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
A person arrives in the UK and claims asylum immediately on 23 May 2005. On 26 November 2006 the Secretary of State approves their claim for asylum and recognises they were a refugee on 23 May 2005 when they claimed asylum and has continued to be a refugee from that date.
Example 2
A person 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 their appeal against that decision was dismissed on 13 January 2004.
They submit a new claim for asylum on 26 January 2004 and the Secretary of State refuses that claim on 1 March 2005.
They submit 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 them indefinite leave to remain in the UK.
They are recognised as a refugee from the date they submitted their first claim for asylum on 10 April 2003, notwithstanding that status was not recognised until their 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’s refugee status is 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
- who claimed tax credits prior to 6 April 2011 and that claim was made within three months of being notified by the Secretary of State that refugee status has been recognised; or
- who claim tax credits on or after 6 April 2011 and that claim is made within one month of being notified by the Secretary of State that refugee status has been granted or recognised.
Example 3
A person, (see example 1, above) claimed asylum on 23 May 2005 and was notified by the Secretary of State on 26 November 2006 that their refugee status has been recognised.
They claim tax credits on 12 December 2006. As this is within three months of the Secretary of State’s decision recognising them as a refugee their claim for tax credits is treated as made on 25 May 2005, the date they originally claimed. They are also treated as having submitted a tax credits claim on 6 April for each subsequent year. 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. 3(6)(7)
Example 4
Having made three claims for asylum (see example 2) the Secretary of State recognised someone as a refugee on 20 January 2007, from the date of their first asylum claim which was made on 10 April 2003.
They claim tax credits on 16 February 2007 and as this is within three months of the Secretary of State’s decision recognising their refugee status their tax credits claim is treated as made on 10 April 2003, the date they originally claimed asylum. Note that there can be no backdating of this claim under regulation 7 Tax Credits (Claims and Notifications) Regulations 2002.
They are also treated as having claimed tax credits on 6 April 2004, and any subsequent years.
If a person is recognised as having refugee status and they claim tax credits 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 any of the intervening tax years.
Note: Where refugee status is recognised any period from the original date of claim for asylum up to the date that the actual claim for tax credits was made should not be treated as one single period where it spans more than one year. Separate decisions are required in respect of each tax credit year.
Entitlement to tax credits is determined - on the basis the person in question was a refugee from the date they originally claimed asylum. This means they are treated as a person who is not subject to immigration control from that date onwards. It also means 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.
Example 5
A person claimed asylum on 17 July 2006 and was notified by the Secretary of State on 9 March 2012 that their refugee status has been recognised.
They claim tax credits on 8 April 2012. As this is within one month of the Secretary of State’s decision recognising them as a refugee their claim for tax credits is treated as made on 17 July 2006, the date they originally claimed asylum. They are also treated as having submitted a tax credits claim on 6 April for each subsequent year. 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 17 July 2006.