UC and refugee family reunion

Henri Krishna looks at some problems that have arisen for some refugee universal credit (UC) claimants when they are joined by family members.

When the families of refugees join them under ‘family reunion’ rules, UC often stops or is suspended for a period and advances are refused. That results in destitution and reliance on discretionary funds, social work and food banks. This would appear to be at least in part due to a misunderstanding of the UC legislation by the DWP.

The basic (primary) legislation about UC awards and claims is in the Welfare Reform Act 2012 (‘WRA’). In particular, that makes provision (at sections 1 to 4) about claiming singly or jointly, for the basic and financial conditions, the requirement to be ‘in Great Britain’ and rules about who is in a couple. Exceptions regarding the basic and financial conditions are in regulation 3 of the Universal Credit Regulations 2013 (the ‘UC Regs’). Additional rules about claims by a couple are in regulation 9 of the Universal Credit, Personal Independence Payment, Jobseeker’s Allowance and Employment and Support Allowance (Claims and Payment) Regulations 2013 (the ‘UC C&P Regs’).

Even if the refugee is part of a couple, before her/his partner joins her/him in the UK, UC has to be claimed and awarded to her/him as a single person, as the partner is not in Great Britain (section 4 of the WRA), is not only temporarily absent (regulation 3 of the UC Regs) and is not part of the same household (section 39 of the WRA).

When a single UC claimant becomes part of a couple, that single award ends and UC must be claimed jointly. If they have not both been getting UC before, regulation 9(8) of the UC C&P Regs treats them as making a new joint claim from the date the couple formed – ie, the day after the single award of UC ends. Regulation 21(3B) of the UC Regs says the new joint award has the same assessment periods as the old single award.

Therefore, where a single claimant reports s/he has been joined by her/his partner following family reunion, her/his UC award should not be suspended but end.1Suspension of benefit is at the DWP’s discretion but should only be used in specified circumstances (these include where there is doubt about the claimant’s entitlement to benefit). Where it is used, it need not be complete; undisputed entitlement can continue to be paid and hardship should be considered. To start the new joint claim, the partner should be advised to set up a gov.uk account and start the UC claim process. In practice this will generate a ‘partner code’ that s/he then uses to join her/his UC account with the refugee’s. This should result in a new joint claim treated as made from the day after the single award ended, but with the same assessment periods and payment date as the old single award.

Where the family reunion consists of being joined by a dependent child but not a partner, that is a change of circumstances that affects the UC award but only to increase it (not end it). The change should be reported immediately but, as the presence of any children does not end entitlement to the existing award, there is no reason to suspend it. As long as the children are ‘normally living’ with the claimant, the appropriate child elements should be awarded from the assessment period in which they join them, and there is no formal requirement to prove child benefit entitlement or provide any other specific form of evidence first (for more, see ‘UC child elements and child benefit’, Bulletin 268).

Advances (after a new claim or a change of an existing award) are provided for under regulations 5 and 6 of the Social Security (Payments on Account of Benefit) Regulations 2013 (the ‘PAB Regs’). An advance can be awarded pending the first regular or increased UC payment, provided the claimant meets, or is likely to meet, the basic UC entitlement conditions, and ‘financial need’ can be shown. Regulation 7 of the PAB Regs defines financial need as ‘serious risk or damage to the health or safety of … [the claimant] … or any member of their family’.

If refused, there is no right of appeal but a review can be requested, an urgent complaint made, judicial review threatened2For a template for a pre-action letter, see JR15 at cpag.org.uk/welfare-rights/judicial-review/judicial-review-pre-action-letters/advances-uc. and/or a new application made. In the latter case, the longer the family are without income, the more serious their financial need.

For partners joining a refugee, there are two UC entitlement conditions that are most likely to cause problems: the national insurance number (NINo) requirement and the habitual residence test. See ‘NINos: law, policy and legal challenge’, Bulletin 282 and CPAG’s Judicial Review project page at cpag.org.uk/jr for more information on NINo problems and how to address them.

Unlike those with refugee status, partners joining them are not exempt from the habitual residence test (regulation 9 of the UC Regs). A partner granted leave under the family reunion rules has a right to reside and so meets that part of the habitual residence test but also needs to be ‘habitually resident in fact’. Caselaw has established that the two main factors in establishing habitual residence in fact are ‘settled intent’ and an ‘appreciable period’.

How long an appreciable period should be is not specified in law and will depend on the facts of the case. An appreciable period may be as little as a day, while in other cases it may be months. Caselaw has established that the stronger the claimant’s settled intent, the shorter the appreciable period can be.3See, for example, para 16 R(IS) 7/06 Given that a partner joining a refugee already settled in the UK arguably has a very strong settled intent, any appreciable period should be short.

If the partner fails the habitual residence test, then the joint UC claim is treated as a single claim under regulation 3(3) of the UC Regs and regulation 9(1) of the UC C&P Regs. That means the refugee her/himself should be entitled to UC at the single person’s rate and for any elements for children too. Given this, there is no need to suspend an award completely, or refuse to pay an advance, pending a decision on the partner’s habitual residence test, as there will at least be entitlement for the refugee as a single person.

Once the partner successfully challenges the habitual residence test decision or gets a new one made in a later assessment period (eg, once s/he has an appreciable period of residence), the existing award can be revised or superseded to include amounts for her/him too.4In such circumstances, a claim as a couple has already been made, albeit treated and awarded as a single claim, so there should be no need for a further claim.Again, there is no need to suspend the existing amount awarded, given there is no doubt about that entitlement; plus an advance can be awarded pending the first increased payment.

There are no direct legal reasons why UC awards should be completely suspended and advances refused in family reunion cases. Delays and destitution only prolong the distress such families experience and put the burden on other agencies such as social work, local discretion funds and foodbanks. The experience of the Syrian resettlement schemes proves that streamlined processes can be put into place.

Note that Afghans are now being admitted to the UK under several different schemes. The leave granted is not as a refugee under the UN convention and as such these family reunion rules do not apply. There are instead separate rules for family members joining Afghans admitted under these schemes.5See Home Office guidance Afghan Locally Employed Staff – relocation schemes, available at gov.uk The Benefits for Resettled Afghans factsheet on AskCPAG.org.uk provides basic advice.