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Expired Biometric Residence Permit

Pete at CAB
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Welfare Benefits Adviser’ for Citizens Advice Cornwall

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We have a cl and partner who are non EEA nationals and have come to the UK seeking asylum( they are from the middle east).
They have claimed UC but this has been refused as they apparently failed the R2R test. At first sight the only reason for this would seem to be that their Biometric Residence Cards have expired. They have applied to the home office for indefinite leave to remain but, due to the backlog in that system, the HO has not reached a decision yet.

Does anyone know if the R2R is established by the issue of the BRC and continues regardless of whether the actual card itself has run out?

Are UC obliged to check immigration status with the Home office, there is an indication on GOV. UK that in some circumstances they are obliged to do so, but it is as yet unclear if they have done so in this case

Elliot Kent
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I think the BRP is something of a red herring. The question is what your client’s immigration status actually is.

You state that they arrived seeking asylum and that they have now applied for ILR so the implication is that their asylum claim was determined and that they were accepted as refugees and given five years leave around five years ago. That leave is now coming to an end (or has already ended) and they are applying for ILR as a continuation of that leave.

In this circumstance, provided that the ILR application was made before the expiry of their previous leave, the effect of s3C Immigration Act 1971 would be to extend their leave to remain for so long as it takes for the application to be determined. A brief check of the gov.uk material suggests that the BRP issues would be addressed as part of the application process.

So provided that their application for ILR was made before the expiry of their limited leave, they would seem to be entitled to benefit from s3C until their application is dealt with.

I believe that the Home Office issues a letter which acknowledges receipt of the ILR application and states whether or not s3C applies in these cases which should resolve any evidential issues, however as you say they can check with the HO if not.

Pete at CAB
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Welfare Benefits Adviser’ for Citizens Advice Cornwall

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Total Posts: 380

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Many thanks, I think this may in fact be something of an ‘official error’ by UC as I have never seen a case like this before (hence the original post), we are putting in for an MR right away