2023 No. 80

Social Security

The Social Security (Habitual Residence and Past Presence) (Amendment) Regulations (Northern Ireland) 2023

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, 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, paragraph 5 of Schedule 2 to the Welfare Reform Act (Northern Ireland) 20076 and Articles 9(5)(a), 48(1), 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 (2)(d) and (e) of that regulation.

Citation and commencementI11

These Regulations may be cited as the Social Security (Habitual Residence and Past Presence) (Amendment) Regulations (Northern Ireland) 2023 and shall come into operation on 18th May 2023.

Annotations:
Commencement Information
I1

Reg. 1 in operation at 18.5.2023, see reg. 1

Amendment of income-related benefit legislationI22

1

In the provisions specified in paragraph (2) after sub-paragraph (zzc)9 insert—

zzd

a person who was residing in Sudan before 15th April 2023, left Sudan in connection with the violence which rapidly escalated on 15th April 2023 in Khartoum and across Sudan and—

i

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

ii

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

iii

does not require leave to enter or remain in the United Kingdom in accordance with section 3ZA of that Act12;

2

Those provisions 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).

Annotations:
Commencement Information
I2

Reg. 2 in operation at 18.5.2023, see reg. 1

Amendment of the Universal Credit RegulationsI33

In regulation 9(4) of the Universal Credit Regulations (Northern Ireland) 201619 (persons treated as not being in Northern Ireland) after sub-paragraph (zc)20 insert—

zd

a person who was residing in Sudan before 15th April 2023, left Sudan in connection with the violence which rapidly escalated on 15th April 2023 in Khartoum and across Sudan and—

i

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

ii

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

iii

does not require leave to enter or remain in the United Kingdom in accordance with section 3ZA of that Act,

Annotations:
Commencement Information
I3

Reg. 3 in operation at 18.5.2023, see reg. 1

Amendment of disability and carer’s benefit legislationI44

1

In the provisions specified in paragraph (2)—

a

at the end of sub-paragraph (e)21 omit “or”;

b

after sub-paragraph (f)22 add—

or

g

leave to enter or remain in the United Kingdom granted under or outside the immigration rules, a right of abode in the United Kingdom within the meaning given in section 2 of the Immigration Act 1971 or does not require leave to enter or remain in the United Kingdom in accordance with section 3ZA of that Act, where the person—

i

was residing in Sudan before 15th April 2023; and

ii

left Sudan in connection with the violence which rapidly escalated on 15th April 2023 in Khartoum and across Sudan.

2

Those provisions are—

a

regulation 9C(1) of the Social Security (Invalid Care Allowance) Regulations (Northern Ireland) 197623 (refugees and certain persons with leave to enter or remain in the United Kingdom24);

b

regulation 2C(1) of the Social Security (Attendance Allowance) Regulations (Northern Ireland) 199225 (refugees and certain persons with leave to enter or remain in the United Kingdom);

c

regulation 2C(1) of the Social Security (Disability Living Allowance) Regulations (Northern Ireland) 199226 (refugees and certain persons with leave to enter or remain in the United Kingdom).

Annotations:
Commencement Information
I4

Reg. 4 in operation at 18.5.2023, see reg. 1

Amendment of the Personal Independence Payment RegulationsI55

In regulation 23A(1) of the Personal Independence Payment Regulations (Northern Ireland) 201627 (refugees and certain persons with leave to enter or remain in the United Kingdom28)—

a

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

b

after sub-paragraph (f)30 add—

or

g

leave to enter or remain in the United Kingdom granted under or outside the immigration rules, a right of abode in the United Kingdom within the meaning given in section 2 of the Immigration Act 1971 or does not require leave to enter or remain in the United Kingdom in accordance with section 3ZA of that Act, where C—

i

was residing in Sudan before 15th April 2023; and

ii

left Sudan in connection with the violence which rapidly escalated on 15th April 2023 in Khartoum and across Sudan.

Annotations:
Commencement Information
I5

Reg. 5 in operation at 18.5.2023, see reg. 1

Sealed with the Official Seal of the Department for Communities on 17th May 2023

(L.S.)David TarrA 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 (2)(d) and (e) of that regulation

Sealed with the Official Seal of the Department of Finance on 17th May 2023

(L.S.)Patrick NeesonA 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 Sudan 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 and 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 who were residing in Sudan before 15th April 2023, who left Sudan in connection with the violence which rapidly escalated on 15th April 2023 in Khartoum and across Sudan and who—

a

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

b

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

c

do not require leave to enter or remain in the United Kingdom in accordance with section 3ZA of that Act.

Regulations 4 and 5 enable certain persons to access disability and carer’s benefits upon arrival in Northern Ireland from Sudan where they were residing in Sudan and left Sudan in accordance with the criteria 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. 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. The amendments also have the effect of removing the habitual residence requirement for entitlement to disability and carer’s benefits which would otherwise apply to these persons.

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.