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HMRC internal manual

Child Benefit Technical Manual

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HM Revenue & Customs
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Residence and immigration: immigration - exceptions to the general exclusion

Even if people are subject to immigration control as described in CBTM10120, they may still be able to qualify for child benefit if they are covered by one of the following exceptions.

 
 
 
 
 
 

People subject to a maintenance undertaking

The Social security (Immigration and Asylum) Consequential Amendments Regulations 2000, regulation 2 (paragraph 4 in Part 2 of the schedule) for Great Britain

The Social Security (Immigration and Asylum) Consequential Amendments Regulations (Northern Ireland) 2000, regulation 2 (paragraph 4 in Part 2 of the schedule) for Northern Ireland

A person who has been given leave to enter, or remain in, the UK by the Secretary of State upon an undertaking by another person or persons pursuant to the immigration rules within the meaning of the Immigration Act 1971, to be responsible for his maintenance and accommodation is, for the purposes of child benefit, treated as a person who is not subject to immigration control and not excluded from entitlement.

These people are referred to as ‘a sponsored immigrant’.

Workers from States, which the EC has an agreement for equal treatment in the field of social security

The Social security (Immigration and Asylum) Consequential Amendments Regulations 2000, regulation 2 (paragraph 2 in Part 2 of the schedule) for Great Britain

The Social Security (Immigration and Asylum) Consequential Amendments Regulations (Northern Ireland) 2000, regulation 2 (paragraph 2 in Part 2 of the schedule) for Northern Ireland

People who are subject to immigration control are not excluded from child benefit if they are:

  • Nationals of a State which the European Community has concluded an agreement for equal treatment for workers in the field of social security; and
  • Lawfully working in the UK.

Currently, the countries covered by such agreements are Algeria, Morocco, San Marino, Tunisia and Turkey.

The requirement to be ‘lawfully working’ in the UK can be satisfied by a person who does not have a restriction on working in the UK and is either:

  • Working in the UK; or
  • Has retired from work on reaching pension age or given up work to look after children or because of pregnancy, widowhood, sickness or invalidity, an accident at work or an industrial disease.

A family member of a EEA or Swiss national

The Social security (Immigration and Asylum) Consequential Amendments Regulations 2000, regulation 2 (paragraph 1 in Part 2 of the schedule) for Great Britain

The Social Security (Immigration and Asylum) Consequential Amendments Regulations (Northern Ireland) 2000, regulation 2 (paragraph 1 in Part 2 of the schedule) for Northern Ireland

People who are subject to immigration control are not excluded from entitlement to child benefit if they are a family member (spouse or partner) of a person who is a UK, EEA or Swiss national.

If the child being claimed for is an EEA national, this would also allow for this exception to apply.

Covered by a social security agreement that the UK has agreed with another country

The Social security (Immigration and Asylum) Consequential Amendments Regulations 2000, regulation 2(3) for Great Britain

The Social Security (Immigration and Asylum) Consequential Amendments Regulations (Northern Ireland) 2000, regulation 2(3) for Northern Ireland.

People who are subject to immigration control are not excluded from entitlement to child benefit if they are a national of, or a person who has come to live in the UK from, a country that has a reciprocal social security agreement with the UK which covers child benefit.

Currently, the countries that have such an agreement are Barbados, Canada, Israel, Jersey and Guernsey, Mauritius, New Zealand and the former Yugoslavia (i.e. applies to Croatia, Bosnia-Herzegovina, Serbia, and Montenegro, and the former Yugoslav Republic of Macedonia)

Transitional rules for those in receipt of Child Benefit before October 1996

The Social security (Immigration and Asylum) Consequential Amendments Regulations 2000, regulation 12(10) for Great Britain

The Social Security (Immigration and Asylum) Consequential Amendments Regulations (Northern Ireland) 2000, regulation 11(10) for Northern Ireland.

Persons subject to immigration control who were entitled to child benefit before October 1996 are not excluded from entitlement to child benefit because of their immigration status (i.e. subject to immigration control).

