Child and Working Tax Credits and Child Benefit: residence rules Guidance for intermediaries

Contents

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Immigration

Annex A

Annex B

  • Enlargement of the European Union, January 2007 - Special transitional rules

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Residence

Definitions

United Kingdom (UK) - England, Scotland, Wales and Northern Ireland (does not include the Channel Islands and the Isle of Man).

Great Britain - England, Scotland and Wales.

European Economic Area (EEA)

Austria
Belgium
Bulgaria**
Cyprus
Czech Republic*
Denmark
Estonia*
Finland
France
Germany
Greece
Hungary*
Iceland
Italy
Latvia*
Liechtenstein
Lithuania*
Luxembourg
Malta
Netherlands
Norway
Poland*
Portugal
Republic of Ireland
Romania**
Slovakia*
Slovenia*
Spain
Sweden
United Kingdom

*Acceded to the European Union on 1 May 2004 (together with Cyprus and Malta) and also called here the “A8” countries.

** Acceded to the European Union on 1 January 2007 and also called here the “A2” countries.

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Introduction

To claim the Child Tax Credit (CTC) and Working Tax Credit (WTC), the starting point is that a person must be aged 16 or over and live in the UK (section 3(3) of the Tax Credits Act 2002). Short absences abroad for holidays or on business will not affect eligibility. Some people may be eligible even if they do not live in the UK.

To claim Child Benefit, the general rule is that the claimant and the child (see pages 10 and 11 below) must be in Great Britain (section 146 (1) and (2) of the Social Security Contributions and Benefits Act 1992, as inserted by section 56 (1) of the Tax Credits Act 2002) or in Northern Ireland (section 142 (1) and (2) of the Social Security Contributions and Benefits (Northern Ireland) Act 1992, as inserted by section 56 (2) of the Tax Credits Act 2002). As with tax credits, short absences abroad will not affect eligibility and some people may be eligible even if they do not live in the UK.

Important exception: Some people who are living in the UK do not qualify for tax credits and Child Benefit because they are subject to immigration control. A person is subject to immigration control if they require leave to enter or remain in the UK and do not have it or their leave to enter or remain in the UK is subject to the condition that they must not have recourse to public funds.

In most cases, such persons will not be able to claim tax credits or Child Benefit as they count as public funds. However, there are exceptions to this. If a person receives tax credits or Child Benefit under one of these exceptions, it will not count as recourse to public funds (see pages 13 to 15 below).

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Present, ordinarily resident and right to reside

To be treated as being in the UK for the purposes of CTC and Child Benefit, a person must be present, ordinarily resident and have a right to reside here throughout the period of the award. For WTC, a claimant need only be present and ordinarily resident here.

Present in the UK

The Tax Credits Act 2002 and the Social Security Contributions and Benefits Acts require a person to be “in the United Kingdom” or “in Great Britain/Northern Ireland” respectively to claim tax credits and Child Benefit. On its own, this would mean the person had to be physically present here on each day throughout the period of an award. But there are rules to allow entitlement to continue during short temporary absences. (Please see “Periods of temporary absence” below).

Meaning of “ordinarily resident” for tax credits and Child Benefit

For tax credits, regulation 3 (1) of the Tax Credits (Residence) Regulations 2003 provides that, in general, a person shall be treated as not being in the UK if he is not ordinarily resident here. For Child Benefit, the equivalent rule is in regulations 23 (1) (for Great Britain) and 27 (1) (for Northern Ireland) of the Child Benefit (General) Regulations 2006. The term “ordinarily resident” is not defined in the legislation. But its established meaning is that a person is ordinarily resident if:

  • they normally reside in the UK (apart from temporary or occasional absences); and
  • their residence here has been adopted voluntarily and for settled purposes as part of the regular order of their life for the time being.

Deciding whether a person is ordinarily resident

Whether a person is ordinarily resident for tax credit and Child Benefit purposes depends on the facts as they stand at the time the decision is made. For example, if we decide that someone is ordinarily resident because, at the time we make the decision, he or she intended to stay in the UK for several years, we would not change that decision simply because, in the event, they did not remain in the UK. Thus, if an individual had been classed as ordinarily resident on arrival on the basis that they planned to stay for three years, but in fact they only stayed for one year, they will be classed as ordinarily resident for that year only.

