2020 No. 683

Social Security

The Social Security (Income-Related Benefits) (Persons of Northern Ireland - Family Members) (Amendment) Regulations 2020

Made

Laid before Parliament

Coming into force

The Secretary of State for Work and Pensions makes the following Regulations in exercise of the powers conferred by sections 123(1)(a) and (d), 137(1) and (2)(a) and (i) and 175(1), (3) and (4) of the Social Security Contributions and Benefits Act 19921, sections 35(1) and 36(2) and (4)(a) of, and paragraph 11(2) of Schedule 1 to, the Jobseekers Act 19952, sections 1(5)(a) and 17(1) of the State Pension Credit Act 20023, sections 24(1) and 25(2), (3) and (5)(a) of, and paragraph 5 of Schedule 2 to, the Welfare Reform Act 20074 and sections 4(5)(a), 40 and 42(1), (2) and (3)(a) of the Welfare Reform Act 20125.

In accordance with section 173(1)(b) of the Social Security Administration Act 19926, the Secretary of State has obtained the agreement of the Social Security Advisory Committee that proposals in respect of these Regulations should not be referred to it.

In relation to regulations 5 and 6, the Secretary of State has consulted with organisations appearing to the Secretary of State to be representative of the authorities concerned7.

Citation and commencement1

These Regulations may be cited as the Social Security (Income-Related Benefits) (Persons of Northern Ireland - Family Members) (Amendment) Regulations 2020 and come into force on 24th August 2020.

Income Support (General) Regulations 19872

1

The Income Support (General) Regulations 19878 are amended as follows.

2

In regulation 21AA (special cases: supplemental – persons from abroad)9—

a

after paragraph (3A) insert—

3B

Paragraph (3A)(a) does not apply to a person who—

a

has a right to reside granted by virtue of being a family member of a relevant person of Northern Ireland; and

b

would have a right to reside under the Immigration (European Economic Area) Regulations 201610 if the relevant person of Northern Ireland were an EEA national, provided that the right to reside does not fall within paragraph (3).

b

in paragraph (4)(zb) omit the words “within the meaning of regulation 7(1)(a), (b) or (c) of those Regulations”;

c

after paragraph (4)(zc) insert—

zd

a family member of a relevant person of Northern Ireland, with a right to reside which falls within paragraph (3A)(a), provided that the relevant person of Northern Ireland falls within sub-paragraph (za), or would do so but for the fact that they are not an EEA national;

d

after paragraph (4) insert—

5

In this regulation—

  • “EEA national” has the meaning given in regulation 2(1) of the Immigration (European Economic Area) Regulations 2016;

  • “family member” has the meaning given in regulation 7(1)(a), (b) or (c) of the Immigration (European Economic Area) Regulations 2016 except that regulation 7(4) of those Regulations does not apply for the purposes of paragraphs (3B) and (4)(zd);

  • “relevant person of Northern Ireland” has the meaning given in Annex 1 of Appendix EU to the immigration rules made under section 3(2) of the Immigration Act 197111.

Jobseeker’s Allowance Regulations 19963

1

The Jobseeker’s Allowance Regulations 199612 are amended as follows.

2

In regulation 85A (special cases: supplemental – persons from abroad)13—

a

after paragraph (3A) insert—

3B

Paragraph (3A)(a) does not apply to a person who—

a

has a right to reside granted by virtue of being a family member of a relevant person of Northern Ireland; and

b

would have a right to reside under the Immigration (European Economic Area) Regulations 2016 if the relevant person of Northern Ireland were an EEA national, provided that the right to reside does not fall within paragraph (3A).

b

in paragraph (4)(zb) omit the words “within the meaning of regulation 7(1)(a), (b) or (c) of those Regulations”;

c

after paragraph (4)(zc) insert—

zd

a family member of a relevant person of Northern Ireland, with a right to reside which falls within paragraph (3A)(a), provided that the relevant person of Northern Ireland falls within sub-paragraph (za), or would do so but for the fact that they are not an EEA national;

d

after paragraph (4) insert—

5

In this regulation—

  • “EEA national” has the meaning given in regulation 2(1) of the Immigration (European Economic Area) Regulations 2016;

