JSA and establishing right of abode

I understand that no one will want to comment on the immigration issue here, but I’d appreciate any pointers on the benefit decision.

Client has a US passport, has lived in the UK since 1984, he is married to a British citizen. He was born in the Commonwealth and has a “certificate of entitlement to the right of abode” (dated 1986) in his passport. That passport has now expired, and he has been travelling on new US passports and also showing the old certificate to passport control, with no apparent problems.

He has received c-JSA in the past. He recently claimed ib-JSA, which was refused because:
- the certificate expired when the passport did (we believe this is correct)
- UKBA have told JCP that they have no trace of him on their system.
- therefore JCP can not verify that he currently has the Right of Abode.

JCP suggest he contact UKBA to obtain verification of his immigration status, and they state that until his status is confirmed he has no entitlement to ib-JSA. We’re a little unclear how UKBA are going to confirm his status if they have no record of him, but we presume he needs to pay for a new certificate. Or, he could apply for settled status instead? We are going to refer him for immigration advice on that point, but we have the possibility of lodging a JSA appeal in the meantime. Is the onus of proof indicated by JCP open to challenge?

I think Tony is right, to make it easy, the partner should claim. But if he was single I would lodge an appeal, on the balance of probability, if you have had sight of the expired passport and the right of abode is authentic, the claimant is entitled to benefit like any other UK citizen.

Huh. Her as the claimant is going to make it ESA rather than JSA, but we assumed the same doubt about his status would be used to not pay them the couple rate. I guess not, thanks guys.

Sounds like he has a right of abode under the 1971 Immigration Act?

2 Statement of right of abode in United Kingdom.

(1)A person is under this Act to have the right of abode in the United Kingdom if—
(a)he is a British citizen; or
(b)he is a Commonwealth citizen who—
(i)immediately before the commencement of the British Nationality Act 1981 was a Commonwealth citizen having the right of abode in the United Kingdom by virtue of section 2(1)(d) or section 2(2) of this Act as then in force; and
(ii)has not ceased to be a Commonwealth citizen in the meanwhile.

(2)In relation to Commonwealth citizens who have the right of abode in the United Kingdom by virtue of subsection (1)(b) above, this Act, except this section and [section 5(2)], shall apply as if they were British citizens; and in this Act (except as aforesaid) “British citizen” shall be construed accordingly.]

Section 2(1)(d) of the original act is as follows:

2 Statement of right of abode, and related amendments as to citizenship by registration

(1)A person is under this Act to have the right of abode in the United Kingdom if—
d) he is a Commonwealth citizen born to or legally adopted by a parent who at the time of the birth or adoption had citizenship of the United Kingdom and Colonies by his birth in the United Kingdom or in any of the Islands.

s2(2) is concerned with rights of abode for women.

For the question of the burden of proof see Kerr v. Department for Social Development (Northern Ireland) (2004) HL, paras 56-63.

On a more general note, where a couple have a choice between ESA and JSA, ESA must be the preferred option because of the possibility of extra money in the award of a component and positive future effects; e.g. disability element in WTC. The JSA should be either CB or credits only.

But in many cases the claimant or partner gets DLA (or is applying for it). This raises the choice of single/couple disability premium on a JSA claim, vs work/support component(+enhanced DP) on an ESA claim. It’s not always easy to weigh this up, especially during the assessment phase, e.g. they may end up better off in the support group, but JSA with a disability premium is worth more than work-group ESA.

Sounds like he has a right of abode under the 1971 Immigration Act?

Yes, I think the problem is just in demonstrating that as a fact. It may be that JCP have made reasonable enquiries from their perspective and come up empty, so it’s up to the claimant. (Certificates of entitlement to right of abode cost applicants £162, the UKBA likely need sight of a parent’s original birth certiifcate, and it could take six months to come through.)