Child benefit backdated for refugees
Two of our clients have had their asylum appeals allowed recently, and I’m trying to figure out how quickly I need to act to make the three-month timeframe for claiming backdated child benefit.
One already has leave to remain as a survivor of trafficking, and has recently been awarded child benefit back to October 2021. Her asylum appeal hearing was in late February, the decision promulgated by the first tier tribunal first week of March, after which the Home Office had 14 days to appeal, which they did not do. She has not received a new BRP confirming she has refugee status instead of limited leave to remain, nor the standard ‘determination of asylum claim’ letter. I had intended to wait for this latter letter to arrive, or her BRP, whichever arrives first, as this seems like the official proof that she has been recorded as a refugee, and it’s otherwise trying to explain to child benefit that the Home Office not appealing within 14 days after the tribunal decision was promulgated (which would be 29th March) means in effect that she will be granted refugee status. When should the clock start on the three months you have to request backdated child benefit within?
Another client does not already have leave to remain but is in a similar situation otherwise; her asylum refusal appeal hearing was in early January this year, with a decision promulgated first week of February. The Home Office again did not appeal, and she received a letter mid-Feb inviting her to enrol her and her son’s biometrics, which also said ‘your appeal has been allowed’. Again, this doesn’t officially say she has been granted refugee status as a result, and she doesn’t have the formal letter notifying her of this, nor her BRP (and therefore NINo either, even if that’s not strictly necessary to receive CB). If the letter of mid-Feb could be construed as her being informed that she has been recorded as a refugee, then I’d like to help her claim backdated child benefit ASAP, so it’s requested within 3 months, but if that’s going to complicate things further and isn’t necessary, I will wait until she has definitive proof of being granted refugee status!
There is a case called Tkachuk v SSWP  EWCA Civ 515 where the claimant had been successful at what was then an IAT and had been granted asylum on 12 October 2001 however it was not until 7 January 2002 that she was notified formally by the Home Office that she had been recorded as a refugee. She was deemed to have received that letter on 10 January 2002. The Court appears to have proceeded on the basis that the time limit ran from the date she was notified by the Home Office, rather than the Tribunal decision, however it was not really the focus of the case. The focus of that case was that she hadn’t made her backdated claim until many months letter because the letter had only been sent to her solicitors who apparently had not communicated the fact that she had been recognised as a refugee to her until much later.
I can’t claim to be hugely familiar with the various stages of correspondence in these cases. Perhaps your clients will be sent letters of the type issued to Ms Tkachuk formally notifying her that she has been recorded as a refugee and specifically noting the potential availability of backdated benefit. Perhaps things have substantially changed (I don’t think they had BRPs back then). I think that if you are in any doubt, it would be best to treat the time limit as running from the earliest point it could be said to run (the FtT decision). Surely the worst that can happen through doing so is to end up in a skirmish over paperwork, whereas the risk of leaving things too late is that the claimant may lose the possibility of claiming.
Whilst this is not the topic of the question. I do think there is also a need to consider potential CTC backdating in these cases. The Court of Appeal in R (DK) v HMRC  EWCA Civ 120 has upheld the conclusion that, despite UC, it is still possible for a refugee to backdate their CTC claim to the start of their asylum claim. This entitlement must be claimed within a month of the date on which the claimant is notified that they have been recorded as a refugee. If your clients are potentially able to benefit from that decision, they will need to make sure they put their claims in within that timescale.
I would advise both your service-users to contact their lawyers regarding the BRP and the decision letter asap. Their lawyers can chase this up with the Home Office.
Regarding claims for Child Benefit made without a NI number - my experience is that if there is no NI number then the claim will not be processed and sit in a “drawer”. I still make the claim then once there is a NI number request a MR and backdating to the earliest possible date.
Hope this helps.
I did Tkachuk up to the Commissioner level before sending it off to PLP to do the Court of Appeal stage- as Elliot says the timing thing in that case was that she had not claimed within the required time of the Home Office sending her grant of status to her solicitors- Court held that receipt by her solicitor was to be treated as receipt by her applying the common law of agency.
The Court in Tkachuk were however right to calculate time from when solicitors got home office letter and not from when the Tribunal allowed her immigration appeal. The reason is as follows:
Unlike with a social security appeal where the FTT actually remakes the decision of the SSWP, that is not how immigration and asylum appeals work: there the FTT simply tells the SSHD the decision is unlawful and it is then for the SSHD to remake it as directed by the FTT- see for example MUN v SSWP (IS) UKUT 373 (AAC) which is summarised here: https://www.rightsnet.org.uk/welfare-rights/caselaw/item/Whether-claimant-aquired-leave-to-remain-at-date-of-immigration-tribunals-
13. The decision of the Immigration and Asylum Chamber found that the claimant had been the victim of domestic violence and that her Article 8 rights would be breached if she had to leave the United Kingdom. The judge did not make a direction under section 87. The decision was in accordance with section 86(3), which merely provides for the circumstances in which an appeal must be allowed. It does not authorise the tribunal itself to make an immigration decision and the judge did not do so. That reading of section 86(3) is reinforced by section 87, which provides for the tribunal to direct that leave to remain be given. That would not be necessary if that were the effect of the tribunal’s decision under section 86(3). Moreover, even if the tribunal had given a direction under section 87, the application of that provision is potentially conditional as qualified by section 87(3). My understanding is that the tribunal’s decision gives rise to a public law duty that it be implemented unless circumstances justify a different decision. For example: the person might, after succeeding on appeal, commit an offence that would justify a different decision on leave. The need to take account of those sort of circumstances explains the limitation of the powers of the tribunal under section 86(3).
14. Given the terms of the immigration legislation, the Secretary of State and the tribunal were correct that leave to remain was not given to the claimant until after the date of the decision on her claim for income support. That was too late for the tribunal to take it into account. As in the IG case, it is not necessary for me to decide whether the key date is the date on the stamp in the passport or the date of the notification letter.
I would therefore just confirm with HO that they have not given the new status - if they have not then backdated claim is premature. If they have and it not arrived with solicitor of claimant then if can prove that technically backdated claim time limit runs from when they know about the decision perhaps (which might count as notification).
I see for the second client that arguably the request to enroll biometrics could be viewed as grant of status (although I think that unlikely as does not in terms state she is a refugee)- perhaps a new claim just to protect her and then another one if actually gets a letter.