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The Social Security (Persons from Abroad) (Miscellaneous Amendments) Regulations (Northern Ireland) 1996

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Citation, commencement and interpretation

1.—(1) These Regulations may be cited as the Social Security (Persons from Abroad) (Miscellaneous Amendments) Regulations (Northern Ireland) 1996 and shall come into operation on 5th February 1996.

(2) The Interpretation Act (Northern Ireland) 1954(1) shall apply to these Regulations as it applies to a Measure of the Assembly.

Amendment of the Social Security (Invalid Care Allowance) Regulations

2.  In regulation 9 of the Social Security (Invalid Care Allowance) Regulations (Northern Ireland) 1976(2) (conditions relating to residence and presence in Northern Ireland)—

(a)in paragraph (1) after sub-paragraph (a) there shall be inserted the following sub-paragraph—

(aa)subject to paragraph (1A), his right to reside or remain in Northern Ireland is not subject to any limitation or condition; and;

(b)after paragraph (1) there shall be inserted the following paragraph—

(1A) For the purposes of paragraph (1)(aa), a person’s right to reside or remain in Northern Ireland is not to be treated as if it were subject to a limitation or condition if—

(a)he is a person recorded by the Secretary of State as a refugee within the definition in Article 1 of the Convention relating to the Status of Refugees done at Geneva on 28th July 1951(3), as extended by Article I(2) of the Protocol relating to the Status of Refugees done at New York on 31st January 1967(4);

(b)he is a person who has been granted exceptional leave outside the provisions of the immigration rules within the meaning of the Immigration Act 1971(5) to remain in the United Kingdom by the Secretary of State;

(c)he is a national, or a member of the family of a national, of a State contracting party to the Agreement on the European Economic Area signed at Oporto on 2nd May 1992 as adjusted by the Protocol signed at Brussels on 17th March 1993(6); or

(d)he is a person who is—

(i) lawfully working in Northern Ireland and is a national of a State with which the European Community has concluded an Agreement under Article 238(7) of the Treaty establishing the European Community(8) providing, in the field of social security, for the equal treatment of workers who are nationals of the signatory State and their families, or

(ii)a member of the family of, and living with, such a person..

Amendment of the Social Security (Severe Disablement Allowance) Regulations

3.  In regulation 3 of the Social Security (Severe Disablement Allowance) Regulations (Northern Ireland) 1984(9) (conditions relating to residence and presence)—

(a)in paragraph (1)(a) after head (i) there shall be inserted the following head—

(ia)subject to paragraph (1A), his right to reside or remain in Northern Ireland is not subject to any limitation or condition,;

(b)after paragraph (1) there shall be inserted the following paragraph—

(1A) For the purposes of paragraph (1)(a)(ia), a person’s right to reside or remain in Northern Ireland is not to be treated as if it were subject to a limitation or condition if—

(a)he is a person recorded by the Secretary of State as a refugee within the definition in Article 1 of the Convention relating to the Status of Refugees done at Geneva on 28th July 1951, as extended by Article I(2) of the Protocol relating to the Status of Refugees done at New York on 31st January 1967;

(b)he is a person who has been granted exceptional leave outside the provisions of the immigration rules within the meaning of the Immigration Act 1971 to remain in the United Kingdom by the Secretary of State;

(c)he is a national, or a member of the family of a national, of a State contracting party to the Agreement on the European Economic Area signed at Oporto on 2nd May 1992 as adjusted by the Protocol signed at Brussels on 17th March 1993; or

(d)he is a person who is—

(i)lawfully working in Northern Ireland and is a national of a State with which the European Community has concluded an Agreement under Article 238 of the Treaty establishing the European Community providing, in the field of social security, for the equal treatment of workers who are nationals of the signatory State and their families, or

(ii)a member of the family of, and living with, such a person..

Amendment of the Income Support (General) Regulations

4.—(1) The Income Support (General) Regulations (Northern Ireland) 1987(10) shall be amended in accordance with paragraphs (2) to (4).