Decisions about entitlement are based on the facts as they exist at the time we decide. But we would revisit a decision where it turns out that the facts at the time we decided were different from the facts as we understood them to be.

Ordinary residence: what factors we consider

Decisions about whether a person is ordinarily resident in the UK need to be based on all the circumstances of the particular case. A person can be ordinarily resident in more than one country. The fact that a person might be said to have a home in another country does not mean that they cannot also be ordinarily resident in the UK.

If a person lives in the UK year after year, we would treat them as ordinarily resident here.

Ordinary residence: coming to live in the UK

When we consider whether a person coming to the UK is ordinarily resident here, we are trying to decide whether they have come to live here as part of the regular order of their life for the time being. Often the answer will be obvious. In other cases, we need to consider all the relevant factors to build up an overall picture of the person’s position and make a decision on the circumstances of the particular case.

Examples of the factors we would take into account are given below. These may help to indicate whether a person is ordinarily resident or not. But normally, no one factor on its own will determine that a person is, or is not, ordinarily resident.

Examples of relevant factors:

  • What is the reason the person has come to the UK? If the person is here for recreational or temporary purposes (such as a holiday), this is likely to be a sign that they are not ordinarily resident;
  • Does the person intend to leave the UK (other than for temporary absences of limited duration) in the next two or three years? If so, this may indicate that the person is not here for a settled purpose and is not ordinarily resident;
  • Does the visit to the UK form part of a pattern of regular and significant visits over a number of years, or is such a pattern expected to emerge? If so, this may indicate that the person is ordinarily resident. The more frequent, and the longer, the visits, the more likely the person is to be ordinarily resident;
  • Has the person’s family (spouse, civil partner or other partner and any children) also come to live in the UK? If so, this may indicate that the person (and his or her family) has a settled intention to remain in the UK, and is, therefore, ordinarily resident;
  • Does the person have a settled home in the UK - for example, have they bought or leased accommodation? If so, this may indicate that the person is ordinarily resident. If not, this does not necessarily mean that the person is not ordinarily resident. We would then need to consider whether there are other reasons for this, such as lack of means;
  • How long has the person lived in the UK? The longer they have lived in the UK, the stronger the indication that they are ordinarily resident. If a person has already lived here for three years or more, we would normally accept that they are ordinarily resident. However, just because a person has lived here for less than three years does not mean that they cannot be classed as ordinarily resident.

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Ordinary residence: leaving the UK

When we consider whether a person leaving the UK has ceased to be ordinarily resident, we are trying to decide whether they have, for the time being, ceased to live here as part of the regular order of their life. We would consider all the relevant factors to build up an overall picture of the person’s position and make a decision based on the circumstances of the individual case.

Examples of the factors we would consider are given below. These may help to indicate whether a person is ordinarily resident or not. But normally, no one factor on its own will determine that a person is, or is not, ordinarily resident.

Examples of relevant factors:

  • Will the person be returning to the UK? If so, this may indicate that ordinary residence continues during the period(s) abroad (the sooner, more frequent or longer the return visits, the stronger that indication). If the person does not intend to return, this indicates that they have ceased to be ordinarily resident;
  • What will the purpose of any return visits be? Visits to see family who have remained at the person’s home in the UK or holidays spent at such a retained home in the UK may indicate continued ordinary residence. Visits connected to the absence abroad (for example, being sent to the UK for training by an overseas employer) are less likely to indicate ordinary residence;
  • Will the person’s family (spouse, civil partner or other partner and any children) be going abroad as well? If so, this may indicate that the person (and his or her family) is no longer ordinarily resident, particularly if they do not maintain a home in the UK. If the person’s family remains in the UK, however, this may indicate that the person continues to be ordinarily resident here;
  • Will the person retain a home in the UK during the period abroad? If so, this may indicate continuing ordinary residence during the period of absence. If not, the person is less likely to remain ordinarily resident;
  • If the person retains a home in the UK, will it be available for their use when they return? If so, this is an indication that ordinary residence may continue. If not - for example, because it is let on a long lease - then it is less likely that the person will remain ordinarily resident;
  • Will the person be returning to the UK at the end of the period abroad? If so, this may indicate that ordinary residence continues. If not, this may indicate that the person ceases to be ordinarily resident, particularly if they do not retain a home in the UK during their absence;
  • How long has the person lived in the UK? The longer the period, the stronger the indication that the person is ordinarily resident.

