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The Social Security (Incapacity Benefit) (Miscellaneous Amendments) Regulations (Northern Ireland) 2000

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Conditions relating to residence or presence

15.—(1) The prescribed conditions for the purposes of section 30A(2A)(d) as to residence or presence in Northern Ireland in relation to any person on the relevant day shall be that on that day—

(a)he is ordinarily resident in Northern Ireland;

(b)he is not a person subject to immigration control within the meaning of section 115(9) of the Immigration and Asylum Act 1999(1) or he is a person to whom paragraph (5) applies;

(c)he is present in Northern Ireland; and

(d)he has been present in Northern Ireland for a period of, or for periods amounting in aggregate to, not less than 26 weeks in the 52 weeks immediately preceding that day.

(2) Where the relevant day falls within a period in which a person—

(a)receives tax-free emoluments; or

(b)is the spouse of a person who receives tax-free emoluments,

that person shall not be regarded as present in Northern Ireland unless that period is immediately preceded by a period of 4 years during which he was present in Northern Ireland for a period of not less than 156 weeks in aggregate.

(3) For the purposes of paragraph (2) “tax-free emoluments” means emoluments which are exempt from tax under any of the provisions listed in regulation 11(1) of the Child Benefit (General) Regulations (Northern Ireland) 1979(2).

(4) In determining whether a person satisfies paragraph (1), where a person is absent from Northern Ireland by reason only of the fact that—

(a)he is abroad in his capacity as a serving member of the forces, or he is the spouse, son, daughter, father, father-in-law, mother or mother-in-law of, and living with, a serving member of the forces abroad;

(b)he is in employment prescribed for the purposes of section 120 of the Social Security Contributions and Benefits Act 1992(3) in connection with continental shelf operations; or

(c)he is abroad in his capacity as an airman or mariner within the meaning of regulation 80 or 84 respectively of the Social Security (Contributions) Regulations (Northern Ireland) 1979(4),

any day or period of absence shall be treated as a day on which, or period during which, the person is resident or present, as the case may be, in Northern Ireland; and for the purposes of this paragraph “serving member of the forces” has the same meaning as in regulation 1(2) of those Regulations.

(5) This paragraph applies where a person is—

(a)a member of a family of a national of a State contracting party to the Agreement of the European Economic Area signed at Oporto on 2nd May 1992 as adjusted by the Protocol signed at Brussels on 17th March 1993(5);

(b)a person who is lawfully working in Northern Ireland and is a national of a State with which the Community has concluded an agreement under Article 310 of the Treaty of Amsterdam(6) amending the Treaty on European Union, the Treaties establishing the European Communities and certain related Acts(7) providing, in the field of social security, for the equal treatment of workers who are nationals of the signatory State and their families;

(c)a person who is a member of a family of, and living with, a person specified in sub-paragraph (b); or

(d)a person who has been given leave to enter, or remain in, the United Kingdom by the secretary of State upon an undertaking by another person or persons, pursuant to the immigration rules within the meaning of the Immigration Act 1971(8), to be responsible for his maintenance and accommodation.

(6) A person shall be treated as having satisfied the residence or presence conditions on any subsequent day of incapacity for work falling within the same period of incapacity for work where the residence or presence conditions specified in paragraphs (1) to (4) are satisfied on the first relevant day.

(2)

S.R. 1979 No. 5; regulation 11(1) was amended by regulation 3(2)(a) of S.R. 1996 No. 288

(3)

1992 c. 4; section 120 was amended by paragraph 70 of Schedule 7 to the Social Security Act 1998 (c. 14), paragraph 26 of Schedule 3 and paragraph 8 of Schedule 7 to the Social Security Contributions (Transfer of Functions, etc.) Act 1999 (c. 2)

(4)

S.R. 1979 No. 186, to which there are amendments not relevant to these regulations

(5)

O.J. No. L1, 3.1.1994, p. 572

(6)

Article 310 EC (ex Article 238)

(7)

O.J. No. C340, 10.11.1997, p. 1

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