Bit of an urgent one this.......

I'm fairly sure I've come across cases in the past (in past employment, unfortunately, so I can't go and check them) where the department has been able to obtain information from the Home Office re: a claimant's immigration status - and has been able to do this with relative facility. Seem to remember having come across it where claimant's papers are with the HO or where they've had ILR/ELR/discretionary leave that has expired but have applied for an extension of said leave before expiry (thereby retining public funds access).

I say "with relative facility" to mean a matter of a few weeks at most - because it takes the HO anywhere between 6 - 12 months to respond to subject access/DPA requests for the file.

Basically, got a case I've inherited and am now trying to salvage before the UT. Amongst other points, I want to be able to put the Kerrarguement that proof of my client's having applied for extension of discretionary leave within time (did it herself, no solicitor involvement)was far more readily obtainable by the department than her - and the department's failure to make any enquiries of the HO should thus rebound upon it.

So, anyone able to confirm the fact of such links/ability to obtain information - or am I imagining it?

Thu 12-Mar-09 02:09 PM by shawn

(Edited to shorten link)

Not sure if CPC/1872/2007 is useful.

In brief, at issue in this appeal was whether the claimant was excluded from benefit because she was given leave to remain as a result of a maintenance undertaking.

Citing the approach taken by the Lords in Kerr , Commissioner Bano holds that the DWP had not played its part in the investigative process, since -

'... the responsibility for obtaining the information necessary to decide what part the sponsorship undertaking played in the decision to grant the claimant leave to remain lay squarely with the DWP, rather than with the claimant. Those representing the claimant no doubt made all manner of representations on her behalf to the Immigration and Nationality Directorate, but in the absence of anything like a reasoned decision letter they could hardly be expected to know which considerations had in fact weighed with the decision maker in granting the claimant leave to remain. If the claimant was required to prove entitlement to benefit, she would have to prove a negative by showing that the maintenance agreement given by her daughter was not a factor in the decision to grant her leave to remain outside the Immigration Rules.'

There is a summary of CPC/1872/2007 in briefcase.

Cheers Ken - will be useful, I think, though I've got plenty of other ammo. And in the interim, in connection with another case, just had it confirmed by Belfast DBC that they can and will fax Home Office for confirmation of immigration status.

Hope things going well in your new job.