  • “family member” has the meaning given in regulation 7(1)(a), (b) or (c) of the Immigration (European Economic Area) Regulations 2016 except that regulation 7(4) of those Regulations does not apply for the purposes of paragraphs (3B) and (4)(zd);

  • “relevant person of Northern Ireland” has the meaning given in Annex 1 of Appendix EU to the immigration rules made under section 3(2) of the Immigration Act 1971.

State Pension Credit Regulations 20024

1

The State Pension Credit Regulations 200214 are amended as follows.

2

In regulation 2 (persons not in Great Britain)15—

a

after paragraph (3A) insert—

3B

Paragraph (3A)(a) does not apply to a person who—

a

has a right to reside granted by virtue of being a family member of a relevant person of Northern Ireland; and

b

would have a right to reside under the Immigration (European Economic Area) Regulations 2016 if the relevant person of Northern Ireland were an EEA national, provided that the right to reside does not fall within paragraph (3).

b

in paragraph (4)(zb) omit the words “within the meaning of regulation 7(1)(a), (b) or (c) of those Regulations”;

c

after paragraph (4)(zc) insert—

zd

a family member of a relevant person of Northern Ireland, with a right to reside which falls within paragraph (3A)(a), provided that the relevant person of Northern Ireland falls within sub-paragraph (za), or would do so but for the fact that they are not an EEA national;

d

after paragraph (4) insert—

5

In this regulation—

  • “EEA national” has the meaning given in regulation 2(1) of the Immigration (European Economic Area) Regulations 2016;

  • “family member” has the meaning given in regulation 7(1)(a), (b) or (c) of the Immigration (European Economic Area) Regulations 2016 except that regulation 7(4) of those Regulations does not apply for the purposes of paragraphs (3B) and (4)(zd);

  • “relevant person of Northern Ireland” has the meaning given in Annex 1 of Appendix EU to the immigration rules made under section 3(2) of the Immigration Act 1971.

Housing Benefit Regulations 20065

1

The Housing Benefit Regulations 200616 are amended as follows.

2

In regulation 10 (persons from abroad)17—

a

after paragraph (3AA) insert—

3AB

Paragraph (3AA)(a) does not apply to a person who—

a

has a right to reside granted by virtue of being a family member of a relevant person of Northern Ireland; and

b

would have a right to reside under the Immigration (European Economic Area) Regulations 2016 if the relevant person of Northern Ireland were an EEA national, provided that the right to reside does not fall within paragraph (3A).

b

in paragraph (3B)(zb) omit the words “within the meaning of regulation 7(1)(a), (b) or (c) of those Regulations”;

c

after paragraph (3B)(zc) insert—

zd

a family member of a relevant person of Northern Ireland, with a right to reside which falls within paragraph (3AA)(a), provided that the relevant person of Northern Ireland falls within sub-paragraph (za), or would do so but for the fact that they are not an EEA national;

d

in paragraph (6)—

i

before the definition of “refugee” insert—

  • “EEA national” has the meaning given in regulation 2(1) of the Immigration (European Economic Area) Regulations 2016;

  • “family member” has the meaning given in regulation 7(1)(a), (b) or (c) of the Immigration (European Economic Area) Regulations 2016 except that regulation 7(4) of those Regulations does not apply for the purposes of paragraphs (3AB) and (3B)(zd);

ii

after the definition of “refugee” insert—

  • “relevant person of Northern Ireland” has the meaning given in Annex 1 of Appendix EU to the immigration rules made under section 3(2) of the Immigration Act 1971.

Housing Benefit (Persons who have attained the qualifying age for state pension credit) Regulations 20066

1

The Housing Benefit (Persons who have attained the qualifying age for state pension credit) Regulations 200618 are amended as follows.