Temporary absence from the UK

The requirement to be in the UK implies that people should physically be present here on a day-to-day basis. But a person who is not physically present in the UK may still be treated as present for up to the first twelve weeks of a temporary absence. For tax credits, this is covered in regulation 4 of the Tax Credits (Residence) Regulations 2003. For Child Benefit, this is covered in regulations 24 (for Great Britain) and 28 (for Northern Ireland) of the Child Benefit (General) Regulations 2006.

These regulations do not simply provide for entitlement to continue during certain periods of absence from the UK. Instead, they provide that people are to be treated as still being in the UK. That means there is nothing to prevent them making a new claim, or renewing an existing claim, during a period of temporary absence.

There are three key points to note:

  • The period of the absence must be unlikely to last longer than 52 weeks. If the absence is expected to last longer than that, the person stops being in the UK for tax credit or Child Benefit purposes from the time they leave. The question of whether the absence is likely to exceed 52 weeks only needs to be addressed once - at the beginning of the absence (regulation 4(2) of the Tax Credits (Residence) Regulations 2003 and regulations 24 (2) for Great Britain and 28 (2) for Northern Ireland of the Child Benefit (General) Regulations 2006);
  • The person must remain ordinarily resident throughout, unless specifically exempted from this requirement (please see “Transitional protection” and “Special cases” below). If a claimant ceases to be ordinarily resident, they should not longer be treated as being in the UK;
  • To calculate how long the person has been absent, we start from the day after the last day they were physically present in the UK, even if they were only physically present here for a short period (including a day or part of a day).

Periods of temporary absence

Where, on leaving the UK at the start of the absence, the person does not expect to remain absent from the UK for more than 52 weeks the general rule is that people continue to be treated as being in the UK during the first eight weeks of any temporary absence. For tax credits, this is covered by regulation 4(1)(a) of the Tax Credits (Residence) Regulations 2003 and for Child Benefit, this is covered by Regulations 24 (1) (a) for Great Britain and 28 (1) (a) for Northern Ireland of the Child Benefit (General) Regulations 2006.

But, under regulation 4(1)(b) of the Tax Credits (Residence) Regulations and regulations 24 (1) (b) and 28 (1) (b) of the Child Benefit (General) Regulations, people can continue to be treated as being in the UK during the first twelve weeks of any temporary absence. This applies where the absence, or its extension beyond eight weeks, is in connection with:

  • the treatment of an illness or disability of the claimant, the death or treatment of an illness or disability of the claimant’s partner or a child or qualifying young person for whom they are responsible; or
  • the death or treatment of an illness or disability of the claimant’s or partner’s relatives. We define “relative” as brother, sister, ancestor (parents, grandparents, etc.) or lineal descendant (children, grandchildren, etc.).

For this extension of twelve weeks to apply, however, the absence, or its extension, must be in connection with the death or with the treatment of an illness or disability. It is not enough for the two things simply to coincide. For example:

  • Where a person is on holiday and spends a few days of that holiday with a relative who happens to be receiving treatment, they are not entitled to the extension unless the reason they stayed away more than eight weeks was because they were visiting their relative and the reason they visited the relative was because he or she was receiving treatment;
  • If someone always goes abroad to stay with their daughter for twelve weeks every year, they would not be entitled to the extension for a year in which the daughter just happened to be receiving treatment; or
  • If a person stays abroad while they are receiving treatment for some minor ailment, they would not be entitled to the extension if the illness or disability did not prevent them from travelling home and the treatment they were receiving would equally be available to them in the UK.

Where the extended absence coincides with the death of someone’s child, partner or relative, however, we would normally accept that the two are connected.

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Special cases

Couples where only one partner is in the UK

For tax credits, where only one partner in a couple is in the UK, that person should make a single claim as an individual.

