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Backdating HB once immigration status resolved

 

 

JoW
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Wythenshawe Community Housing - Financial Inclusion Manager

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We have tenant who is a US citizen but has lived in the UK for over 40 years. He came to the UK when he was around 19 yo and married a British woman. They lived in the UK and had children here and at some point had a green card. He split up from his wife and I think they are divorced.  He worked until a few years ago when he became unwell in his late 50s/early 60s. He claimed ESA (I think contributory) and HB without any problem and then he failed his medical (a year or so ago). He didn’t appeal and thought he would be able to get Pension Credit soon. However his HB then stopped due to his immigration status. He got a letter from Home Office around the same time, out of the blue, advising him he was an overstayer.. He has a solicitor who says this has come about due to a change in the law a few years ago. His solicitor has told him that it is just a legal formality and he will get citizenship but that it could take up to 6 months - his application is in with the Home Office. 

Assuming he gets his status would HB backdate to the date it stopped or would HB only backdate to the date when he gets his status? It is now nearly a year since he got any HB.

     
HB Anorak
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I think it will depend on how he acquires British citizenship.  There are four ways: descent, adoption, naturalisation and registration.  With the last two as I understand it you are not a citizen until the Home Office confirms this - it isn’t an inherent status that you had all along.  It seems more likely that he is going to be in one of those categories, which is bad news for his HB claim.

     
JoW
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Thanks for your prompt reply

     
Benny Fitzpatrick
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So would that mean he may have been overpaid HB on his entire previous claim?

     
JoW
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HB Anorak - do you know what regs say HB can’t be backdated once immigration status resolved and citizenship granted? I can only find HB backdating regs relating to asylum seekers.

Don’t want to think about possible overpayment for previous period!

     
HB Anorak
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The refugee backdating rule is long gone - and there isn’t anything similar in its place.

The claimant is a person subject to immigration control (PSIC) excluded from benefits by s115 of the Immigration and Asylum Act 1999 for as long as s/he is a “person who requires leave ... but does not have it”: that is the category into which an overstayer falls.  The issue then is whether acquiring citizenship could in any way retrospectively make the person not a PSIC.  Even if it did, there would still be the backdating problem: in the absence of anything to say you can backdate HB for this particular reason, normal rules apply.  It might be possible to revise a decision ending HB if it falls within the period of retrospective citizenship but a completely new claim going back further than the usual one-month/three-month limits seems to be out of the question.

However I don’t think we even get as far as that problem because the British citizenship is not retrospective.  As noted earlier, it would appear that his British nationality will be acquired by naturalisation or by registration under the British Nationality Act 1981 (incidentally I am using the words “citizenship” and “nationality” interchangeably here because that is exactly what the 1981 Act does).  In both cases an application must be made to the Secretary of State who will then either register you as a citizen or grant you a certificate of naturalisation.  The way I read it you have not acquired citizenship until this happens.

I am not aware of any authority on this, but there is an analogous case on the effect of winning an immigration appeal: the Tribunal’s decision does not confer leave to remain upon you, it merely requires the Secretary of State to grant you leave and until she does you haven’t got it:

http://administrativeappeals.decisions.tribunals.gov.uk/aspx/view.aspx?id=3373

I think the same principle applies to a grant of citizenship.

The Council will probably want to quietly forget about any overpayment because it would seem that it has been caused by an official error in the form of failure to make pertinent enquiries.  They will keep their fingers crossed that the case is not inspected by an auditor who even understands the first thing about PSICs.  I think the odds would be very heavily in favour of them getting away with it.  There are probably thousands of cases like this.

     
JoW
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Thanks again. Really helpful