(2) In regulation 21(3) (special cases) in the first definition of “person from abroad” after paragraph (h)(11) there shall be added the following paragraphs—

(i)has been given leave to enter, or remain in, the United Kingdom by the Secretary of State upon an undertaking given by another person in writing in pursuance of immigration rules within the meaning of the 1971 Act, to be responsible for his maintenance and accommodation; and he has not been resident in the United Kingdom for a period of at least 5 years beginning with the date of entry or the date on which the undertaking was given in respect of him, whichever date is the later; or

(j)while he is a person to whom any of the definitions in paragraphs (a) to (i) of this definition applies, submits a claim to the Secretary of State, which is not finally determined, for asylum under the Convention(12)..

(3) In regulation 70 (urgent cases)—

(a)in paragraph (3)—

(i)for sub-paragraph (c) there shall be substituted the following sub-paragraph—

(c)is a person to whom paragraph (i) of that definition (sponsored immigrant) applies and the person who gave the undertaking to provide for his maintenance and accommodation has died;;

(ii)sub-paragraphs (e) to (j) shall be omitted;

(b)in paragraph (3A)—

(i)for sub-paragraph (a) there shall be substituted the following sub-paragraphs—

(a)is an asylum seeker when he submits on his arrival (other than on his re-entry) in the United Kingdom from a country outside the Common Travel Area a claim for asylum to the Secretary of State that it would be contrary to the United Kingdom’s obligations under the Convention for him to be removed from, or required to leave, the United Kingdom and that claim is recorded by the Secretary of State as having been made; or

(aa)becomes, while present in Northern Ireland, an asylum seeker when—

(i)the Secretary of State makes a declaration to the effect that the country of which that person is a national is subject to such a fundamental change in circumstances that he would not normally order the return of a person to that country,

(ii)he submits, within a period of 3 months from the day that declaration was made, a claim for asylum to the Secretary of State under the Convention, and

(iii)his claim for asylum under that Convention is recorded by the Secretary of State as having been made; and;

(ii)for sub-paragraph (b) there shall be substituted the following sub-paragraph—

(b)ceases to be an asylum seeker—

(i)in the case of a claim for asylum which, on or after 5th February 1996, is recorded by the Secretary of State as having been determined (other than on appeal) or abandoned, on the date on which it is so recorded, or

(ii)in the case of a claim for asylum which is recorded as determined before 5th February 1996 and in respect of which there is either an appeal pending on 5th February 1996 or an appeal is made within the time limits specified in rule 5 of the Asylum Appeals (Procedure) Rules 1993(13) (notice of appeal), on the date on which that appeal is determined.;

(c)in paragraph (3B) at the end there shall be added “; and “the Common Travel Area” means the United Kingdom, the Channel Islands, the Isle of Man and the Republic of Ireland collectively”.

(4) In regulation 71(2) (applicable amounts in urgent cases) sub-paragraphs (b) to (f) shall be omitted.

Amendment of the Housing Benefit (General) Regulations

5.  In regulation 7A of the Housing Benefit (General) Regulations (Northern Ireland) 1987(14) (persons from abroad)—

(a)in paragraph (4) after sub-paragraph (e)(15) there shall be added the following sub-paragraphs—

(f)has been given leave to enter, or remain in, the United Kingdom by the Secretary of State upon an undertaking given by another person in writing in pursuance of immigration rules within the meaning of the 1971 Act, to be responsible for his maintenance and accommodation; and he has not been resident in the United Kingdom for a period of at least 5 years beginning with the date of entry or the date on which the undertaking was given in respect of him, whichever date is the later, or

(g)while he is a person to whom any of the definitions in paragraph (2) or sub-paragraphs (a) to (d) and (f) applies, submits a claim to the Secretary of State, which is not finally determined, for asylum under the Convention relating to the Status of Refugees.;

