Can we pay?

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    Clt (Iranian) arrives in the UK illegally 4 years ago. He was then 15 or so. He claims asylum but is refused. However due to his age he is granted discretionary leave to remain until he is 17 1/2. When he gets to this age he claims asylum again.

    This is refused by the UKBA and clt appeals. Due to problems wih his solicitor going bust he doesn’t get told about the date of the hearing which goes against him. The Judge found that the reason he says he can’t go back to Iran is inherently implausible.

    Section 115 of the Immigration and Asylum Act 1999 disqualifies persons who are ‘subject to immigration control’ from certain social security benefits (including HB/CTB) (sub-sections 1 and 3). The section sets its own internal definition of ‘subject to immigration control’ which is much more tightly drawn than the immigration law definition.
    Section 115(9) defines ‘subject to immigration control’ as being a person who is not a national of an EEA state and who:
    • requires leave to enter the UK but does not have it (i.e. an illegal entrant or overstayer or asylum seeker)
    • has leave to enter the UK but who is subject to a ‘no recourse to public funds’ condition
    • has leave to enter the UK given as a result of a maintenance undertaking
    • has leave to enter the UK only as a result of the fact that they are awaiting the outcome of an appeal against a decision to vary or refuse to vary limited leave.

    We think we can’t pay as he isn’t awaiting the outcome of any appeal as yet. In any case we think that once a decision is made that a clt is an overstayer HB can’t be paid – are we right?

    Our social services tell me that, in their view, he can get HB if he appeals this decision which he hasn’t yet as his new solicitors are trying to find his case papers from the now bust old solicitors.

    Help! I’m seriously unsure if we can pay or refuse.


    I would say he is a PSIC under the fourth head – s115(9)(d) – as soon as UKBA refused the second application. From that point on his leave is extended pending appeal but the effect of s115(9)(d) is that he is excluded from welfare entitlement while the appeal is going through. If he is now contemplating an appeal to the Upper Tribunal on fair hearing grounds that won’t change the fact that he is still within s115(9)(d).

    The CPAG guide argues that s115(9)(d) has no effect because it refers to repealed provisions, but surely the Interpretation Act 1978 would require the references to be read as if they refer to the current appeals procedure. In particular, para 17 of Schedule 4 to the 1999 Act, now repealed, is the perdecessor of s3C(2)(b) and (c) of the amended 1971 Act which is where extended leave pending an appeal now sits. I don’t agree with the analysis in CPAG


    Thanks Peter. PSIC is what exactly?


    Person Subject to Immigration Control. Pea-sick for short. it never seems to have caught on as a popular term, unlike the habitual residence equivalent term “PFA”.


    Cheers, I’m dreading this going to Tribunal 🙂


    [quote=Peter Barker]Pea-sick for short. it never seems to have caught on as a popular term[/quote]

    Peasick!!! Never heard it pronounced like that – it has thoroughly amused me.

    ….I should probably get out more….


    If he had a son subject to immigration control would the son be sea-sick?

    Must be that Friday feeling getting to me. 😉


    Peter, can I ask for your help again?

    His rep has e-mailed me as follows……

    I am not expert in this area of benefits and immigration law but having reviewed the arguments put forward by [clt’s rep] and her team I agree with their interpretation. I would also find it surprising if this issue has not already been determined by the courts or set out in guidance as it cannot be the first time this issue has come up.

    Section 115(1) of the Immigration and Asylum Act 1999 provides that no person is entitled to housing benefit whilst he is a person subject to immigration control unless he falls within such
    such category or description, or satisfies such conditions, as may be prescribed.

    Section 115(9) provides that “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;
    (b) has leave to enter or remain in the United Kingdom which is subject to a condition that he does not have recourse to public funds;
    (c) has leave to enter or remain in the United Kingdom given as a result of a maintenance undertaking; or
    (d) has leave to enter or remain in the United Kingdom only as a result of paragraph 17 of Schedule 4.

    Paragraph 17 schedule 4 of the 1999 Act was repealed by Schedule 9 of the Asylum and Immigration Act 2002.

    Pursuant to section 3C 1971 Act (as inserted by s118 2002 Act), there is still an automatic extension of leave while an appeal is pending against a decision to refuse to grant further leave to remain. The section applies if (a) a person who has limited leave to enter or remain in the United Kingdom applies to the Secretary of State for variation of the leave; (b) the application for variation is made before the leave expires, and; (c) the leave expires without the application for variation having been decided.

    Section 115 1999 Act has not been changed to say that people with leave under section 3C 1971 Act are ‘subject to immigration control’.

    It could therefore be argued that those who have automatic extensions of leave after making an in-time application, both while they are waiting for a Home Office decision and while they are appealing, do not appear to be ‘subject to immigration control’. They are not, therefore , excluded from benefits during these periods, provided their original leave was not subject to a public funds condition, or granted on the basis of a maintenance undertaking.


    Any help gratefully received.


    The counter-argument is as follows:

    Section 17(2)(a) of the Interpretation Act 1978 says that any reference to legislation that has been repealed and re-enacted “with or without modification” is to be interpreted as a reference to the re-enacted provisions. So where s115(9)(d) says “para 17 of Schedule 4” it should be read as “s3C of the 1971 Act”.

    Similarly, the rights of appeal referred to in the repealed Sched 4.17 have themselves been repealed: the equivalent appeal now lies under sections 82 and 84 of the 2002 Act (appeal against refusal to vary limited leave).

    I am just about to submit a case to FtT where exactly this issue arises. I searched for precedent, but I too could find none – it seems to be untested.


    Cheers Peter.

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