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UC, couples and PSIC
I’m trying to find out what the situation is with UC where one member of the couple is subject to immigration control.
As far as I can see, the PSIC would actually meet the basic conditions in Section 4. They wouldn’t fall foul of the requirement to be in GB (assuming they actually have leave to enter/remain and not here illegally.)
In those circumstances, the couple would have to make a joint claim as none of the exceptions in Reg 3 apply which would allow the non-PSIC to claim as single person.
But then the general rule that a PSIC is not entitled to UC applies as a result of Section 115(2) of the Immigration and Asylum Act.
Where does this leave the non-PSIc member of the couple. S/he cannot claim as a single person and claiming as a couple would on the face of it be doomed to fail as 115(2) would prevent it?
Am I missing something?
I think the answer might be found in reg 9. Reg 2 of the Pension Credit Regs is in similar terms.
The difference with SPC is that a person subject to immigration control was exprerssly excldued from being a member of the same household as the claimant by Reg 5(1)(h). I can’t see an equivalent provision for UC.
A PSIC will not necessarily fail the hab res test in Reg 9. The situation would be where you have a British citizen married to an American for example. The American national would have some form of leave to enter and remain. That leave would be subject to no recourse to public funds and so the American would be a PSIC. But they would satisfy the hab res test as they have a right to reside and (assuming they’ve been in the UK long enough) would be habitually resident.
I’ve searched the UC Regs and the WRA for any references to subject to immigration control and I can’t find a provision which would deal with this situation. It may be I’m just losing it, I’m trying to write a guide to UC for our advisers and I’m now stuck trying to get an answer to this (while the rest of the guide is unfortunately not writing itself!)
I’m not sure reg 5(1)(h) adds to or takes anything away. The importance of that reg is to preclude an applicable amount at the couple rate. And, it obviously has no relevance for single claimants who would still be caught by reg 2. Like you, I really struggled with the issue of having leave to enter and remain and the rtr and was unable to resolve it. So I fell back on reg 2 and simply thought that if there was no rtr there, then maybe not in reg 3 (UC) in order to try and take the issue forward. I’ve also searched the regs and the Act for definitions and can’t find anything either.
After further thought I think my comparison with Pension Credit doesn’t hold up. For PC there would be a right to reside but s115 of the Immigration and Asylum Act solves the problem by just disentitling the claimant. I just can’t find a way past it. It seems that there could be a huge gap here in the UC regs (I hate the word lacuna), as you imply. However, I’m loath to think so as I can’t believe that it wouldn’t have been picked up before
Thanks Nevip, as you say it is unlikely that this wouldn’t have been picked up but I’m still struggling to find an answer.
I’ve just had to fudge it in the guide I’m writing and state “it’s not clear” what happens in this circumstance! I’ll need to get an answer at some point though.
Dave
Brevity has an awful lot to recommend it but this is surely taking it too far.
A!
Is this like a daily serial and we’ll get the next word tomorrow?
How exciting.
Well, it makes a damn sight more sense than most of the UC regs!
There is now an answer to my original problem! The Universal Credit (Consequential, Supplementary, Incidental and Miscellaneous Provisions) Regulations insert into Reg 3(3) of the UC Regs the following provision:
(e) is a person to whom section 115 of the Immigration and Asylum Act 1999 (exclusion from benefits) applies
That makes UC broadly similar to the current benefit position where the member of the couple who is not PSIC claims as a single person (although joint income and capital still taken into account.) It is however potentially worse than the current position for tax credits where couples like this can claim jointly in some circumstances.
Bump ..
Reg 3(3)(e) looks to be still on the books, but it’s difficult to find any “official” or specific info on joint claims where one is PSIC (is it in CPAG anywhere?).
Is there any reason this exception isn’t mentioned in the gov.uk info leaflet, as it is for tax credits?