kingdom but whose removal has been deferred in writing by the Secretary of State; or
(f)is in receipt of income support.
(7) Paragraphs (3)(b) and (5) shall not apply to a person who has been temporarily without funds for any period, or the aggregate of any periods, exceeding 42 days during any one period of limited leave (including any such period as extended).
(8) In this regulation—
“the 1971 Act” means the Immigration Act 1971 M2; and
a “European Economic Area State” means a Member State, or Norway, Sweden, Iceland, Austria or Finland..”.
(3) The modifications specified in this paragraph are that for regulation 10 of both the Housing Benefit Regulations and the Housing Benefit (State Pension Credit) Regulations, there shall be substituted—
10.—(1) A person from abroad who is liable to make payments in respect of a dwelling shall be treated as if he were not so liable.
(2) In paragraph (1) a “person from abroad” means a person, other than a person to whom paragraph (3) or (6) applies, who has limited leave (as defined in section 33(1) of the 1971 Act) to enter or remain in the United Kingdom which was given in accordance with any provision in the immigration rules (as defined in that section) relating to—
(a)there being, or to there needing to be, no recourse to public funds, or
(b)there being no charge on public funds,
during that limited leave.
(3) Subject to paragraph (7) this paragraph applies to a person who—
(a)is a national of a European Economic Area State, a state which is a signatory to the European Convention on Social and Medical Assistance (done in Paris on 11th December 1953) M3, a state which is a signatory to the Council of Europe Social Charter (signed in Turin on 18th October 1961), the Channel Islands or the Isle of Man; or
(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 that there is a reasonable expectation that his supply of funds will be resumed.
(4) In paragraph (1) “person from abroad” also means any person other than a person to whom paragraph (6) applies who—
(a)having a limited leave (as defined in section 33(1) of the 1971 Act) to enter or remain in the United Kingdom, has remained without further leave under that Act beyond the time limited by the leave; or
(b)is the subject of a deportation order being an order under section 5(1) of the 1971 Act (deportation) requiring him to leave and prohibiting him from entering the United Kingdom except where his removal from the United Kingdom has been deferred in writing by the Secretary of State; or
(c)is adjudged by the immigration authorities to be an illegal entrant (as defined in section 33(1) of the 1971 Act) who has not subsequently been given leave under that Act to enter or remain in the United Kingdom except a person who has been allowed to remain in the United Kingdom with the consent in writing of the Secretary of State.
(d)is a national of a European Economic Area State and is required by the Secretary of State to leave the United Kingdom; or
(e)is not habitually resident in the United Kingdom, the Republic of Ireland, the Channel Islands or the Isle of Man, but for this purpose no person shall be treated as not habitually resident in the United Kingdom who is—
(i)a worker for the purposes of Council Regulation (EEC) No. 1612/68 or (EEC) No. 1251/70 or a person with a right to reside in the United Kingdom pursuant to Council Directive No. 68/360/EEC or No. 73/148/EEC; or
(ii)a refugee within the definition in Article 1 of the Convention relating to the Status of Refugees done at Geneva on 28th July 1951 M4, as extended by Article 1(2) of the Protocol relating to the Status of Refugees done at New York on 31st January 1967; or
(iii)a person who has been granted exceptional leave to remain in the United Kingdom by the Secretary of State; or
(iv)a person to whom paragraph (5) applies; or
(v)the subject of a deportation order, being an order under section 5(1) of the 1971 Act (deportation) requiring him to leave and prohibiting him from entering the United Kingdom, and whose removal from the United Kingdom has been deferred in writing by the Secretary of State; or
(vi)adjudged by the immigration authorities to be an illegal entrant (as defined in section 33(1) of the 1971 Act), has not subsequently been given leave under that Act to enter or remain in the United Kingdom but has been allowed to remain in the United Kingdom with the consent in writing of the Secretary of State.
(5) Subject to paragraph (7) this paragraph applies to a person who, 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 that there is a reasonable expectation that his supply of funds will be resumed.
(6) This paragraph applies to a person who—
(a)is an asylum seeker, and for this purpose a person—
(i)becomes an asylum seeker when he has submitted a claim for asylum to the Secretary of State that it would be contrary to the United Kingdom's obligations under the Convention relating to the Status of Refugees done at Geneva on 28th July 1951, and the protocol to that convention, for him to be removed from, or required to leave, the United Kingdom and that claim is recorded by the Secretary of State as having been made; and
(ii)ceases to be an asylum seeker when his claim is recorded by the Secretary of State as having been finally determined or abandoned; or
(b)is awaiting the outcome of an appeal under Part 2 of the 1971 Act (including any period for which the appeal is treated as pending under section 33(4) of that Act); or
(c)has no or no further right of appeal under the 1971 Act but has been allowed to remain in the United Kingdom while an application so to remain is, or representations on his behalf are, being considered by the Secretary of State; or
(d)except where he is a person to whom paragraph (4)(b) applies, has been granted permission to remain in the United Kingdom pending the removal from the United Kingdom of a person who is the subject of a deportation order but whose deportation has been deferred in writing by the Secretary of State; or
(e)is subject to a direction for his removal from the United Kingdom but whose removal has been deferred in writing by the Secretary of State; or
(f)is in receipt of income support.