If one partner in a couple ceases to be in the UK, the tax credit entitlement of the couple will end. The other partner who continues to be in the UK will need to make a new tax credit claim as an individual. The change bringing the old tax credit award to an end is one that must be reported to HM Revenue & Customs within three months because the couple is no longer able to make a claim as a couple. A penalty of up to £300 may be charged if the change is not notified in time.

Similarly, if a member of a couple who has previously been abroad returns to the UK, the couple will need to make a new tax credit claim as a couple at that point. If the partner already in the UK was claiming tax credits, they will no longer be entitled to claim as an individual and need to notify the change within three months. A penalty of up to £300 may be charged if the change is not notified in time.

People deported to the UK

To be ordinarily resident in the UK, a person must be here voluntarily. This may not apply to people who are here as a result of deportation, expulsion or some other legal form of compulsory removal from another country. So, to avoid any doubts about their eligibility for tax credits or Child Benefit, people in this situation are automatically treated as ordinarily resident for the purposes of tax credits and Child Benefit. For tax credits, this is covered in regulation 3(3) of the Tax Credits (Residence) Regulations 2003 and for Child Benefit, this is covered in regulation 23 (3) for Great Britain and 27 (2) for Northern Ireland of the Child Benefit (General) Regulations 2006.

Crown servants posted overseas

Crown servants posted overseas are treated as being in the UK provided:

  • they are, or were immediately prior to the posting, ordinarily resident in the UK; or
  • they were present in the UK immediately prior to the posting in connection with that posting. This is to ensure that people such as members of the armed forces, who may be posted abroad too quickly to enable them to establish ordinary residence in the UK before they leave, are not disadvantaged. But the person’s presence in the UK must have been in connection with the posting. It is not enough for the person just to have chosen to visit the UK before the posting began.

For tax credits, this is covered in regulations 3(2) and 5 of the Tax Credits (Residence) Regulations 2003 and for Child Benefit, this is covered in regulations 23 (2) and 30 of the Child Benefit (General) Regulations 2006.

Partners of Crown servants posted overseas

There is no requirement for the partner of a Crown servant to be ordinarily resident in the UK. This recognises that some posted Crown servants may form relationships while they are abroad with partners who do not have close or enduring ties to the UK.

However, to qualify for tax credits, the partner of a Crown servant must either be present in the UK or accompanying the Crown servant on their posting overseas. This is covered in regulation 6(1)(a) of the Tax Credits (Residence) Regulations 2003, together with section 3(3) of the Tax Credits Act 2002.

Whether the partner of the Crown servant is present in the UK or accompanying their partner overseas, regulation 6(1)(b) and (2) and (4) ensures that the usual flexibility for temporary absences also applies to them. The absence may be from the UK itself or from the country in which the Crown servant is posted, depending on whether the partner has remained in the UK or is accompanying the Crown servant on their posting.

Similar rules apply for Child Benefit purposes and are found in regulation 31 of the Child Benefit (General) Regulations 2006.

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EEA nationals who are working in the UK

WTC is available to people from EEA countries who are exercising their rights to free movement as workers in the UK under EC Regulations 1612/68 or 1251/70 or if they have a right to reside in the UK under EC Directive 2004/38. We treat such people as being ordinarily resident for the purposes of WTC. This is covered by regulation 3(4) of the Tax Credits (Residence) Regulations 2003.

Transitional protection

There is a special provision, in relation to CTC only, for people who were entitled to support for their children through Income Support or income-based Jobseeker’s Allowance for the period immediately before they were first awarded CTC. They do not have to meet the requirement to be ordinarily resident in the UK for a period of three years after they are first awarded CTC if:

  • they had not already been awarded CTC before 6 April 2004; and
  • they were exempt from the residence test for Income Support or income-based Jobseeker’s Allowance because they were either a refugee or a person with exceptional leave to remain in the UK.

This is covered in regulation 7 of the Tax Credits (Residence) Regulations 2003.

For Child Benefit, regulation 33 of the Child Benefit (General) Regulations 2006 provides transitional protection for claimants whose period of temporary absence from the UK started before 7 April 2003 and continued after the coming into force of the 2006 Regulations (10 April 2006).

