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Habitual residence test for refugee
We have been operating on the understanding that refugees who have been granted leave to remain don’t have to undertake a habitual residence test as they have an exemption.
However we have ran in trouble at the local jobcentre recently, with advisers outlining that’s not the case and sending refugees for HRT. When challenged the adviser stated that this was a direction from his supervisor and couldn’t quote an legislation why this was now the case.
Could anyone guide me to legislation that states that refugees are exempted from a HRT.
They’re talking rubbish. Page 1523 WBH 2014/15 references all those exempt from HRT (or more accurately, who is not to be treated as a person from abroad) and this list includes refugees, you’d need to check footnote 16 reference as the specific regulations that apply vary depending on which benefit is being claimed.
For example, with ESA, you’d look for reg 70(4)(g) of ESA regs 2008 as applicable, whereas JSA is reg 85A(4)(g) of JSA regs 1996.
Thank you, you have really helped
We’ve been in correspondence with DWP on this issue, as someone from Brighton also had clients experiencing problems with right to reside interviews. This is the response we’ve received now:
Thank you for your response. It may help to confirm how the law is applied in respect of those with refugee status, and, subsequently, how the habitual residence process operates with regard to gathering information and how this information is acted upon.
The Social Security (Persons From Abroad) Amendment Regulations 2006 state that persons who have been granted refugee status by the Home Office are not persons from abroad. Therefore, they have the right to reside in the UK and are not required to satisfy a habitual residence test. Guidance provided to staff makes clear that refugees are considered to be habitually resident and it sets out the process to be followed when a claim is made to DWP benefits.
To ensure that income-related benefits are paid to those who have a legal right to reside and have an attachment to the UK, a person must demonstrate they have a right to reside to reside in the UK, and, in certain circumstances, also demonstrate they are habitually resident. Once a person has their refugee status confirmed, the habitual residence element is not applicable in these cases.
On receipt of a new claim to an income-related benefit, all non-UK nationals, as well as British nationals returning from abroad after an appreciable absence, are invited to a face-to-face interview to gather evidence to confirm their right to reside status. This interview uses a web-based tool which asks a series of linked questions to gather information and evidence to establish if a person has a right to reside and if they are habitually resident. This initial evidence gather is an element of the habitual residence process but is not the habitual residence test itself.
Within this interview there is an initial question set which asks a person to confirm if they have refugee status. If this is confirmed, the interview moves straight to the declaration stage and the relevant documentation is submitted by the member of staff for processing. No right to reside test or habitual residence test should be applied in cases where refugee status has been confirmed.
The decision maker’s role is to record the fact that the claimant is a refugee and not a person from abroad on the relevant departmental systems, enabling the claimant’s level of entitlement to benefit to be determined.
So that seems to indicate that (1) every refugee will be called for interview regardless of whether they have submitted relevant documentation with their claim, and (2) if they produce their documentation at the interview, then there should be no further examination of their right to reside.
Definitely one to keep an eye on.
I have been arguing the point that a face-to-face appointment is a JCP operational preference and not a requirement when making a claim.
In my case I have a Polish national who is employed (and proof has been provided) who is temporarily out of the UK, he made a claim for benefit shortly before his 3-week visit home and this is yet to be decided because he is not here to attend an appointment.
I challenged the ‘requirement’ to attend an appointment on the basis that the evidence shows he is exempt from the HRT as a worker. This was a snippet of the reply from the specialist EU DM…
“Of course there are some categories of person who will not be a person from abroad, such as workers or people who retain worker status. However, this is dependant on their right to reside being established and as you know establishing the right to reside is the first part of the HRT and what eHRT is designed to do. We can’t just skip the requirement because we think someone might potentially have a certain type of right to reside, or because they tell us that they do.”
Needless to say IMO a blanket policy of “no appointment, no decision” is unlawful and I have pressed for a decision!
I have previously had a client who was deemed to have failed their Habitual Residence Test despite having been deported.
Ok it was fairly easy to put right.
Nevertherless, these type of cases (failed HRT) keep on cropping up.
Colleague in Scotland, Henri Krishna, has obtained more up-to-date guidance on HRT and refugees now.
Habitual Residence Test (HRT) and claimants with Refugee status
14. A revised claim process has been developed to simplify the claim journey for this vulnerable group of claimants. This process will apply to claimants who at new claims stage declare themselves to be refugees and have appropriate evidence of this.
15. Group 1 – refugees under Gateway Protection Programme or Vulnerable Person Relocation Scheme (they will have documentation clearly showing this) will not be required to complete an eHRT. Instead the financial assessor will scan the evidence and send a Handover and Outbound Telephony Tool (HOTT) workflow to the decision maker stating that the claimant falls within this group, has provided the evidence and requesting that the HRT decision be fast tracked. The HOTT subject will be ‘refugee claim’.
16. Group 2 – other refugees who have been granted refugee status in the eight weeks prior to claim and can provide documentary evidence. This group will complete the eHRT as usual and again the decision maker will be asked to fast track the decision. The eHRT tool will ask an abbreviated question set when the claimant is identified as a refugee.
17. Persons stating that they are refugees but who are either unable to provide evidence or were granted status more than eight weeks before the date of claim will complete the eHRT as normal and will be required to provide all available evidence. The referral for a decision will not be fast tracked.