CPAG continues to receive reports of problems facing claimants granted immigration leave further to an asylum claim (ie, refugee leave, humanitarian protection or leave outside the immigration rules without a no recourse to public funds condition – ie, ‘refugee status’) when they claim universal credit (UC). While there has been some recent change, these reports largely reflect long-standing misunderstandings by DWP staff. Jessica Strode sets out some questions and answers.
Question
My client is a refugee. They have been told to apply for a national insurance number (NINo) before claiming UC. I thought the DWP would apply for a NINo for them – what’s going on?
Answer
Good question. Previous publicly available DWP guidance
Claiming Universal Credit and Other Benefits If You Are a Refugee stated: ‘DWP will apply for a NINo on your behalf as part of your claim for benefits. You do not need to apply for a NINo yourself.’ This guidance changed on 1 December 2023
1 and now states: ‘You do not need a NINo for your benefits claim to be made but if you do not have a NINo you need to tell DWP at the start of your claim. DWP will tell you how to apply for a NINo as part of your claim for benefits.’
The DWP advised CPAG on 23 November 2023 that when a claimant makes an application for UC and does not have a NINo, the:
‘NINo team have ... developed a digital NINo application. On receipt of the eDCI1, the NINo team send a text message to the customer containing a link to an online NINo application. Using this link, the customer can complete their details and upload copies of their identity documents; the process takes around 10–15 minutes… this form is not … an application for NINo itself; it simply alerts the NINo team to initiate the NINo application process for a customer.’
CPAG has received one report of a claimant receiving this text message and successfully making a NINo application.
Previously, it was CPAG’s understanding that in this situation the job centre would complete and send the (non-digital) DCI1 form to the NINo team, the NINo team would contact the claimant by telephone to verify their details, then a NINo would be allocated. There seems, therefore, to have been a change from this and the previous guidance saying that the DWP will apply for the NINo.
In most cases, when refugee status is granted, the Home Office applies for a NINo on behalf of the individual. The NINo is returned to the Home Office and is printed on the reverse of the individual’s biometric residence permit (BRP). The DWP is unable to comment on cases where this does not happen. However, the DWP provided CPAG with a link to the publicly available guidance detailed above, and internal guidance titled Benefit Inspired Applications – Administration Team actions (‘internal guidance’). The internal guidance includes where no NINo is traced following receipt of the eDCI1 form, ‘(i)f a mobile number has been provided, an SMS will be sent inviting the applicant to apply for a NINo online, using Apply for a NINo’.
Therefore, when a BRP is received without a NINo and an individual needs to claim UC, they should not delay in doing so. Advise your client to claim UC, tell the DWP that they do not have a NINo and explain if they will be unable to complete an online NINo application due to additional needs. The job centre should then complete the eDCI1 form and send it to the NINo team. Then, the NINo team should, unless the claimant has additional needs, send a text message to the claimant containing a link to an on-line NINo application. The claimant should follow this link and upload the relevant documents to make their NINo application. Under the internal guidance, the text message will say:
‘You recently claimed a benefit. We can only pay your benefit if you have a national insurance number.
To apply for a national insurance number please click the link below: xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx
Complete your application within 48 hours if possible. Do not share this link with anyone.
If you cannot apply online, please call 0800 141 2079 or use the textphone number 0800 141 2438.’
Where a claimant has additional needs and is unable to complete an online application, the internal guidance states: ‘for UC applications this can be highlighted by the UC Phone Claim dropdown on the eDCI1…You [the NINo team] must call the applicant and complete the application over the phone’.
CPAG’s judicial review project is interested to know whether this new process works for claimants: please contact .
Question
My client, who has refugee status, has been told by the DWP they cannot claim UC until they receive their biometric residence permit (BRP). Is this correct?
Answer
No. Current DWP guidance
Refugees and Asylum Seekers2Refugees and Asylum Seekers, v13.0, states that where the claimant has not received their BRP card, they can instead be asked to provide their application registration card and Home Office decision grant letter in order to prove their identity. This guidance states: ‘(t)hese documents can be used together in place of a BRP card to verify identity if the information is the same on both and confirmed by the Home Office. Both documents must be provided and not one without the other to be accepted as proof of identity.’ If your client has these documents and they are not accepted, draw the DWP’s attention to its guidance.
Parliamentary Under-Secretary Mims Davies MP stated on 13 November 2023 that the DWP should ‘consider all available evidence when assessing a benefit claim, including checking directly with the Home Office to confirm immigration status where they are unsure’.
3Mims Davies MP Parliamentary Under-Secretary (DWP), Written question UIN 746, 8 November 2023 This approach is consistent with the pragmatic ‘co-operative process of investigation’ described by Baroness Hale in
Kerr v Department for Social Development [2004] UKHL 23, including that ’where the information is available to the department rather than the claimant, then the department must take the necessary steps to enable it to be traced’. It is therefore also reasonable for the DWP to make enquiries of the Home Office to confirm immigration status when documents are not available to the claimant.
Question
My client is a refugee. A decision on their UC claim has been delayed while a habitual residence test decision is made. What can I do?
Answer
As a refugee, your client is exempt from the habitual residence test under regulation 9(4) of the Universal Credit Regulations 2013. Additional exemptions have been included for persons arriving in Great Britain as a result of conflict in Afghanistan (regulation 9(4)(za)), Ukraine (regulation 9(4)(zb)), Sudan (regulation 9(4)(zd)) and, most recently, Israel, the West Bank, the Gaza Strip, East Jerusalem, the Golan Heights and Lebanon (regulation 9(4)(ze)).
4Amendments introduced by the Social Security (Habitual Residence and Past Presence) (Amendment) Regulations 2021 (Afghanistan), 2022 (Ukraine), 2023 (Sudan) and the Social Security (Habitual Residence and Past Presence, and Capital Disregards) (Amendment) Regulations 2023The DWP needs to confirm that the exemption applies – for example, by checking your client’s BRP or Home Office decision grant letter. However, once it has done so, there is no justification for delay. Consider sending a judicial review pre-action protocol letter if your client has no income or is at risk of homelessness.
5Question
My client’s asylum support has ended and they have no income until their first UC payment. Can they get a UC advance?
Answer
Yes. DWP guidance Refugees and Asylum Seekers is very clear that: ‘A refugee must be offered an advance payment when making a new claim.’
Note that an advance of UC can be made before a NINo is allocated, following the decision of the Court of Appeal in R (Bui) v SSWP; R (Onakoya) v SSWP [2023] EWCA Civ 566. So when a newly recognised refugee without a NINo makes a claim for UC, they too should be offered an advance.
If your client has refugee status, has claimed UC, does not have enough money to live on until the first payment of UC is due, and an advance is not offered and then refused, draw the DWP’s attention to its guidance. If this is unsuccessful, consider sending a judicial review pre-action letter.
6Question
My client has been granted refugee status but does not yet have a bank account. Can they still get UC?
Answer
Yes. Although the UC online claim form does not initially allow claimants to progress their claim unless they enter bank account information, after three failed attempts to enter bank account information, the claim can progress. Alternatively, your client can bypass the restriction by making a telephone claim.
DWP guidance Refugees and Asylum Seekers confirms: ‘(s)ome refugees may not have opened a bank or building society account. Alternative payment methods must be considered so as not to prevent the universal credit payment being delayed.’ Your client should specify what alternative payment method they would like. This may be vouchers, or payments into a third party’s account.
CPAG has prepared a series of template UC journal entries that advisers can use to address any of the issues above. See ‘New universal credit claim by a refugee’ at , and let CPAG know how it goes if you use them (email ).