Children

For both the CTC and Child Benefit, there is no requirement for the child in question to be ordinarily resident in the UK: the “ordinary residence” test is applicable to the claimant.

However, for the claimant to be eligible for the CTC, the child must be “normally living” with him or her. This test is set out in Regulation 3 (1), Rule 1, of the Child Tax Credit Regulations 2002.

For Child Benefit, Regulations 21 and 25 of the Child Benefit (General) Regulations 2006 provide that for the claimant to be eligible for Child Benefit, the child must be physically present in, respectively, Great Britain or Northern Ireland. However, if the child is not physically present in Great Britain or Northern Ireland, he or she may still be treated as present for at least the first 12 weeks of a temporary absence. Further, the child may continue to be treated as present in Great Britain or Northern Ireland for more than 12 weeks of a temporary absence where one of the following applies:

  • if the child is receiving full-time education in an EEA country or Switzerland;
  • if the child is on an educational exchange or visit that is approved in writing by the child’s school; or
  • if the child is to get medical treatment for an illness that began before the child left Great Britain or Northern Ireland.

There is no time limit on these temporary absences. The only requirement is that the absence is temporary and the intention is to return to Great Britain or Northern Ireland at the end of it.

For the child of a Crown servant posted overseas who accompanies his or her parents on their posting, regulation 32 of the Child Benefit (General) Regulations 2006 provides that he or she shall be treated as being in Great Britain for Child Benefit purposes.

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The Right to Reside

For new claims made on or after 1 May 2004, entitlement to the CTC and Child Benefit depends on the claimant, regardless of his or her nationality, having a “right to reside” in the UK (whether under UK or EC law). This is in addition to the claimant being present and ordinarily resident in the UK. Regulation 3 (5) of the Tax Credits (Residence) Regulations 2003 and regulations 23 (4) and 27 (3) of the Child Benefit (General) Regulations 2006 provide respectively that a person shall not be treated as being in the UK for the purposes of claiming CTC and Child Benefit if they do not have a right to reside in the UK.

Entitlement to WTC is outside the scope of the derogation from the Treaty of Accession with the A8 and A2 countries (see Annexes A and B), so all EEA workers (including A8 and A2 workers) have a right to claim that tax credit on the same basis.

Who has the right to reside in the UK?

The following groups have a right to reside in the UK when claiming CTC and Child Benefit and, depending on the full facts of their case, should be entitled to such support:

  • all UK nationals and those who have a right to reside in the Common Travel Area (which covers the UK, the Republic of Ireland, the Channel Islands and the Isle of Man), by virtue of the Immigration Act 1971
  • all EEA workers legally working in the UK - there are special rules for A8 and A2 nationals (see Annexes A and B)
  • all EEA nationals who are self-employed in the UK
  • all work-seekers from the pre-1 May 2004 EEA Member States, Cyprus and Malta who have a reasonable chance of finding work as well as A2 nationals who have been admitted under the Highly Skilled Migrants Programme, who hold a registration certificate stating that they have unconditional access to the UK labour market and are seeking work; and
  • third country nationals with indefinite leave to remain in the UK.

The following groups only have a right to reside in the UK when claiming CTC and Child Benefit if they have sufficient resources not to become a burden on the social assistance system of the UK:

  • all A8 and (apart from those admitted under the Highly Skilled Migrants Programme) A2 nationals who are looking for work, including an A8 or an A2 worker who loses his or her job before having worked in the UK lawfully and uninterruptedly for 12 months and is without another job for a period of more than 30 days; and
  • all EEA (including A8 and A2) nationals who are economically inactive.

In these cases, all the claimant’s personal circumstances are taken into account when deciding whether he or she is self-sufficient. Such factors could include whether or not that person had claimed social assistance from the Department for Work & Pensions in Great Britain or the Department for Social Development in Northern Ireland (i.e. Income Support, income-based Jobseeker’s Allowance and State Pension Credit).

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Immigration

Introduction

Tax Credits and Child Benefit follow the long-standing Government policy that those who have not established their right to remain permanently in the UK should not have welfare provision on the same basis as those whose citizenship or status here gives them an entitlement to benefits and assistance when in need. All those admitted to the UK for a temporary purpose are required under the Immigration Rules to be able to maintain and accommodate themselves without recourse to public funds. Consequently all those on limited leave generally have a condition endorsed on their passports prohibiting recourse to public funds.

