2022 No. 149

Social Security

The Social Security (Habitual Residence and Past Presence) (Amendment) Regulations (Northern Ireland) 2022

Made

Coming into operation

The Department for Communities1 makes the following Regulations in exercise of the powers conferred by sections 64(1), 70(4), 71(6), 122(1)(a) and (d), 133(2)(a) and 171(3) and (4) of the Social Security Contributions and Benefits (Northern Ireland) Act 19922, Article 36(2)(a) of, and paragraph 11(2) of Schedule 1 to, the Jobseekers (Northern Ireland) Order 19953, and now vested in it4, sections 1(5)(a) and 19(1), (2)(a) and (3) of the State Pension Credit Act (Northern Ireland) 20025, section 25(2)(a) of, and paragraph 5 of Schedule 2 to, the Welfare Reform Act (Northern Ireland) 20076 and Articles 9(5)(a), 48(1) and (2)(a), 82(3), 97(1) and 99(1)(a) of the Welfare Reform (Northern Ireland) Order 20157.

Regulation 2 is made with the consent of the Department of Finance8, in so far as it relates to the provisions referred to in paragraph (5)(d) and (e) of that regulation.

Citation and commencement1

These Regulations may be cited as the Social Security (Habitual Residence and Past Presence) (Amendment) Regulations (Northern Ireland) 2022 and shall come into operation on 24th March 2022.

Amendment of income-related benefit legislation2

1

The provisions specified in paragraph (5) are amended in accordance with paragraphs (2) to (4).

2

In sub-paragraph (zzb)9 for “(h)(iv)” substitute “(h)”.

3

After sub-paragraph (zzb) insert—

zzc

a person in Northern Ireland who was residing in Ukraine immediately before 1st January 2022, left Ukraine in connection with the Russian invasion which took place on 24th February 2022 and—

i

has been granted leave in accordance with immigration rules made under section 3(2) of the Immigration Act 197110, or

ii

has a right of abode in the United Kingdom within the meaning given in section 2 of that Act11;

4

In sub-paragraph (h)12 omit the words from “where that leave is” to the end.

5

The provisions referred to in paragraph (1) are—

a

regulation 21AA(4) of the Income Support (General) Regulations (Northern Ireland) 198713 (special cases: supplemental–persons from abroad);

b

regulation 85A(4) of the Jobseeker’s Allowance Regulations (Northern Ireland) 199614 (special cases: supplemental–persons from abroad);

c

regulation 2(4) of the State Pension Credit Regulations (Northern Ireland) 200315 (persons not in Northern Ireland);

d

regulation 10(5) of the Housing Benefit Regulations (Northern Ireland) 200616 (persons from abroad);

e

regulation 10(5) of the Housing Benefit (Persons who have attained the qualifying age for state pension credit) Regulations (Northern Ireland) 200617 (persons from abroad);

f

regulation 70(4) of the Employment and Support Allowance Regulations (Northern Ireland) 200818 (special cases: supplemental – persons from abroad).

Amendment of the Universal Credit Regulations3

1

Regulation 9(4) of the Universal Credit Regulations (Northern Ireland) 201619 (persons treated as not being in Northern Ireland) is amended in accordance with paragraphs (2) to (4).

2

In sub-paragraph (zb)20 for “(e)(iv)” substitute “(e)”.

3

After sub-paragraph (zb) insert—

zc

a person in Northern Ireland who was residing in Ukraine immediately before 1st January 2022, left Ukraine in connection with the Russian invasion which took place on 24th February 2022 and—

i

has been granted leave in accordance with immigration rules made under section 3(2) of the Immigration Act 1971, or

ii

has a right of abode in the United Kingdom within the meaning given in section 2 of that Act;

4

In sub-paragraph (e)21 omit the words from “where that leave is” to the end.

Amendment of disability and carers benefit legislation4

1

The provisions specified in paragraph (4) are amended in accordance with paragraphs (2) and (3).

2

In paragraph (1)—

a

at the end of sub-paragraph (d)22 omit “or”;

b

after sub-paragraph (e) add—

or

f

leave to enter or remain in the United Kingdom granted under or outside the immigration rules or a right of abode in the United Kingdom within the meaning given in section 2 of the Immigration Act 1971 where the person—

i

was residing in Ukraine immediately before 1st January 2022; and

ii

left Ukraine in connection with the Russian invasion which took place on 24th February 2022.

3

In paragraph (1A)23 for “paragraph (1)(c), (d) or (e)” substitute “any sub-paragraph in paragraph (1)”.

4

The provisions referred to in paragraph (1) are—

a

regulation 9C of the Social Security (Invalid Care Allowance) Regulations (Northern Ireland) 197624 (refugees and certain persons with leave to enter or remain in the United Kingdom25);

b

regulation 2C of the Social Security (Attendance Allowance) Regulations (Northern Ireland) 199226 (refugees and certain persons with leave to enter or remain in the United Kingdom);

c

regulation 2C of the Social Security (Disability Living Allowance) Regulations (Northern Ireland) 199227 (refugees and certain persons with leave to enter or remain in the United Kingdom).