(b)for paragraph (5) there shall be substituted the following paragraph—

(5) This paragraph applies to a person who—

(a)is an asylum seeker and for this purpose a person is an asylum seeker when he submits on his arrival (other than on his re-entry) in the United Kingdom from a country outside the Common Travel Area a claim for asylum to the Secretary of State that it would be contrary to the United Kingdom’s obligations under the Convention relating to the Status of Refugees for him to be removed from, or required to leave, the United Kingdom and that claim is recorded by the Secretary of State as having been made;

(b)becomes, while present in Northern Ireland, an asylum seeker and for this purpose a person is an asylum seeker when—

(i)the Secretary of State makes a declaration to the effect that the country of which that person is a national is subject to such a fundamental change in circumstances that he would not normally order the return of a person to that country,

(ii)he submits, within a period of 3 months from the day that declaration was made, a claim for asylum to the Secretary of State under the Convention relating to the Status of Refugees, and

(iii)his claim for asylum under that Convention is recorded by the Secretary of State as having been made;

(c)is a person to whom paragraph (4)(f) (sponsored immigrant) applies and the person who gave the undertaking to provide for his maintenance and accommodation has died; or

(d)is in receipt of income support.;

(c)after paragraph (5) there shall be inserted the following paragraph—

(5A) For the purposes of paragraph (5)(a) and (b), a person ceases to be an asylum seeker—

(a)in the case of a claim for asylum which, on or after 5th February 1996, is recorded by the Secretary of State as having been determined (other than on appeal) or abandoned, on the date on which it is so recorded; or

(b)in the case of a claim for asylum which is recorded as determined before 5th February 1996 and in respect of which there is either an appeal pending on 5th February 1996 or an appeal is made within the time limits specified in rule 5 of the Asylum Appeals (Procedure) Rules 1993 (notice of appeal), on the date on which that appeal is determined.;

(d)in paragraph (7) after the definition of “the 1971 Act” there shall be inserted the following definitions—

“the Common Travel Area” means the United Kingdom, the Channel Islands, the Isle of Man and the Republic of Ireland collectively;

“the Convention relating to the Status of Refugees” means the Convention relating to the Status of Refugees done at Geneva on 28th July 1951, as extended by Article I(2) of the Protocol relating to the Status of Refugees done at New York on 31st January 1967;.

Amendment of the Family Credit (General) Regulations

6.  In regulation 3 of the Family Credit (General) Regulations (Northern Ireland) 1987(16) (circumstances in which a person is treated as being or as not being in Northern Ireland)—

(a)in paragraph (1) after sub-paragraph (a) there shall be inserted the following sub-paragraph—

(aa)subject to paragraph (1A), his right to reside or remain in Northern Ireland is not subject to any limitation or condition;;

(b)after paragraph (1) there shall be inserted the following paragraph—

(1A) For the purposes of paragraph (1)(aa), a person’s right to reside or remain in Northern Ireland is not to be treated as if it were subject to a limitation or condition if—

(a)he is a person recorded by the Secretary of State as a refugee within the definition in Article 1 of the Convention relating to the Status of Refugees done at Geneva on 28th July 1951, as extended by Article I(2) of the Protocol relating to the Status of Refugees done at New York on 31st January 1967;

(b)he is a person who has been granted exceptional leave outside the provisions of the immigration rules within the meaning of the Immigration Act 1971 to remain in the United Kingdom by the Secretary of State;

(c)he is a national, or a member of the family of a national, of a State contracting party to the Agreement on the European Economic Area signed at Oporto on 2nd May 1992 as adjusted by the Protocol signed at Brussels on 17th March 1993; or

(d)he is a person who is—

(i)lawfully working in Northern Ireland and is a national of a State with which the European Community has concluded an Agreement under Article 238 of the Treaty establishing the European Community providing, in the field of social security, for the equal treatment of workers who are nationals of the signatory State and their families, or

(ii)a member of the family of, and living with, such a person..

Amendment of the Social Security (Payments on account, Overpayments and Recovery) Regulations

7.  In regulation 2 of the Social Security (Payments on account, Overpayments and Recovery) Regulations (Northern Ireland) 1988(17) (making of interim payments)—

(a)in paragraph (1) at the beginning there shall be inserted “Subject to paragraph (1A),”;

(b)after paragraph (1) there shall be inserted the following paragraph—

(1A) Paragraph (1) shall not apply pending the determination of an appeal unless the Department is of the opinion that there is entitlement to benefit..