For this reason, regulation 3 (1) of the Tax Credits (Immigration) Regulations 2003 and section 115 (1) of the Immigration and Asylum Act 1999 provide that persons subject to immigration control are not eligible for, respectively, tax credits and Child Benefit. There are, however, certain exceptions to this general rule set out for tax credits in the Tax Credits (Immigration) Regulations and, for Child Benefit, the Social Security (Immigration and Asylum) Consequential Amendments Regulations 2000.

Subject to immigration control

A person subject to immigration control is defined by section 115(9) of the Immigration and Asylum Act 1999. A person subject to immigration control is defined as:

a) a person who requires leave to enter or remain in the United Kingdom but does not have it. This covers overstayers, illegal entrants, people who are subject to a deportation order, those allowed temporary admission to the UK and anyone whose immigration status has yet to be determined.

b) A person who has leave to enter or remain but subject to a condition that he does not have recourse to public funds. Limited leave to enter or remain subject to there being no recourse to public funds is given under section 33(1) of the Immigration Act 1971.

c) A person who has leave to enter or remain which was given as a result of a maintenance undertaking. “Maintenance undertaking” is defined by section 115(10) as a written undertaking given by another person in pursuance of the immigration rules to be responsible for the claimant’s maintenance and accommodation.

d) A person who has leave to enter or remain only because he is appealing against certain immigration decisions. Under section 61 of the Immigration Act 1999, a person with limited leave has a right of appeal against a decision to vary, or refuse to vary his leave. A similar right is give to aslyum seekers by section 69. While any appeal is pending, the leave to which the appeal relates and any conditions subject to which it is granted continue to have effect.

A person is not subject to immigration control if he or she is:

  • a UK national;
  • a national of another country in the EEA or of Switzerland;
  • someone who has been granted indefinite leave to remain in the UK (including those granted humanitarian protection or discretionary leave, previously exceptional leave);
  • someone who has been granted asylum in the UK.

What are the specified circumstances when a person subject to immigration control can access Tax Credits and Child Benefit?

Tax credits:

  • People who have been given leave to enter or remain in the UK subject to a maintenance undertaking and have been resident in the UK for at least five years, starting on the date of entry or the date on which the maintenance undertaking was given by their sponsor (Case 1, regulation 3 (1) of the Tax Credits (Immigration) Regulations);
  • People subject to a maintenance undertaking who have been resident in the UK for less than five years whose sponsor has died (Case 2, regulation 3 (1));
  • People whose funds from abroad have been disrupted can claim tax credits for a period of up to 42 days during any single period of limited leave (Case 3, regulation 3 (1));
  • For WTC only in most cases, nationals of states covered by the 1953 European Convention of Social and Medical Assistance (ECSMA) or the 1961 Council of Europe Social Charter (Case 4, regulation 3 (1)) - in addition to all EEA Member States, these countries are Croatia and Turkey;
  • For CTC only, workers who are nationals of states with which the EC has an agreement providing for equal treatment for social security (Case 5, regulation 3 (1)) - these countries are Algeria, Morocco, San Marino, Tunisia and Turkey;
  • Members of a couple in which one partner is subject to immigration control while the other is not may still make a joint tax credit claim (regulation 3 (2));
  • People who have been recorded by the Home Secretary as refugees (regulations 3 (5) to (9) and 4) - see below; and
  • There are also transitional rules for people who were receiving family support through Income Support or income-based Jobseeker’s Allowance immediately before the introduction of tax credits (regulation 5).