Refugees and backdating

The UK has international law obligations in relation to refugees. Those obligations arise because the UK is a contacting party to the Convention regarding the Status of Refugees 1951.

Upper Tribunal Decision CF/0048/2009

A person seeking asylum in the UK is a refugee in the UK from the moment they are recognised as such under the Convention regarding the Status of Refugees 1951. The process of claiming asylum and the Secretary of State allowing that asylum claim is essentially an administrative procedure enabling the Secretary of State to recognise the claimant as a refugee under the 1951 Convention. Where the Secretary of State recognises a person as a refugee he does so from the date they first claimed asylum in the UK.

Example 1

Mr X arrives in the UK with his children and claims asylum immediately on 23 May 2005. On 26 November 2006 the Secretary of State approves Mr X’s claim for asylum. The Secretary of State’s approval of Mr X’s claim for asylum does not confer the status of refugee on Mr X; rather it recognises that Mr X was a refugee on 23 May 2005 when he claimed asylum and has continued to be a refugee from that date.

Example 2

Mrs Y arrives in the UK with her children and claims asylum immediately on 10 April 2004. The Secretary of State refuses that asylum claim on 10 October 2004 and Mrs Y’s appeal against that decision is dismissed on 13 January 2005.

Mrs Y submits a new claim for asylum on 26 January 2005 and the Secretary of State refuses that claim on 1 March 2006.

Mrs Y Submits a further new claim for asylum on 30 April 2007, this time supported by new evidence. The Secretary of State accepts this claim on 20 January 2008 and grants Mrs Y indefinite leave to remain in the UK.

Mrs Y is recognised as a refugee from the date she submitted her first claim for asylum on 10 April 2004, notwithstanding that status was not recognised until her third application for asylum.

The Child Benefit and Guardian’s Allowance (Administration) Regulations 2003, regulation 6(2)(d) and (3).

Since 6 April 2004, a person who has been recorded as a refugee by the Secretary of State may claim child benefit and provided he or she makes a claim within three months of receiving the notification that they have been recorded as a refugee, shall be treated as having made that child benefit claim on the date of their first application for asylum.

Example 3

Mr X (see example1, above) claimed asylum on 23 May 2005. On 26 November 2006, the Secretary of State recognised Mr X’s refugee status. Mr X makes his claim for child benefit on 15 December 2006. Because Mr X has made his child benefit claim within three months of the Secretary of State recognising his refugee status, his child benefit claim is treated as having been made on the date he first claimed asylum. So his child benefit claim is treated as having been made on 23 May 2005.

Example 3A

Mr X (see examples 1 and 3 above) makes his claim to child benefit on 20 June 2007. Because this is more than three months after the Secretary of State recognised his refugee status, the claim cannot be treated as having been made on the date he first claimed asylum. His claim must therefore be dealt with under the normal time limit for claims rules. See CBTM02020 which deals with these rules.

Example 4

Mrs Y (see example 2, above) claimed asylum firstly on 10 April 2004 and again on 26 January 2005. Both these claims for asylum were unsuccessful. But she claimed a third time on 30 April 2007; this time with new supporting evidence. The Secretary of State accepted this third claim and recognised Mrs Y’s refugee status on 20 January 2008.

Mrs Y makes her claim for child benefit on 1 March 2008. Because this claim is made within three months of the Secretary of State recognising her refugee status the claim is treated as having been made on the date she first claimed asylum. That is Mrs Y’s child benefit claim is treated as having been made on 10 April 2004.

Example 4A

The circumstances here are exactly the same as in examples 2 and 4 above. However, in the example Mrs Y does not claim child benefit until 5 August 2008. As this is more than three months after the Secretary of State recognised her refugee status, Mrs Y cannot benefit from the rule allowing her child benefit claim to be treated as having been made on the date she first claimed asylum. Her claim for child benefit is therefore dealt with under the normal time limit for claim rules. See CBTM02020 which deals with these rules.