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The Disability Assistance for Children and Young People (Scotland) Regulations 2021

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Residence and presence conditionsS

This section has no associated Policy Notes

5.—(1) An individual satisfies the residence and presence conditions where on any day that individual—

(a)is ordinarily resident in Scotland,

(b)is habitually resident in the common travel area,

[F1(c)is not a person subject to immigration control within the meaning of section 115(9) of the Immigration and Asylum Act 1999,]

(d)is present in the common travel area, and

(e)has been present in the common travel area for a period of, or for periods amounting in the aggregate to, not less than 26 weeks in the 52 weeks immediately preceding that day.

(2) In the case of a child under the age of 6 months, paragraph (1) is to apply as if in sub-paragraph (e) for the reference to 26 weeks there was substituted a reference to 13 weeks.

(3) Where in any particular case a child has by virtue of paragraph (2) entitlement to the care component immediately before the day the child attains the age of 6 months, then until the child attains the age of 12 months, paragraph (1)(e) shall continue to apply in that child’s case as if for the reference to 26 weeks there was substituted a reference to 13 weeks.

(4) The residence condition set out in paragraph (1)(a) does not apply in relation to the care component where on any day the individual—

(a)is habitually resident in Ireland,

(b)has a genuine and sufficient link to Scotland, and

(c)is an individual—

(i)to whom the Convention on Social Security between the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of Ireland signed at Dublin on 1 February 2019(1), as modified from time to time in accordance with any provision of it, applies, and

(ii)in respect of whom the United Kingdom is, as a result, competent for payment of long term care benefits.

(5) The reference in paragraph (4)(b) to an individual’s link to Scotland being sufficient is to it being sufficiently close that if the individual were not entitled to Child Disability Payment, paragraph (4) would be incompatible with Convention on Social Security between the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of Ireland signed at Dublin on 1 February 2019.

[F2(5A) Paragraph (1)(c) does not apply to a person subject to immigration control within the meaning of section 115(9) of the Immigration and Asylum Act 1999 where they are a person who—

(a)is lawfully working in the United Kingdom and is a national of a state with which the United Kingdom has concluded an agreement which replaces in whole or in part an agreement under Article 217 of the Treaty on the Functioning of the European Union which has ceased to apply to, and in, the United Kingdom, providing, in the field of social security, for the equal treatment of workers who are nationals of the signatory state and their families,

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

(c)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, to be responsible for their maintenance and accommodation.]

(6) A relevant individual is treated as satisfying the residence and presence conditions set out in paragraph (1)(a), [F3(b) and (d)] where on any day that individual is outside the common travel area—

(a)by reason of their capacity mentioned in paragraph (7)(b) provided that individual satisfied the residence and presence conditions set out in paragraph (1)(a), [F3(b) and (d)] immediately prior to the start of their employment mentioned in paragraph (7)(b), or

(b)by reason of being a person mentioned in paragraph (7)(a) living with an individual to whom sub-paragraph (a) applies.

(7) A “relevant individual” in paragraph (6) means an individual who is—

(a)living with a person mentioned in sub-paragraph (b) and—

(i)is the child, step-child or a child in care of that person, or

(ii)is married to or in a civil partnership with that person, or is living together with that person as if they were married or in a civil partnership, or

(b)outside the common travel area in their capacity as a—

(i)serving member of Her Majesty’s forces, or

(ii)civil servant.

(8) An individual is to be treated as meeting the presence conditions set out in paragraphs (1)(d) and (e) for any period where that individual is—

(a)outside the common travel area in their capacity as an aircraft worker or mariner, or

(b)in employment prescribed for the purposes of section 120 (employment at sea (continental shelf operations)) of the Social Security Contributions and Benefits Act 1992(2) in connection with continental shelf operations.

(9) Where an individual—

(a)does not meet [F4either or both of the presence conditions] set out in paragraph [F5(1)(d) and (e)] on the date the application is received by the Scottish Ministers, and

(b)appears to the Scottish Ministers likely to meet [F6both of those conditions], unless there is a change of circumstances, on a date not later than 3 months after the application was received,

the Scottish Ministers may choose the date within that 3 month period on which the application is to be treated as being made.

[F7(10) The past presence condition in paragraph (1)(e) does not apply where an individual—

(a)has a terminal illness within the meaning of regulation 15, or

(b)is an individual described in paragraph (7).]

[F8(10A) The habitual residence condition in paragraph (1)(b) and the past presence condition in paragraph (1)(e) do not apply where an individual—

(a)has leave to enter or remain in the United Kingdom granted under the immigration rules by virtue of—

(i)the Afghan Relocations and Assistance Policy, or

(ii)the previous scheme for locally-employed staff in Afghanistan (sometimes referred to as the ex-gratia scheme),

(b)has been granted discretionary leave outside the immigration rules as a dependant of a person referred to in sub-paragraph (a); F9...

(c)has leave granted under the Afghan Citizens Resettlement Scheme.

[F10(d)has been granted refugee status or humanitarian protection under the immigration rules, F11...

(e)has leave to enter or remain in the United Kingdom as the dependant of a person granted refugee status or humanitarian protection under the immigration rules] F12[F13...

(f)has leave to enter or remain in the United Kingdom granted under or outside the immigration rules, [F14has a right] of abode in the United Kingdom within the meaning given in section 2 of the Immigration Act 1971 F15 [F16or does not require leave to enter or remain in the United Kingdom in accordance with section 3ZA of that Act], where the individual—

(i)was residing in Ukraine immediately before 1 January 2022, and

(ii)left Ukraine in connection with the Russian invasion which took place on 24 February 2022]][F17, [F18or]

(g)has leave to enter or remain in the United Kingdom granted under or outside the immigration rules, has 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 individual—

(i)was residing in Sudan before 15 April 2023, and

(ii)left Sudan in connection with the violence which rapidly escalated on 15 April 2023 in Khartoum and across Sudan][F19, or

(h)has leave to enter or remain in the United Kingdom granted under or outside the immigration rules, has 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 individual—

(i)was residing in Israel, the West Bank, the Gaza Strip, East Jerusalem, the Golan Heights or Lebanon immediately before 7 October 2023, and

(ii)left Israel, the West Bank, the Gaza Strip, East Jerusalem, the Golan Heights or Lebanon in connection with the Hamas terrorist attack in Israel on 7 October 2023 or the violence which rapidly escalated in the region following the attack]

[F20(11) For the purposes of [F21paragraph (10A)] —

(a)“immigration rules” means the rules laid before Parliament under section 3(2) of the Immigration Act 1971,

(b)“the Afghan Citizens Resettlement Scheme” means the scheme announced by the United Kingdom Government on 18 August 2021.]

Textual Amendments

F151971 c. 77. Section 2 was amended by section 39(2) of the British Nationality Act 1981 (c. 61) and S.I. 2019/745.

Commencement Information

I1Reg. 5 in force at 26.7.2021, see reg. 1

(1)

2019 CP 49.

(2)

1992 c.4, relevantly amended by paragraph 26(a) and (b) of schedule 3 and paragraph 8 of schedule 7 of the Social Security Contributions (Transfer of Functions, etc.) Act 1999 (c.2), paragraph 70 of schedule 7 of the Social Security Act 1998 (c.14), section 12(2) to (4) of the National Insurance Contributions Act 2014 (c.7) and paragraph 30 of schedule 4 of the Petroleum Act 1998 (c.17).

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