Amendment of the Social Security (Attendance Allowance) Regulations

8.  In regulation 2 of the Social Security (Attendance Allowance) Regulations (Northern Ireland) 1992(18) (conditions as to residence and presence in Northern Ireland)—

(a)in paragraph (1)(a) after head (i) there shall be inserted the following head—

(ia)subject to paragraph (1A), his right to reside or remain in Northern Ireland is not subject to any limitation or condition,;

(b)after paragraph (1) there shall be inserted the following paragraph—

(1A) For the purposes of paragraph (1)(a)(ia), a person’s right to reside or remain in Northern Ireland is not to be treated as if it were subject to a limitation or condition if—

(a)he is a person recorded by the Secretary of State as a refugee within the definition in Article 1 of the Convention relating to the Status of Refugees done at Geneva on 28th July 1951, as extended by Article I(2) of the Protocol relating to the Status of Refugees done at New York on 31st January 1967;

(b)he is a person who has been granted exceptional leave outside the provisions of the immigration rules within the meaning of the Immigration Act 1971 to remain in the United Kingdom by the Secretary of State;

(c)he is a national, or a member of the family of a national, of a State contracting party to the Agreement on the European Economic Area signed at Oporto on 2nd May 1992 as adjusted by the Protocol signed at Brussels on 17th March 1993;

(d)he is a person who is—

(i)lawfully working in Northern Ireland and is a national of a State with which the European Community has concluded an Agreement under Article 238 of the Treaty establishing the European Community providing, in the field of social security, for the equal treatment of workers who are nationals of the signatory State and their families, or

(ii)a member of the family of, and living with, such a person; or

(e)he is a person in respect of whom there is an order under section 155 of the Social Security Administration (Northern Ireland) Act 1992 giving effect to a reciprocal agreement which, for the purposes of attendance allowance, has the effect that periods of residence or presence in another country are to be treated as periods of residence or presence in Northern Ireland..

Amendment of the Social Security (Disability Living Allowance) Regulations

9.  In regulation 2 of the Social Security (Disability Living Allowance) Regulations (Northern Ireland) 1992(19) (conditions as to residence and presence in Northern Ireland)—

(a)in paragraph (1)(a) after head (i) there shall be inserted the following head—

(ia)subject to paragraph (1A), his right to reside or remain in Northern Ireland is not subject to any limitation or condition,;

(b)after paragraph (1) there shall be inserted the following paragraph—

(1A) For the purposes of paragraph (1)(a)(ia), a person’s right to reside or remain in Northern Ireland is not to be treated as if it were subject to a limitation or condition if—

(a)he is a person recorded by the Secretary of State as a refugee within the definition in Article 1 of the Convention relating to the Status of Refugees done at Geneva on 28th July 1951, as extended by Article I(2) of the Protocol relating to the Status of Refugees done at New York on 31st January 1967;

(b)he is a person who has been granted exceptional leave outside the provisions of the immigration rules within the meaning of the Immigration Act 1971 to remain in the United Kingdom by the Secretary of State;

(c)he is a national, or a member of the family of a national, of a State contracting party to the Agreement on the European Economic Area signed at Oporto on 2nd May 1992 as adjusted by the Protocol signed at Brussels on 17th March 1993;

(d)he is a person who is—

(i)lawfully working in Northern Ireland and is a national of a State with which the European Community has concluded an Agreement under Article 238 of the Treaty establishing the European Community providing, in the field of social security, for the equal treatment of workers who are nationals of the signatory State and their families, or

(ii)a member of the family of, and living with, such a person; or

(e)he is a person in respect of whom there is an order under section 155 of the Administration Act giving effect to a reciprocal agreement which, for the purposes of disability living allowance, has the effect that periods of residence or presence in another country are to be treated as periods of residence or presence in Northern Ireland..

