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JSA when LTR has expired

 

Billy Durrant
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The Brunswick Centre, Kirklees & Calderdale

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Client is from Zimbabwe, she made a failed application for asylum in 2001 and has been here ever since with LTR outside of the usual immigration rules. Single parent with 3 British children (so JSA not UC), never worked. Latest 3 years visa expired in early May but neither she nor DWP noticed until she had to move from IS to JSA on child’s birthday, at which point JSA claim was refused for no R2R.

The JSA Regs refer to the Immigration & Asylum Act which states:

3C Continuation of leave pending decision.
(1)This section applies if—
(a)a person who has limited leave to enter or remain in the United Kingdom applies to the Secretary of State, before his leave expires, for it to be varied; and
(b)when it expires, no decision has been taken on the application.
(2)His leave is to be treated as continuing…

Does anyone know what happens if the person does not apply for a visa extension until after her current visa expired? Can JSA be paid whilst waiting for the Home Office to make a decision as it would have been if she had applied for her visa renewal in time?

Home Office is saying it will make a decision within 6 months. HB/CTR has also been stopped following JSA decision but Ch Ben and CTC are still in payment for now.

     
chacha
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Benefits Dept Hertsmere borough Council Herts

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Billy Durrant - 11 June 2018 03:18 PM

Client is from Zimbabwe, she made a failed application for asylum in 2001 and has been here ever since with LTR outside of the usual immigration rules. Single parent with 3 British children (so JSA not UC), never worked. Latest 3 years visa expired in early May but neither she nor DWP noticed until she had to move from IS to JSA on child’s birthday, at which point JSA claim was refused for no R2R.

If she made an application for a variation of the leave, before the LTR expired in May, then she is still covered. If not, then there is no way around it.

     
Billy Durrant
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The Brunswick Centre, Kirklees & Calderdale

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Thanks Chacha.

Fiddlesticks. So no chance of JSA, HB or CTR until the Home Office makes a decision. Would it make sense to continue to comply with JSA conditionality in the meantime or is this pointless? i.e. if the HO grants LTR again will she be able to get JSA from the date of claim (having complied with the JSA conditions) or just from the date of the HO decision?

I think that she can continue to receive Child Benefit - https://www.gov.uk/hmrc-internal-manuals/child-benefit-technical-manual/cbtm10140

But I can’t find anything that will entitle her to Child Tax Credit. Is this right?

We have been in touch with the MP to ask him to help try to expedite the HO decision on the basis of hardship and likely cost to the public purse and we will refer for Section 17 support. We are also liaising with the RSL landlord and we will try to negotiate with Council Tax re holding off recovery action.

Anything else that we should/could be doing?

 

      [ Edited: 13 Jun 2018 at 11:31 am by Billy Durrant ]
DebRead
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Reading Citizens Advice

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Just a quick warning: whilst a person subject to immigration control can claim child benefit for a British citizen child, if your client became an overstayer and currently has no immigration status then she is not “ordinarily resident” and HMRC will say she is not entitled to child benefit - if the Home Office check, she may end up with a child benefit overpayment and child benefit will stop. - see Shah v London Borough of Barnet [1983] 2 AC 309 .