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UC and proving immigration status
I have got my first Universal Credit case and its proving tricky so would welcome others thoughts on this.
My client is a Jamaican National who was granted Indefinite Leave to Remain here in 1997. She has two children, one is a dependant and the other is now an adult. In 2001 her Jamaican passport was stolen and she was issued with a new one which has now long expired. Her stolen passport contained her Indefinite Leave to Remain document. The replacement passport has a stamp in it stating she has indefinite leave to enter the UK. She is in the process of renewing the passport. She does not have any other paperwork in relation to her immigration status.
She claimed Universal Credit in December last year, and as she lives in a full digital area they do not have appeared to applied the stringent gateway conditions which she would not have normally met. She received a decision on her UC claim last week stating that she was not entitled as she had only provided an expired passport and therefore the immigration stamp in it was no longer valid, and therefore that she is not a qualified person as defined in Immigration & Asylum Act 99 and Universal Credit Regulations 2013. They have also stated that she has no entitlement to public funds in their decision letter.
I have advised the client to check whether she has any no recourse to public funds restriction placed on her, however I suspect that they have said this as they are stating her immigration stamp is no longer valid. The passport does not mention any restriction to public funds and she has successfully claimed and been awarded means-tested benefits in the past, I am aware though that mistakes can be made in relation to this. I also have always been led to believe that an expired passport does not invalidate an immigration stamp stating indefinite leave to remain/enter however I am not an immigration specialist so I could be wrong about this. The Border Agency are saying they cannot provide her with any further documentation to evidence her indefinite leave to remain other than her applying for a biometric card, the cost of transferring the indefinitely leave to remain on this appears to be £260!
My question are -
1) Should her expired passport with a stamp stating indefinite leave to enter be enough to evidence her immigration status for her UK claim?
2) If not can the DWP request confirmation from the Border Agency of her immigration status and whether she has recourse to public funds to avoid having to find £260 to pay for the biometric card?
3) Her claim has been closed along with her negative decision on her claim, as she was claiming as a jobseeker does this mean that even if we overturn the decision on mandatory reconsideration they will not pay her as she will not meet the work related requirements?
4)Her Child Tax Credit claim was closed by HMRC due to her UC claim even though she had not been awarded UC, is there any chance of getting this into payment again, seems unlikely.
I would venture to suggest that DWP is plain wrong to just assume that the ILR stamp is invalid just because the passport it is stamped in is expired.
I have personal experience of taking my expired passport on a second visit to the USA (with the current one too obvs!) because the expired one had the STILL CURRENT visa stamped in it. Anecdotally I have heard that it is common for people to retain and use expired passports for travel to various places for that same reason.
She received a decision on her UC claim last week stating that she was not entitled as she had only provided an expired passport and therefore the immigration stamp in it was no longer valid, and therefore that she is not a qualified person as defined in Immigration & Asylum Act 99 and Universal Credit Regulations 2013. They have also stated that she has no entitlement to public funds in their decision letter.
Utter rubbish!! They certainly are not immigration officers and don’t act for the SoS, in that regard, all they need to ascertain is ILR (It’s called indefinite for a reason).
I would appeal, complain and write to the MP, all in one go, to hasten a positive response or it will just drag on.
Just to endorse the previous comments and add that it costs £660 for an urgent ILR residence permit. It’s £260 by post but I don’t know how long it will take. That seems to be a good reason for not doing it. The government guidance is clear that you don’t have to: http://www.gov.uk/transfer-visa
Just to give an update, I’m afraid we have not got any further with this. We are now at the appeal stage as DWP would not overturn the original decision on MR as they said the client did not provide further proof of her Infinite Leave to Remain.
I wrote a complaint as suggested but this has not got us any further forward, I am waiting for a written response but verbal feedback was that Complaints manager felt everything had been done correctly from their end. The MP is also involved but again we are no further forward with a resolution.
We have put in an access request to UK Visa and Immigration Service for her file which will include her original leave to remain documents. Just to make things worse they have not put her on the digital system but think that she will have a paper file somewhere…..........We have been told this access request can take 40 days.
The Visa and Immigration Service have said that the biometric card will take several months if she pays £260 and 3 weeks if she pays £680. She does not have any money for either of these things.
The Visa and Immigration Service will no longer write a letter confirming someone status so they either have to do a file access request or apply for expensive biometric documents.
Looking at another thread on Rightsnet it was suggested that someone might be able to claim Tax Credits still in a UC digital area -http://www.rightsnet.org.uk/forums/viewthread/9266/ however client tried this today and was told her UC claim was still live even though she had been refused benefit and therefore would not allow her to claim. I knew a JSA claim would problematic but had a slight hope on the possibility of some child tax credit.