This is such a specific rule I've never had a case it could even possibly apply to before, but I understand that persons who left Montserrat following the 1995 volcanic eruption are exempt from the HRT.

My client arrived in the UK on 14/04/2009 and applied for JSA the same day. He has a decision stating her has been found not to have RTR therefore failing the HRT.

This is obviously incorrect as he holds British Citizenship.

However as he has never lived in the UK before we would not normally expect him to be habitually resident on day of arrival. We've advised him to make a new claim after 3 months in the UK.

However we're also looking at the Montserrat exemption. Client previously had a Montserrat colonies passport. He left in 1997. He worked on board cruise ships and following the eruption there was no work. He left as soon as he found work on another route - spending most of his time on board ship with shore leave in Puerto Rico. He is no longer working on ships and wishes to settle in the UK.

I am slightly concerned about the time that has elapsed. However looking at the legislation :

" "person from abroad" does not include any person in Great Britian who left the territory of Montserrat after 1st November 1995 because of the effect on that territory of a volcanic eruption"

I see no limitation in terms of time. It doesn't say they had to leave Montserrat FOR the UK, it doesn't say they had to leave immediately after. It seems to just say there has to be a causal relationship between their leaving the island and the eruption - which seems to be the case.

That seems a bit too...easy. I can't find any other information. The guaidance is slightly vaguer. I can't see any other limitations....

Anyone have any idea how they actually apply this rule ? Or had any similar cases ?

I'm going to try a review (because at least they'll correct the ridiculous RTR decision) and see what they say, but I feel a bit lost.

Victoria.

Interesting question. I suppose what it comes down to is: did he leave becuase of the eruption or becuase there was no work. Can the latter be linked to the former?

I've not dealt with this and since you posted a quote from regs I haven't looked it up. I don't see anything wrong with your analysis. Run it and see.

Regarding the new claim. An 'appreciable period of time' for HRT cases is 2 weeks to 3 months. Since three months is usually considered the outside, I would advise a repeat claim much sooner than three months - usually straight away. I have it in mind though that a commissioner found that a tribunal could circumvent the necessity of repeat applications to get the restrictions in tribunal's jurisdiction by treating the refused claim as an advance claim. You might want to dig this one out (sorry I don't know it and don't have time to look myself) so if the Montserrat argument fails your client could still establish HR and entitlment to benefit before three months.

Unfortunately the provision under regulation 13 of the Claims and Payments Regs to make future claims on habitual residence grounds was amended to exclude such claims, reversing the Court of Appeal's decision in Bhakta.

Thanks for that addition Paul.

Given this, and aside from being glad that i always advise repeat claims anyway, I would suggest repeat applications every single time a claim is refused on HRT grounds - stopping only when benefit is awarded or refused for some other reason.

Thanks.

"I suppose what it comes down to is: did he leave becuase of the eruption or becuase there was no work. Can the latter be linked to the former?"

He worked on cruise ships. Following the eruption the tourist trade collapsed and no more ships were including Montserrat on the itinery. He couldn't work on a ship and live in Montserrat.

The next opportunity for work in his field he had was on a ship working out of Puerto Rico, and not visiting Montserrat at all.

Looks reasonably causal to me. So I'm having a go.

Regarding the 3 months - I had understood that after 3 months they will pass people on HRT unless there is good reason not to, and before they will give it only where there is good reason TO give it. I haven't actually looked that up myself, but this is why we're always told to get people to reapply after 3 months.

We might have suggested an earlier claim as well - but 3 months is now only 2 weeks, and he is really a very weak HRT claim. He has nowhere to live - accept staying with his brothers soon to be ex. wife, no work, no real way of supporting himself and minimal ties here. He IS looking for work, and he's registered with a doctor and he's active in a church.... but for 2 weeks when we're already challenging the original decision on other grounds it could be a lot of work. He understands he is able to make another claim if he wants.

Thanks again. (and to nevip).

Victoria
(I seem to be logged in under a very old account by accident. I haven't worked at Holborn for years - I'm a generalist adviser at Leytonstone CAB).