2

In regulation 10 (persons from abroad)19—

a

after paragraph (4ZA) insert—

4ZB

Paragraph (4ZA)(a) does not apply to a person who —

a

has a right to reside granted by virtue of being a family member of a relevant person of Northern Ireland; and

b

would have a right to reside under the Immigration (European Economic Area) Regulations 2016 if the relevant person of Northern Ireland were an EEA national, provided that the right to reside does not fall within paragraph (4).

b

in paragraph (4A)(zb) omit the words “within the meaning of regulation 7(1)(a), (b) or (c) of those Regulations”;

c

after paragraph (4A)(zc) insert—

zd

a family member of a relevant person of Northern Ireland, with a right to reside which falls within paragraph (4ZA)(a), provided that the relevant person of Northern Ireland falls within sub-paragraph (za), or would do so but for the fact that they are not an EEA national;

d

in paragraph (6) —

i

before the definition of “refugee” insert—

  • “EEA national” has the meaning given in regulation 2(1) of the Immigration (European Economic Area) Regulations 2016;

  • “family member” has the meaning given in regulation 7(1)(a), (b) or (c) of the Immigration (European Economic Area) Regulations 2016 except that regulation 7(4) of those Regulations does not apply for the purposes of paragraphs (4ZB) and (4A)(zd);

ii

after the definition of “refugee” insert—

  • “relevant person of Northern Ireland” has the meaning given in Annex 1 of Appendix EU to the immigration rules made under section 3(2) of the Immigration Act 1971.

Employment and Support Allowance Regulations 20087

1

The Employment and Support Allowance Regulations 200820 are amended as follows.

2

In regulation 70 (special cases: supplemental – persons from abroad)21—

a

after paragraph (3A) insert—

3B

Paragraph (3A)(a) does not apply to a person who—

a

has a right to reside granted by virtue of being a family member of a relevant person of Northern Ireland; and

b

would have a right to reside under the Immigration (European Economic Area) Regulations 2016 if the relevant person of Northern Ireland were an EEA national, provided that the right to reside does not fall within paragraph (3).

b

in paragraph (4)(zb) omit the words “within the meaning of regulation 7(1)(a), (b) or (c) of those Regulations”;

c

after paragraph (4)(zc) insert—

zd

a family member of a relevant person of Northern Ireland, with a right to reside which falls within paragraph (3A)(a), provided that the relevant person of Northern Ireland falls within sub-paragraph (za), or would do so but for the fact that they are not an EEA national;

d

after paragraph (4) insert—

5

In this regulation—

  • “EEA national” has the meaning given in regulation 2(1) of the Immigration (European Economic Area) Regulations 2016;

  • “family member” has the meaning given in regulation 7(1)(a), (b) or (c) of the Immigration (European Economic Area) Regulations 2016 except that regulation 7(4) of those Regulations does not apply for the purposes of paragraphs (3B) and (4)(zd);

  • “relevant person of Northern Ireland” has the meaning given in Annex 1 of Appendix EU to the immigration rules made under section 3(2) of the Immigration Act 1971.

Universal Credit Regulations 20138

1

The Universal Credit Regulations 201322 are amended as follows.

2

In regulation 9 (persons treated as not being in Great Britain)23—

a

after paragraph (3) insert—

3A

Paragraph (3)(c)(i) does not apply to a person who—

a

has a right to reside granted by virtue of being a family member of a relevant person of Northern Ireland; and

b

would have a right to reside under the EEA Regulations if the relevant person of Northern Ireland were an EEA national, provided that the right to reside does not fall within paragraph (3)(a) or (b)

b

in paragraph (4)(b) omit the words “within the meaning of regulation 7(1)(a), (b) or (c) of the EEA Regulations”;

c

after paragraph (4)(c) insert—

ca

a family member of a relevant person of Northern Ireland, with a right to reside which falls within paragraph (3)(c)(i), provided that the relevant person of Northern Ireland falls within paragraph (4)(a), or would do so but for the fact that they are not an EEA national;

d

after paragraph (4) insert—

5

In this regulation—

  • “EEA national” has the meaning given in regulation 2(1) of the EEA Regulations;

  • “family member” has the meaning given in regulation 7(1)(a), (b) or (c) of the EEA Regulations, except that regulation 7(4) of the EEA Regulations does not apply for the purposes of paragraphs (3A) and (4)(ca);

  • “relevant person of Northern Ireland” has the meaning given in Annex 1 of Appendix EU to the immigration rules made under section 3(2) of the Immigration Act 1971.

Signed by authority of the Secretary of State for Work and Pensions

Justin TomlinsonMinister of StateDepartment for Work and Pensions
EXPLANATORY NOTE

(This note is not part of the Regulations)

These Regulations amend the Income Support (General) Regulations 1987 (S.I. 1987/1967), the Jobseeker’s Allowance Regulations 1996 (S.I. 1996/207), the State Pension Credit Regulations 2002 (S.I. 2002/1792), the Housing Benefit Regulations 2006 (S.I. 2006/213), the Housing Benefit (Persons who have attained the qualifying age for state pension credit) Regulations 2006 (S.I. 2006/214), the Employment and Support Allowance Regulations 2008 (S.I. 2008/794) and the Universal Credit Regulations 2013 (S.I. 2013/376) (together the “income-related benefit regulations”).

The income-related benefit regulations provide that a claimant is ineligible for benefits where they are a “person from abroad”, in the case of state pension credit, a “person not in Great Britain”, or in the case of universal credit, a “person to be treated as not being in Great Britain”. A person is a person from abroad, a person not in Great Britain or a person to be treated as not being in Great Britain (as the case may be) if he or she is not habitually resident in the United Kingdom, the Channel Islands, the Isle of Man or the Republic of Ireland. No person shall be treated as habitually resident without a relevant right to reside in the place where he or she is habitually resident. However, certain categories of people are exempt from this habitual residence test.

These Regulations amend the income-related benefit regulations to reflect that family members of relevant persons of Northern Ireland can now apply for leave to enter, or remain in, the United Kingdom under Appendix EU to the immigration Rules made under section 3(2) of the Immigration Act 1971 (c.77) (“EUSS leave”).

The amendments create an exception that where a family member of a relevant person of Northern Ireland has been granted limited EUSS leave, that leave is relevant for the purposes of establishing habitual residence. This is subject to the proviso that if the relevant person of Northern Ireland were an EEA national, the family member would have a right to reside not otherwise excluded by the income related benefits regulations.

The amendments provide that subject to certain conditions, a family member of a relevant person of Northern Ireland who has been granted limited EUSS leave will not be considered as being a person from abroad, a person not in Great Britain or a person to be treated as not being in Great Britain (as the case may be), thereby adding them to the list of persons exempt from the habitual residence test. The relevant conditions are that, at the point the family member makes a claim, the relevant person of Northern Ireland would be considered a qualified person under the Immigration (European Economic Area) Regulations 2016 (S.I. 2016/1052) (the “EEA Regulations”), either as a worker or a self-employed person. Alternatively, where the family member would have a right to reside under the EEA regulations because of their relationship with a person of Northern Ireland, they will have access to income related benefits as long as that right to reside is not excluded by the relevant regulations. The relevant person of Northern Ireland is treated as if they are an EEA national and would therefore satisfy these conditions whether or not they are an EEA national (as defined in the EEA Regulations).

The amendments add relevant definitions to the income related benefit regulations. They define “EEA national” and “family member” by reference to the EEA Regulations. They define a “relevant person of Northern Ireland” by reference to Appendix EU to the immigration rules.

An impact assessment has not been produced for this instrument as it has no impact on businesses or civil society organisations.