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Forum Home  →  Discussion  →  Income support, JSA and tax credits  →  Thread

Claimant with Discretionary Leave to Remain…

JRyan
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Welfare Benefits, ParagonCHG, Surrey

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Total Posts: 63

Joined: 13 February 2014

... who had an unintended extended absence from the UK.

Can I run this by you all to see if anyone has any bright ideas.

I have a tenant who has a discretionary leave to remain (asylum seeker / trafficked child) which, as far as I can tell, does include recourse to public funds. She was working and paying her rent until she went on holiday to Morocco. In Morocco she was arrested due to allegations that her documents were false. She says she ended up having to go to Sierra Leone to get a new Guinean passport issued. (I have NO idea if any of that makes any sense)

She returned to the UK on 14/04 having been gone since 16/12. Complicating factor is that she has come back pregnant and has been quite ill so has been unable to get back into work.

Her claim for JSA was refused as she was told that she needed to be in the country for three months. I believe the DWP have refused to treat her absence as temporary. As she only went for a two week holiday, was detained due to reasons beyond her control and had a job and a home to come back to this should be easy enough to overturn on revision? Does anyone have any experience of this?

However in the meantime, she has huge rent arrears and has been served with a section 21. I’ve asked HB to review their decision not pay HB on the basis that JSA is not in payment. Is this a decision of the DWP that they have to follow or do they have the power to make their own decision on her right to reside?

Any other bright ideas about this, am I missing an easy answer?

TIA

Elliot Kent
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Shelter

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Joined: 14 July 2014

1. I don’t think that anything which you describe would have caused the client to automatically lose her right to reside although I am a little unclear on what exactly her status is. If she has indefinite leave, my understanding is that you have to leave the country for two years to lose it.

2. If your client is a refugee or has been granted certain kinds of discretionary leave to remain, it may well be that she is exempt from the HRT altogether on the basis of reg 85A JSA regs/reg 10(3B) HB regs.

3. If this exception does not apply, then JSA need to be satisfied that (a) there is a right to reside, (b) she is habitually resident in fact and (c) she has been “living in” the UK for three months. HB only need to be satisfied of (a) and (b). HB rarely have to follow a JSA decision and, in any event, they are making a substantively different decision so can’t just follow the JSA one.

4. Your client’s absence does not necessarily mean she has not been “living in” the UK for the past three months nor does it necessarily mean that she has lost her habitual residence . See this case https://www.rightsnet.org.uk/welfare-rights/caselaw/item/15-month-absence-abroad-may-be-accepted-as-temporary-so-that-it-does-not-in

I would be filing an MR for the JSA decision and a recon/appeal of the HB decision separately. On the assumption that things aren’t sorted out in the next couple of weeks, I would be advising client to make new claims once she has been back for three months (this doesn’t stop her from carrying on the disputes).

[ Edited: 28 Jun 2017 at 12:04 pm by Elliot Kent ]
JRyan
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Welfare Benefits, ParagonCHG, Surrey

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Total Posts: 63

Joined: 13 February 2014

Thanks Elliot.

A bit more detail has come to light. She applied for JSA online but was told verbally at her first interview that she did not qualify but was never given a written decision. I will follow this up with JSA.

I *think* she should be exempt from HRT due to her discretionary leave to remain but without a written decision I have no idea how JSA have come to the decision they have.