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Past presence and nil recourse

Rebecca Lough
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Welfare rights - Greenwich Council

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Hi there

Hoping it’s a simple answer. Client who has been in the UK for a number of years but primarily as an overstayer. She was then successfully granted indefinite leave to remain.

In terms of the past presence - does the presence in the UK need to have been legally/with adequate status to count?

Many thanks

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Information and advice resources - Age UK

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I think she needs to be lawfully present with an appropriate immigration status -

Reg.16(d)(i) of PIP Regs states:

Conditions relating to residence and presence in Great Britain
16.  Subject to the following provisions of this Part, the prescribed conditions for the purposes of section 77(3) of the Act as to residence and presence in Great Britain are that on any day for which C claims personal independence payment C—

(a)is present in Great Britain;
(b)has been present in Great Britain for a period of, or periods amounting in aggregate to, not less than 104 weeks out of the 156 weeks immediately preceding that day;
(c)is habitually resident in the United Kingdom, the Republic of Ireland, the Isle of Man or the Channel Islands; and
(d)is a person–
(i)who is not subject to immigration control within the meaning of section 115(9) of the Immigration and Asylum Act 1999

So the person must be present in the UK and they must not be a person subject to immigration control, for the period preceding their PIP claim.

Sec.115(3) of the Immigration and Asylum Act holds:

(3)This section applies to a person subject to immigration control unless he falls within such category or description, or satisfies such conditions, as may be prescribed.

And sec.115(9)  holds:

(9)“A person subject to immigration control” means a person who is not a national of an EEA State and who—
(a)requires leave to enter or remain in the United Kingdom but does not have it;

Your client required leave to remain in the UK and did not have it. So the period of time when she was an overstayer won’t be counted for past presence. Of course, I may be wrong so sticking a claim in and seeing what happens is probably the best idea.

Elliot Kent
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I suppose the point is that there is a distinction between each of the conditions in reg 16. Reg 16(b) is the past presence test and reg 16(d) is the requirement to not be a PSIC at the time for which PIP is claimed. Your client meets the requirement under reg 16(d) because they now have ILR so its just the PPT left.

At face value, there is nothing in reg 16(b) which suggests that the presence in the UK relied on needs to be ‘lawful’ so the fact that your client has actually been in the UK for the relevant period would seem to cut it. It seems to be just a binary test - either you were present in the UK or you were somewhere else.

DWP could argue that there is an implicit requirement that the presence in the UK for the purposes of the PPT needs to be ‘lawful’ but the counter-argument is that if this was the intention, the drafter could easily have just written ‘lawfully present’ instead of ‘present’ and they didn’t.

Rebecca Lough
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Welfare rights - Greenwich Council

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Many thanks both - will give it a bash

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Macmillan benefits team, Citizens Advice Bristol

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Please let us know the outcome.

Mr Jim
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Asylum & Roma Team, Social Work Services, Glasgow City Council

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You don’t say on what basis she was given her Indefinite Leave to Remain. She may be exempt from the past presence test if her Indefinite Leave to Remain was given on the basis of Refugee Leave or Humanitarian Protection, or if she has leave as the dependent family member of someone who has Refugee Leave or Humanitarian Protection. See p. 1630 CPAG Welfare Benefits and Tax Credits Handbook 2020/2021.

Hope this helps.