Leave to remain whilst appealing - benefit refused

CPAG Benefits for Migrants (at pages 63-64) touches on an unclear issue where somebody whose leave to remain is extended where they are appealing. I was just wondering if anyone else has come across this issue + might be able to clarify or whether interpretation has been subject to challenge of any kind?

In the circs, clt had discretionary leave to remain and applied for leave to be extended (within time limits) but was refused Clt met all relevant time limits to appeal and is waiting for appeal to be heard.

There were no previous restrictions in terms of accessing public funds and clt has received documentation from the Home Office confirming that all the conditions that applied when she was granted discretionary leave still apply until she has exhausted the appeals procedure.

Looking at the relevant legislation, s115 of the Immigration and Asylum Act 1999 seems clear in restricting payments in clt’s circs if the reference to “paragraph 17 of Schedule 4” is interpreted as referring to the re-enacted provision “Section 3C of the 1971 Act”.

CPAG suggests the point is arguable but I’m unsure on what basis. The final; para of page 63 seems to suggest that ‘in practice’ it would not make any difference unless the original leave had a ‘no recourse to public funds’ condition, which was not the case.

Any thoughts would be welcome.

It’s the other way round isn’t it? Only makes a difference if preexisting leave was not conditional on having no recourse.

I think the Interpretation Act would require that the out of date references in s115 (9) be read as if they were referring to s3C of the 1971 Act, which is a direct repeal-and-replace job. The CPAG commentary used to omit any reference to the legislative history: it seemed unaware that s3C was a replacement for the 1999 Act appeal provisions. Don’t have latest edition, have they modified their position?

HB Anorak - 28 February 2017 02:54 PM

It’s the other way round isn’t it? Only makes a difference if preexisting leave was not conditional on having no recourse.

I think the Interpretation Act would require that the out of date references in s115 (9) be read as if they were referring to s3C of the 1971 Act, which is a direct repeal-and-replace job. The CPAG commentary used to omit any reference to the legislative history: it seemed unaware that s3C was a replacement for the 1999 Act appeal provisions. Don’t have latest edition, have they modified their position?

Yes you’re right HB Anorak. So, in my clt’s circs - previous leave to remain was not conditional on having no recourse + they were able to access all relevant benefits. Now that they are appealing they are caught by s115(9)(d) and have no entitlement.

CPAG certainly includes references to all of the above but does also imply that the interpretation may not be correct. However as you say, because of the ‘direct repeal-and-replace’, this doesn’t seem like it has any hope of success?

Not an expert + would be very happy to be corrected on this point!