Child Benefit:

  • A person who has been given leave to enter or remain in the UK subject to a maintenance undertaking (paragraph 4 in Part 2 of the Schedule to the Social Security (Immigration and Asylum) Consequential Amendments Regulations 2000);
  • A national of Algeria, Morocco, San Marino, Tunisia or Turkey who is working lawfully in the UK (paragraph 2 in Part 2 of the Schedule to the 2000 Regulations);
  • A national of, or a person who has come to live in the UK from, a country that has a reciprocal social security agreement with the UK which covers Child Benefit (regulation 2 (3) of the 2000 Regulations) - these countries are Barbados, Canada, Israel, Jersey and Guernsey, Mauritius, New Zealand and former Yugoslavia (i.e. applies to Croatia, Bosnia-Hercegovina, Serbia and Montenegro, and the former Yugoslav Republic of Macedonia);
  • A family member of a person who is a UK, Swiss or an EEA national (paragraph 1 in Part 2 of the Schedule to the 2000 Regulations); and
  • There are also transitional provisions for people who were in receipt of Child Benefit before October 1996 (regulation 12 (10) of the 2000 Regulations).

Refugees and backdating

A person who has submitted a claim for asylum is not in the first instance entitled to claim tax credits (see regulation 3 (4) of the Tax Credits (Immigration) Regulations 2003). However, a person who is recorded by the Home Secretary as a refugee and who claims tax credits within three months of receiving that notification shall be treated as having made that tax credit claim on the date of his or her application for asylum. In such cases, that person may be entitled to a backdated award of tax credits, although to mitigate any double provision the amount of support provided by the Home Office under the National Asylum Support Service (NASS) will be deducted from any such tax credit award (regulation 3 (5) to (9) of the Tax Credits (Immigration) Regulations refers).

For Child Benefit, with effect from 6 April 2004, a person who has been recorded as a refugee by the Home Secretary may claim Child Benefit and provided he or she makes a claim within three months of receiving that notification, , shall be treated as having made that Child Benefit claim on the date of his or her application for asylum (regulation 6 (2) (d) and (3) of the Child Benefit and Guardian’s Allowance (Administration) Regulations 2003)

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Annex A

Enlargement of the European Union - Special transitional rules

On 1 May 2004, ten countries joined the EU. They were:

  • Estonia;
  • Latvia;
  • Lithuania;
  • Poland;
  • The Czech Republic;
  • Slovakia;
  • Hungary;
  • Slovenia;
  • Cyprus; and
  • Malta.

Under a derogation from the Treaty of Accession with the above countries (except Cyprus and Malta), existing member states of the EU were allowed to restrict access to their labour markets for up to five years, with a review after two years. In February 2004, the Government set out the terms on which workers from the eight central European accession states (the “A8”) have access to the UK labour market.

The Worker Registration Scheme

With effect from 1 May 2004, A8 nationals have been able to take up employment in the UK provided they are authorised to do so under the Worker Registration Scheme (WRS) administered by the Home Office. A8 nationals are, with some exceptions, obliged to register where they are working and for whom. They are then issued with a certificate authorising them to work for the employer concerned and confirming their right to work in the UK while they are working for that employer. If they change employers, they have to submit an application to the Home Office for a new certificate. An A8 national who has worked legally for a period of 12 months without interruption (i.e. periods of unemployment must not total more than 30 days in any 12 month period) is entitled to full free movement rights and is no longer required to register his or her employment.

Who is required to register with the Worker Registration Scheme?

The following groups of A8 nationals are required to register under the WRS:

  • all A8 nationals who took up new employment in the UK on or after 1 May 2004;
  • A8 dependants of A8 workers who arrived in the UK on or after 1 May 2004 and who wish to work in this country;
  • part-time workers;
  • students who are working; and
  • short-term and temporary workers who are employed by a labour provider.

Who is not required to register with the Worker Registration Scheme?

The following groups of A8 nationals are not required to register:

  • the self-employed;
  • A8 nationals who were working legally in the UK for 12 months or more in the employment they were in on 1 May 2004;
  • A8 nationals who were working legally in the UK and who stayed in the same job after 1 May 2004;
  • A8 nationals who were issued with leave to enter the UK before 1 May 2004 as a seasonal agricultural worker and took up employment on the Seasonal Agricultural Workers Scheme on or after that date;
  • A8 nationals who are providing services in the UK on behalf of an employer who is not established in the UK;
  • A8 nationals who are also citizens (dual nationals) of the UK, Switzerland or another member state of the EEA (other than the A8 states);
  • the family members of a Swiss or EEA national (other than one of the A8 states, or of the UK) who is working in the UK;
  • the family members of a Swiss or EEA national who is living in the UK as a student or a retired or self-sufficient person.

