TCTM02112 - Entitlement: Immigration rules
Treatment of people granted refugee status
The UK has international law obligations in relation to refugees. These obligations arise because the UK is a contracting party to the Convention relating to the Status of Refugees 1951.
Upper Tribunal Decision CTC/0414/2009
A person seeking asylum in the UK is a refugee in the UK from the moment he is 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 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 the 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 and claims asylum immediately on 10 April 2003. The Secretary of State refuses that asylum claim on 10 October 2003 and Mrs Y’s appeal against that decision is dismissed on 13 January 2004.
Mrs Y submits a new claim for asylum on 26 January 2004 and the Secretary of State refuses that claim on 1 March 2005.
Mrs Y submits a further new claim for asylum on 30 April 2006, this time supported by new evidence. The Secretary of State accepts this claim on 20 January 2007 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 2003, notwithstanding that status was not recognised until her third application for asylum. The Tax Credits (Immigration) Regulations 2003, Regs. 3(4) to (9) and 4
An asylum seeker would normally be a person subject to immigration control and, as such, excluded from claiming either CTC or WTC. However, if an asylum seeker’ refugee status, us recognised by the Secretary of State, they can claim tax credits for the period beginning with the date they submitted their first claim for asylum. This only applies:
- to people whose refugee status is recognised by the Secretary of State (not to people, for example, whose application for asylum is turned down but who are instead granted humanitarian protection or discretionary leave, which replaced exceptional leave to remain in the UK in April 2003); and(This text has been withheld because of exemptions in the Freedom of Information Act 2000)
- who claim tax credits within three months of being notified by the Secretary of State that refugee status has been recognised.
Example 3
Mr X, (see example 1, above) claimed asylum on 23 May 2005 and was notified by the Secretary of State on 26 November 2006 that his refugee status has been recognised.
Mr X then claims tax credits on 12 December 2006. Because he has claimed tax credits within three months of his refugee status being recognised by the Secretary of State his claim for tax credits dates from his original claim for asylum. So the date of his tax credits claim is 23 May 2005. Mr X is also treated as having submitted a tax credits claim on 6 April 2006. Note that there can be no backdating under regulation 7 of the Tax Credits (Claims and Notifications) Regulations 2002 of the claim treated as made on 23 May 2005.
The Tax Credits (Immigration) Regulations 2003, Regs. 6 and 7
Example 4
Mrs Y (see example 1) made three claims for asylum but the Secretary of State only recognised her refugee status on 20 January 2007, in response to her third asylum claim. Her first asylum claim was made on 10 April 2003.
Mrs Y claims tax credits on 16 February 2007. Because this claim is made within three months of the Secretary of State giving notice he has recognised her refugee status it is treated as having been made on the date of the original claim for asylum. Thus the claim is treated as made on 10 April 2003. Note that there can be no backdating of this claim under regulation 7 of the Tax Credits (Claims and Notifications) Regulations 2002.
Mrs Y is also treated as having claimed tax credits on 6 April 2004, 6 April 2005 and 6 April 2006.
If a person recognised as a refugee status makes such a claim within the three month time limit, it is treated as a claim for the whole of the period from the date of the original claim for asylum up to the date the actual claim for tax credits is made, including for any of the intervening tax years.
Note: The date of the original claim for asylum up to the date that the actual claim for tax credits was made should not be treated as one single period. Separate decisions are required in respect of each tax credit year.
Entitlement is determined - on the basis the person in question had been a refugee from the date the original claim to asylum was made. This means that, in considering his entitlement, he should be treated as a person who is not subject to immigration control from that date onwards. It also means that the rules for couples (TCTM02113) will apply, where appropriate, throughout the whole of that period (so that, in practice, neither partner would be treated as being subject to immigration control during that period).
The amount of any tax credits due is reduced by the amount of any support already provided under the Immigration and Asylum Act 1999, except to the extent that any backdated income support paid has already been reduced to take that support into account TCTM04914.