Amendment of the Personal Independence Payment Regulations5

1

Regulation 23A of the Personal Independence Payment Regulations (Northern Ireland) 201628 (refugees and certain persons with leave to enter or remain in the United Kingdom) is amended in accordance with paragraphs (2) and (3).

2

In paragraph (1)—

a

at the end of sub-paragraph (d)29 omit “or”;

b

after sub-paragraph (e) add—

or

f

leave to enter or remain in the United Kingdom granted under or outside the immigration rules or a right of abode in the United Kingdom within the meaning given in section 2 of the Immigration Act 1971 where C—

i

was residing in Ukraine immediately before 1st January 2022; and

ii

left Ukraine in connection with the Russian invasion which took place on 24th February 2022.

3

In paragraph (1A)30 for “paragraph (1)(c), (d) or (e)” substitute “any sub-paragraph in paragraph (1)”.

Sealed with the Official Seal of the Department for Communities on 23rd March 2022

(L.S.)Anne McClearyA senior officer of the Department for Communities

The Department of Finance hereby consents to regulation 2, in so far as it relates to the provisions referred to in paragraph (5)(d) and (e) of that regulation

Sealed with the Official Seal of the Department of Finance on 23rd March 2022

(L.S.)Barry ArmstrongA senior officer of the Department of Finance
EXPLANATORY NOTE

(This note is not part of the Regulations)

Regulation 1 provides for citation and commencement.

Regulations 2 and 3 enable certain persons to access income-related benefits upon arrival in Northern Ireland from Ukraine provided they meet the other relevant entitlement conditions.

Those regulations amend the Income Support (General) Regulations (Northern Ireland) 1987, the Jobseeker’s Allowance Regulations (Northern Ireland) 1996, the State Pension Credit Regulations (Northern Ireland) 2003 (“the State Pension Credit Regulations”), the Housing Benefit Regulations (Northern Ireland) 2006, the Housing Benefit (Persons who have attained the qualifying age for state pension credit) Regulations (Northern Ireland) 2006, the Employment and Support Allowance Regulations (Northern Ireland) 2008 and the Universal Credit Regulations (Northern Ireland) 2016 (“the Universal Credit Regulations”) - “the income-related benefit regulations”.

The income-related benefit regulations provide that a person is ineligible for benefit where he or she is a “person from abroad”, “a person not in Northern Ireland” (for the purposes of the State Pension Credit Regulations), or “a person treated as not being in Northern Ireland” (for the purposes of the Universal Credit Regulations); that is to say where the person is not habitually resident in the United Kingdom, the Channel Islands, the Isle of Man or the Republic of Ireland, subject to a list of exemptions.

Regulations 2(3) and 3(3) insert a new category into the list of persons who are exempted from having to satisfy the habitual residence test. Those persons are those in Northern Ireland who were residing in Ukraine immediately before 1st January 2022 and left Ukraine in connection with the Russian invasion which took place on 24th February 2022 and have either been granted leave in accordance with immigration rules made under section 3(2) of the Immigration Act 1971 or who have a right of abode in the United Kingdom within the meaning given in section 2 of that Act.

Regulations 2(4) and 3(4) make amendments so as to provide that any person who has leave outside the immigration rules is to be treated as exempted from having to satisfy the habitual residence test. Regulations 2(2) and 3(2) make amendments which are consequential to those amendments.

Regulations 4 and 5 enable certain persons to access disability and carer’s benefits upon arrival in Northern Ireland from Ukraine where they have left Ukraine for the reasons given above, provided they meet the other relevant entitlement conditions.

Regulation 4 amends the Social Security (Invalid Care Allowance) Regulations (Northern Ireland) 1976, the Social Security (Attendance Allowance) Regulations (Northern Ireland) 1992 and the Social Security (Disability Living Allowance) Regulations (Northern Ireland) 1992 respectively, and regulation 5 amends the Personal Independence Payment Regulations (Northern Ireland) 2016, to exempt the same group of people from the past presence test. This is the test which normally has to be fulfilled in order to claim Carer’s Allowance, Attendance Allowance, Disability Living Allowance and Personal Independence Payment respectively. The past presence test normally requires that an individual has been present in Northern Ireland for a specified period of time to be eligible for those benefits. These amendments also remove the habitual residence requirement for entitlement to disability benefits which would otherwise apply to refugees and those who have humanitarian protection, or their dependants.

These Regulations make in relation to Northern Ireland only provision corresponding to provision contained in Regulations made by the Secretary of State for Work and Pensions in relation to Great Britain and accordingly, by virtue of section 149(3) of, and paragraph 10 of Schedule 5 to, the Social Security Administration (Northern Ireland) Act 1992, are not subject to the requirement of section 149(2) of that Act for prior reference to the Social Security Advisory Committee.