Amendment of the Disability Working Allowance (General) Regulations

10.  In regulation 5 of the Disability Working Allowance (General) Regulations (Northern Ireland) 1992(20) (circumstances in which a person is treated as being or as not being in Northern Ireland)—

(a)in paragraph (1) after sub-paragraph (a) there shall be inserted the following sub-paragraph—

(aa)subject to paragraph (1A), his right to reside or remain in Northern Ireland is not subject to any limitation or condition;;

(b)after paragraph (1) there shall be inserted the following paragraph—

(1A) For the purposes of paragraph (1)(aa), a person’s right to reside or remain in Northern Ireland is not to be treated as if it were subject to a limitation or condition if—

(a)he is a person recorded by the Secretary of State as a refugee within the definition in Article 1 of the Convention relating to the Status of Refugees done at Geneva on 28th July 1951, as extended by Article I(2) of the Protocol relating to the Status of Refugees done at New York on 31st January 1967;

(b)he is a person who has been granted exceptional leave outside the provisions of the immigration rules within the meaning of the Immigration Act 1971 to remain in the United Kingdom by the Secretary of State;

(c)he is a national, or a member of the family of a national, of a State contracting party to the Agreement on the European Economic Area signed at Oporto on 2nd May 1992 as adjusted by the Protocol signed at Brussels on 17th March 1993; or

(d)he is a person who is—

(i)lawfully working in Northern Ireland and is a national of a State with which the European Community has concluded an Agreement under Article 238 of the Treaty establishing the European Community providing, in the field of social security, for the equal treatment of workers who are nationals of the signatory State and their families, or

(ii)a member of the family of, and living with, such a person..

Saving

11.—(1) Where, before the coming into operation of these Regulations, a person who becomes an asylum seeker under regulation 70(3A)(a) of the Income Support Regulations or regulation 7A(5)(a)(i) of the Housing Benefit Regulations is entitled to benefit under any of those Regulations, those provisions of those Regulations shall have effect as if regulation 4(2) and (3)(b)(i) or 5(a) and (b) of these Regulations had not been made.

(2) Where, before the coming into operation of these Regulations, a person, in respect of whom an undertaking was given by another person to be responsible for his maintenance and accommodation, claimed benefit to which he is entitled or is receiving benefit, under the Income Support Regulations or the Housing Benefit Regulations, those Regulations shall have effect as if regulation 4 or 5 of these Regulations had not been made.

(3) Where, before the coming into operation of these Regulations, a person is receiving attendance allowance, disability living allowance, disability working allowance, family credit, invalid care allowance or severe disablement allowance under the Social Security (Attendance Allowance) Regulations (Northern Ireland) 1992, the Social Security (Disability Living Allowance) Regulations (Northern Ireland) 1992, the Disability Working Allowance (General) Regulations (Northern Ireland) 1992, the Family Credit (General) Regulations (Northern Ireland) 1987, the Social Security (Invalid Care Allowance) Regulations (Northern Ireland)1976 or the Social Security (Severe Disablement Allowance) Regulations (Northern Ireland) 1984, those Regulations shall, until such time as his entitlement to that benefit is reviewed under section 23(21) or 28 of the Social Security Administration (Northern Ireland) Act 1992, have effect as if regulation 2, 3, 6, 8, 9 or 10 of these Regulations had not been made.

(4) In this regulation—

“the Housing Benefit Regulations” means the Housing Benefit (General) Regulations (Northern Ireland) 1987;

“the Income Support Regulations” means the Income Support (General) Regulations (Northern Ireland) 1987.

Sealed with the Official Seal of the Department of Health and Social Services for Northern Ireland on

L.S.

W. G. Purdy

Assistant Secretary

15th January 1996.

The Department of the Environment for Northern Ireland hereby consents to regulations 5 and 11 of the foregoing Regulations.

Sealed with the Official Seal of the Department of the Environment for Northern Ireland on

L.S.

R. E. Aiken

Assistant Secretary

15th January 1996.

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