Benefit changes for Afghans and Ukrainians
Henri Krishna reviews residence rule and other changes for people leaving Afghanistan and Ukraine.
Introduction
As part of the government’s response to events in both Afghanistan and Ukraine, changes were made to the residence and presence rules for a number of benefits. For Afghans, these mostly took effect from 15 September 2021, and for Ukrainians from 22 March 2022.
The changes were necessary as the new schemes to admit Afghans and Ukrainians are not part of the normal asylum route, whereby someone escaping conflict or persecution is recognised as either a refugee or requiring humanitarian protection or other discretionary leave. Those recognised under the asylum process are usually exempt from most residence and presence rules under pre-existing legislation.
Instead, Afghans and Ukrainians admitted through the new schemes are given time-limited leave to remain with no restrictions on public funds, under specific new provisions of the Immigration Rules or granted leave ‘outside’ those rules.
The ‘Ukrainian’ amendments also contain a number of changes that have a wider application.
Who is covered?
The amendments do not simply cover all Afghans and Ukrainians. Many of both nationalities will already have been resident with existing leave to remain in the UK prior to the crises in their home country. Neither are the amendments limited completely to Afghan or Ukrainian nationals.
Afghans covered are those admitted under:
•the Afghan Relocations and Assistance Policy (ARAP); or
•the scheme for locally employed staff in Afghanistan (‘ex-gratia scheme’); or
•the Afghan Citizens Resettlement Scheme (ACRS).
Also covered, other than for the changes to disability and carer’s benefits, is anyone who left Afghanistan in connection with the collapse of the Afghan government on 15 August 2021.
Ukrainians, and
others, residing in Ukraine immediately before 1 January 2022, who left in connection with the Russian invasion which took place on 24 February 2022, are covered if they have (other than for child benefit):
1While the child benefit amendments might not specify the type of leave required, someone would still be excluded if s/he did not have such leave and was therefore a person subject to immigration control.•a pre-existing right of abode in the UK; or
•leave under or outside the Immigration Rules.
Note that the amendments may cover non-Afghans or non-Ukrainians who left those countries due to the same events, although all still need to meet other requirements such as not being a person subject to immigration control.
Means-tested benefit changes
Those covered above are exempt from the habitual residence test for all the DWP-administered means-tested benefits – ie, universal credit, income-related jobseeker’s allowance, income-based employment and support allowance, income support and pension credit, as well as housing benefit (HB).
2Regs 2 and 3 of both and The amendments made to means-tested benefit regulations in response to the Ukrainian crisis also change the rules for all those granted leave ‘outside the rules’.
3Regs 2(4) and 3(4) SI 2022, No.344 (see note 2) From 22 March 2022, rather than only specific groups granted leave outside the rules being exempt from the habitual residence test, it is anyone granted such leave.
In England and Wales, the council tax reduction (CTR) rules were amended to include only the Afghan-related habitual residence test exemptions from 1 April 2022.
4Reg 4 ; reg 5 In Scotland, the state pension-age CTR regulations have been amended to exempt all those covered above from the habitual residence test, but the new Scottish working-age CTR scheme in force from 1 April 2022 only includes the Afghan exemptions.
5Regs 2 and 3 ; reg 5 ; regs 9 and 10 . SSI 2022, No.108 exempts Ukrainians from the habitual residence test under the 2012 CTR Regs but no similar amendment has yet been made to the 2021 Regs. does however add Ukrainians to those who a council tax discount applies to in Scotland, and also exempts Ukrainians from being counted as non-dependents for CTR purposes.Disability and carer’s benefit changes
All those covered above, other than those who left Afghanistan but not admitted under one of the specified schemes, are exempt from the past presence test and habitual residence requirements for all disability and carer’s benefits across Great Britain. The benefits covered are personal independence payment, disability living allowance, attendance allowance, carer’s allowance, child disability payment and adult disability payment.
6Reg 4 SI 2021, No.1034 (see note 2); regs 4 and 5 SI 2022, No.344 (see note 2); regs 2 and 6 ; reg 7 ; regs 7 and 8 SSI 2022, No.108 (see note 5)The amendments also include a more general exemption from the habitual residence requirement for all those exempt from the past presence test in England and Wales (similar rules already existed in Scotland) (eg, those with refugee status and their family members) from 22 March 2022.
7Regs 4(3) and 5(3) SI 2022, No.344 (see note 2)Child benefit changes
Those covered above are exempt from the three-month ‘living in’ the UK requirement for child benefit.
8Reg 2 of both and No similar changes have been made to the child tax credit regulations.Other benefits
As those covered above are unlikely to have a sufficient work history or national insurance contribution record in the UK, they will be excluded from many other benefits until they do. Other entitlement may depend on passporting from the benefits covered above.
In Scotland, the residence requirements for devolved benefits have been amended to exempt those covered above if not otherwise passported by other entitlement.
9SSI 2021, No.320 (see note 6) and SSI 2022, No.108 (see note 5)Hosts and sponsors
Other than to disregard any payment made to ‘hosts’ under the Homes for Ukraine scheme for tax credits,
10Reg 3 SI 2022, No.346 (see note 8) no specific amendments to the legislation have been made to protect the benefits of hosts. However, government policy is that payments to hosts (eg, ‘thank you’ payments under the Homes for Ukraine scheme) should be treated as ‘local welfare provision’ and so disregarded for other benefits.
11See explanatory memorandum to Also, the policy is that Ukrainians are not ‘normally living with’ a host and so should not affect entitlements such as the severe disability premium, the 25 per cent single occupier council tax discount or a non-dependent deduction.
12DWP’s response to questions raised by CPAG. The latter also means that a host will not benefit by a reduction in any amount of bedroom tax.
13See This will change if any arrangement becomes permanent or rent liability is created.Those sponsoring Ukrainians to come to the UK do not come under the Homes for Ukraine scheme. Government policy as to how the presence of Ukrainians may affect a sponsor’s benefits is less clear. If the sponsor accommodates Ukrainians in her/his home, the sponsor’s benefits may be affected, although it might still be argued that if the arrangement is temporary, the Ukrainians are not normally living with the sponsor as above and so her/his benefits should not be affected.