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IIDB - no visa

 

ClairemHodgson
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I’ve not had to think about this question before

client suffered severe injury at work (lost the sight in one eye and reduced vision in the other).  currently has no visa, but not being sent home because of his injuries.

Can he claim IIDB?

nothing immediately apparent to say he can’t (unlike PIP, which is only available if you are not subject to immigration control)

     
nevip
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At first sight I can’t see anything to say he can’t.  As you imply, it’s not covered by s115 of the IAA 1999 and the accident appears to have occurred in employment in the UK.

     
ClairemHodgson
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nevip - 05 February 2018 05:30 PM

At first sight I can’t see anything to say he can’t.  As you imply, it’s not covered by s115 of the IAA 1999 and the accident appears to have occurred in employment in the UK.

yes in uk - harlesden, in fact.

always good when others read criteria in the same way!

shame he can’t go for PIP as well .....

     
ClairemHodgson
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and it’s not within the definition of public funds in the Immigration rules either

https://www.gov.uk/guidance/immigration-rules/immigration-rules-introduction#intro6a

     
ClairemHodgson
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anyone else got a view?  client currently not minded to risk it.  i’ve also referred him to an immigration firm, but they said they know nowt about benefits..

     
Elliot Kent
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None of the usual sources suggest there is any restriction on this. DMG 074370 simply says:

“A claimant does not have to satisfy residence conditions to claim Industrial Injuries benefits in Great Britain. However, benefit may not be payable if the employed earner had an industrial accident or contracted a prescribed disease whilst outside Great Britain or if the claimant is absent from Great Britain”

I suppose it’s possible that receipt of IIDB might be factored into the Home Office decision as to whether or not to deport him.

 

     
ClairemHodgson
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Elliot Kent - 09 February 2018 04:35 PM

None of the usual sources suggest there is any restriction on this. DMG 074370 simply says:

“A claimant does not have to satisfy residence conditions to claim Industrial Injuries benefits in Great Britain. However, benefit may not be payable if the employed earner had an industrial accident or contracted a prescribed disease whilst outside Great Britain or if the claimant is absent from Great Britain”

I suppose it’s possible that receipt of IIDB might be factored into the Home Office decision as to whether or not to deport him.

he’s not being deported because of the injuries sustained and continuing problems, i gather.  accident was in GB no problem there.

and thank you hadn’t thought of checking the DMG! doh!

      [ Edited: 9 Feb 2018 at 05:54 pm by ClairemHodgson ]
Martin Williams
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Is there also an issue about whether the client was working without a permission to work when he had the accident? I really am not sure about this one as very poor knowledge on IIDB and employment law not great- but is someone who does not have a legal permission to work but who nonetheless works able to then rely on it to get IIDB?
IIDB requires the injury be sustained in the course of employment as an employed earner (defined in s2(1)(a) SSCBA 1992 as either under a contract of service or in an office…). Can you have an employment contract without permission to work?

I really wouldn’t rely on me saying this to advise client- is just a thought and not one I know the answer to. Also not even sure if those are your facts.

Martin

     
Ruth_T
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Have a look at s 97 of the Social Security Contributions & Benefits Act 1992 which deals with Accidents in the course of illegal employments.  The SoS has power to direct that the employment under consideration is treated as “employed earner’s employment” not withstanding any illegality or irregularities involved.

     
Jeremy Barker
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Martin Williams - 14 February 2018 08:05 PM

… Can you have an employment contract without permission to work?

Martin

There would be a contract but it would be an illegal contract which would make any rights arising out of the contract of employment unenforceable - for example, you couldn’t claim for not being paid or for discrimination.

As far as eligibility for IIDB is concerned s.97 of the SSCBA 1992 could rescue you if the Secretary of State were to exercise their discretion to treat the employment as legal. That said, the discretion appears to be limited to cases where the illegality arises “by reason of a contravention of, or non-compliance with, some provision contained in or having effect under an enactment passed for the protection of employed persons or any class of employed persons”. Being illegally employed in contravention of immigration law does not seem to fall into that category as immigration laws are not “for the protection of employed persons or any class of employed persons”.

Another possibility may be a claim for personal injury against the employer but you would need expert advice as to whether that would be possible.

 

     
Elliot Kent
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Jeremy Barker - 15 February 2018 01:32 PM

Another possibility may be a claim for personal injury against the employer but you would need expert advice as to whether that would be possible.

I expect that Claire might just be that expert… http://www.sclaw.co.uk/Our-team.aspx

Dissertations could be written on the question of whether illegality (a) voids a contract or (b) renders it unenforceable between the parties. I expect that if the answer is (a), then an IIDB claim could not succeed because the contract would be a nullity and there would be no contract of service - but if the answer is (b) then the contract could have some legal existence and might still be a contract of service despite being unenforceable in practice - potentially grounding the IIDB claim.

That said, it seems perfectly plausible that this man was working legally but no longer has a right to live in the UK. Plenty of people get a three year work visa and then wind up illegally overstaying - often because they can’t afford the fee charged for a renewal. The issue might not even arise.

      [ Edited: 15 Feb 2018 at 02:18 pm by Elliot Kent ]
ClairemHodgson
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Jeremy Barker - 15 February 2018 01:32 PM
Martin Williams - 14 February 2018 08:05 PM

… Can you have an employment contract without permission to work?

Martin

 

Another possibility may be a claim for personal injury against the employer but you would need expert advice as to whether that would be possible.

that is what i do for a living, and how i came to ask the question - i rather think, in fact, he had a visa at the time, not wholly sure - but i’m all over that.

     
ClairemHodgson
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and even if a contract of employment is in fact illegal, the employer still has a duty of care for his/her employees and can be sued for breaching it.

no worries on that one.