The Home Office Accession (Immigration and Worker Registration) Regulations 2004 set up the WRS and gave A8 nationals who are workers the “right to reside” in the UK. In principle, A8 workers therefore have the same right to equal treatment as other EEA workers while they are working in the UK as regards entitlement to social security benefits, tax credits, health care and education. After 12 months’ uninterrupted employment, an A8 worker will acquire full rights under the Treaty of Accession and will be free from the requirement to register under the WRS. He or she will be able to apply to the Home Office for an EEA residence permit to confirm this.

Further information about the WRS should be obtained from:

Customer Relations
Work Permits (UK)
Home Office
Level 5
Moorfoot
Sheffield
S1 4PQ

Telephone: 0114 259 6262
E-mail: Home Office
Website: Working in the UK

Annex B

Enlargement of the European Union, January 2007 - Special transitional rules

On 1 January 2007, Bulgaria and Romania (the “A2”) joined the EU. A derogation in the Treaty of Accession from free movement rights for workers allows existing EU Member States to regulate access to their labour markets for a transitional period. On 24 October 2006, the Home Secretary announced the conditions under which A2 nationals would be allowed to work in the UK. The Home Office will review these arrangements annually.

The Worker Authorisation Scheme

From 1 January 2007, A2 nationals who want to take up employment in the UK will generally need to obtain a worker authorisation document. The document must be issued before the A2 national starts work. A worker authorisation document is either:

  • a document issued before 1 January 2007 giving that person leave to enter or remain in the UK subject to a condition restricting his or her employment here to a particular employer or category of employment;
  • a seasonal agricultural work card (this scheme will, from 1 January 2007, be restricted to A2 nationals); or
  • an accession worker card issued in respect of an authorised category of employment, for example employment in the Sector Based scheme or under a work permit or employment as an au pair, a domestic worker, a journalist, a teacher or language assistant, an overseas qualified nurse etc.

An A2 national who has worked legally and uninterruptedly for a period of 12 months (i.e. periods of unemployment must not total more than 30 days in any 12 month period) is entitled to full free movement rights and is no longer subject to worker authorisation (see third and fourth points below).

Who is not subject to the Worker Authorisation Scheme?

The following A2 nationals will not be subject to the Worker Authorisation Scheme:

  • the self-employed;
  • A2 nationals who have leave to enter or remain in the UK under the Immigration Act 1971 without restriction on their employment;
  • A2 nationals who were legally working in the UK on 31 December 2006 and had been legally working uninterruptedly for 12 months at that date;
  • A2 nationals who were working legally and uninterruptedly for a period of 12 months falling partly or wholly after 31 December 2006;
  • A2 nationals who are also citizens (dual nationals) of the UK or another Member State of the EEA (other than the A2 states);
  • A2 nationals who are the spouse or civil partner of a UK national;
  • A2 nationals with a permanent right of residence under the Home Office’s Immigration (EEA) Regulations 2006;
  • A2 nationals who are providing services in the UK on behalf of an employer who is not established in the UK;
  • the family members of an EEA national who is working in the UK or living in the UK as a student, jobseeker or self-sufficient person (other than family members of an A2 national subject to worker authorisation); and
  • A2 nationals in possession of a registration certificate confirming unconditional access to the UK labour market.

A2 nationals exercising a Treaty right

After accession, A2 nationals will be able to exercise the following EC Treaty rights:

  • as a self-employed person;
  • as a student; or
  • as a self-sufficient person.

A2 nationals exercising such Treaty rights may seek a European Union Registration Certificate from the Home Office confirming their status. They will not be required to obtain a registration certificate but will be entitled to apply for one if they wish.

In particular, A2 students studying in the UK will be able to work part-time (up to 20 hours a week), provided they hold a registration certificate confirming that they are an EEA national exercising an EC Treaty right as a student and are enrolled at an approved college on the Register of Education Providers maintained by the Department for Education & Skills.

More information about the Worker Authorisation Scheme or how to apply for a European Union Registration Certificate should be obtained from the Home Office as follows: