2023 No. 532

Social Security

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

Made

Laid before Parliament

Coming into force

The Secretary of State makes the following Regulations in exercise of the powers conferred by sections 64(1), 70(4), 71(6), 123(1)(a) and (d), 137(2)(a) and 175(3) and (4) of the Social Security Contributions and Benefits Act 19921, section 36(2) of, and paragraph 11(2) of Schedule 1 to, the Jobseekers Act 19952, section 1(5)(a) of the State Pension Credit Act 20023, section 25(2) and (3) of, and paragraph 5 of Schedule 2 to, the Welfare Reform Act 20074 and sections 4(5)(a), 42(2), 77(3), 92(1) and 94(2) and (3)(a) of the Welfare Reform Act 20125.

In respect of the provisions relating to housing benefit, the Secretary of State has not consulted organisations appearing to be representative of the authorities concerned because it appears to the Secretary of State to be inexpedient to do so by reason of the urgency of the matter6.

For the same reason, it appears to the Secretary of State to be inexpedient to refer the proposals to make these Regulations to the Social Security Advisory Committee7.

PART 1PRELIMINARY

Citation, commencement and extent1

1

These Regulations may be cited as the Social Security (Habitual Residence and Past Presence) (Amendment) Regulations 2023 and come into force on 15th May 2023.

2

Part 2, and this Part in so far as it relates to Part 2, extend to England and Wales and Scotland8.

3

Part 3, and this Part in so far as it relates to Part 3, extend to England and Wales only9.

PART 2AMENDMENTS TO BENEFIT LEGISLATION EXTENDING TO ENGLAND AND WALES AND SCOTLAND

Amendments to income-related benefit legislation2

1

In the provisions specified in paragraph (2), after sub-paragraph (zzc) 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 198713;

b

regulation 85A(4) of the Jobseeker’s Allowance Regulations 199614;

c

regulation 2(4) of the State Pension Credit Regulations 200215;

d

regulation 10(3B) of the Housing Benefit Regulations 200616;

e

regulation 10(4A) of the Housing Benefit (Persons who have attained the qualifying age for state pension credit) Regulations 200617; and

f

regulation 70(4) of the Employment and Support Allowance Regulations 200818.

Amendments to the Universal Credit Regulations 20133

In regulation 9(4) of the Universal Credit Regulations 201319, after sub-paragraph (zc) 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;

PART 3AMENDMENTS TO BENEFIT LEGISLATION EXTENDING TO ENGLAND AND WALES ONLY

Amendments to disability and carer’s benefit legislation4

1

In the provisions specified in paragraph (2)—

a

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

b

after sub-paragraph (f) insert—

; 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 197620;

b

regulation 2C(1) of the Social Security (Attendance Allowance) Regulations 199121; and

c

regulation 2C(1) of the Social Security (Disability Living Allowance) Regulations 199122.

Amendments to the Social Security (Personal Independence Payment) Regulations 20135

In regulation 23A(1) of the Social Security (Personal Independence Payment) Regulations 201323—

a

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

b

after sub-paragraph (f) insert—

; 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

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

Mims DaviesParliamentary Under Secretary of StateDepartment for Work and Pensions
EXPLANATORY NOTE

(This note is not part of the Regulations)

Part 2 of these Regulations enables certain persons to access income-related benefits upon arrival in Great Britain from Sudan provided they meet the other relevant entitlement conditions.

That Part amends 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) (“the income-related benefit regulations”).

The income-related benefit regulations provide that a person is ineligible for benefit where they are a “person from abroad”, “a person not in Great Britain” (for the purposes of the State Pension Credit Regulations 2002) or “a person treated as not being in Great Britain” (for the purposes of the Universal Credit Regulations 2013). 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 (c. 77);

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.

Part 3 of these Regulations enables certain persons to access disability and carer’s benefits upon arrival in England and Wales 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.

That Part amends the Social Security (Invalid Care Allowance) Regulations 1976 (S.I. 1976/409), the Social Security (Attendance Allowance) Regulations 1991 (S.I. 1991/2740), the Social Security (Disability Living Allowance) Regulations 1991 (S.I. 1991/2890) and the Social Security (Personal Independence Payment) Regulations 2013 (S.I. 2013/377) 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 Great Britain 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.

A full impact assessment has not been produced for this instrument as no, or no significant, impact on the private, voluntary or public sector is foreseen.