(7) Paragraphs (3)(b) and (5) shall not apply to a person who has been temporarily without funds for any period, or the aggregate of any periods, exceeding 42 days during any one period of limited leave (including any such period as extended).
(8) In this regulation—
“the 1971 Act” means the Immigration Act 1971;
a “European Economic Area State” means a Member State or Norway, Sweden, Iceland, Austria or Finland..”.
(4) Where, immediately before the coming into force of the Consolidating Regulations, a person is entitled to council tax benefit or, as the case may be, housing benefit, by virtue of regulation 12(2) of the Social Security (Persons From Abroad) Miscellaneous Amendments Regulations 1996 M5—
(a)the Council Tax Benefit Regulations shall have effect in relation to him subject to the modifications set out in paragraph (2);
(b)the Housing Benefit Regulations shall have effect in relation to him subject to the modifications set out in paragraph (3).
(5) Sub-paragraph (6) applies where a person—
(a)is entitled to a specified benefit in respect of a period which includes 30th April 2004;
(b)claims a specified benefit on or after 1st May 2004 and it is subsequently determined that he is entitled to that benefit in respect of a period which includes 30th April 2004;
(c)claims a specified benefit on or after 1st May 2004 and it is subsequently determined that he is entitled to such a benefit in respect of a period which is continuous with a period of entitlement to the same or another specified benefit which includes 30th April 2004;
(d)claims jobseeker's allowance on or after 1st May 2004 and it is subsequently determined that he is entitled to jobseeker's allowance in respect of a period of entitlement to that benefit which is linked to a previous period of entitlement which includes 30th April 2004 by virtue of regulations made under paragraph 3 of Schedule 1 to the Jobseekers Act 1995 M6.
(6) Where this sub-paragraph applies—
(a)the Council Tax Benefit Regulations and the Council Tax Benefit (State Pension Credit) Regulations shall both have effect as if in regulation 7 (persons from abroad)—
(i)in paragraph (2)(a) the words “or a person who is an accession State worker requiring registration who is treated as a worker for the purpose of the definition of “qualified person” in regulation 5(1) of the Immigration (European Economic Area) Regulations 2000 pursuant to regulation 5 of the Accession (Immigration and Worker Registration) Regulations 2004“ were omitted; and
(ii)paragraph (3) were omitted.
(b)the Housing Benefit Regulations and the Housing Benefit (State Pension Credit) Regulations shall both have effect as if in regulation 10 (persons from abroad)—
(i)in paragraph (2)(a) the words “or a person who is an accession State worker requiring registration who is treated as a worker for the purpose of the definition of “qualified person” in regulation 5(1) of the Immigration (European Economic Area) Regulations 2000 M7 pursuant to regulation 5 of the Accession (Immigration and Worker Registration) Regulations 2004 M8“ were omitted; and
(ii)paragraph (3) were omitted.
(7) The provisions saved by sub-paragraph (6) shall continue to have effect until the date on which entitlement to a specified benefit for the purposes of sub-paragraph (5) ceases, and if there is more than one such specified benefit, until the last date on which such entitlement ceases.
(8) In sub-paragraphs (5) and (7), “specified benefit” means income support, housing benefit, council tax benefit, jobseeker's allowance and state pension credit.
(9) In regulation 12 of the 1996 Regulations—
(a)in paragraph (1), for the words “those provisions” to the end of the paragraph, substitute “ the provisions of the Income Support Regulations as then in force shall continue to have effect as if regulation 8(2) and (3)(c) of these Regulations had not been made ”; and
(b)in paragraph (2), for the words “those Regulations as then in force” to the end of the paragraph, substitute “ the Income Support Regulations as then in force shall have effect as if regulation 8 of these Regulations had not been made ”.
(10) For the purposes of—
(a)regulation 10(1) of the Housing Benefit Regulations;
(b)regulation 10(1) of the Housing Benefit (State Pension Credit) Regulations;
(c)regulation 7(1) of the Council Tax Benefit Regulations; and
(d)regulation 7(1) of the Council Tax Benefit (State Pension Credit) Regulations,
a person who is an asylum seeker within the meaning of sub-paragraph (11) who has not ceased to be an asylum seeker by virtue of sub-paragraph (12), is not a person from abroad within the meaning of paragraph (1) of those regulations.
(11) 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—
(i)the Secretary of State makes a declaration to the effect that the country of which he is a national is subject to such a fundamental change of circumstances that he would not normally order the return of a person to that country; and
(ii)he submits, within a period of three months from the date that declaration was made, a claim for asylum to the Secretary of State under the Convention relating to the Status of Refugees; and
(iii)his claim for asylum under that Convention is recorded by the Secretary of State has having been made.
(12) 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.
(13) In paragraph (11) “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.
Marginal Citations
M3Cmnd. 9512.
M4Cmnd. 9171.
M61995 c. 18; See S.I. 1996/207 and 1516, 1997/2863, 1998/563, 1999/2677, 2000/724, 2001/1029 and 2003/511.