Social Welfare Update: Someone who is appealing a decision to refuse an application to vary leave is classified as a person subject to immigration control under s.115(9)(d) of the Immigration and Asylum Act 1999 and therefore excluded from benefits

Tuesday 28 May 2019

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EE was a Nigerian national who had discretionary leave to remain in the UK which expired on 13 August 2015. Before it expired, he applied for an extension to his leave on Human Rights grounds. The Home Office rejected the application and EE made an in-time appeal against that decision. EE later applied for Housing Benefit (HB) in April 2016. This was awarded but was stopped a few months later, when the local authority learnt about his refusal of leave and his pending appeal. A First-tier Tribunal dismissed EE’s appeal against the decisions that he was not entitled to HB and that there had been a recoverable overpayment. EE appealed to the Upper Tribunal.

UTJ Poynter said that once EE’s appeal was lodged he continued to have leave to remain in the UK pending a decision on his appeal as leave is automatically extended under s 3C or 3D of the Immigration Act 1971 (the 1971 Act). This meant EE had leave to remain in the UK at the time he claimed HB and was not a person subject to immigration control unless he had leave to remain 'only as a result of paragraph 17 of Schedule 4' as provided by section 115(9)(d) of the Immigration and Asylum Act 1999 (the 1999 Act). 

UTJ Poynter held that while paragraph 17 of Schedule 4 had been repealed by the Nationality, Immigration and Asylum Act 2002, the effect of the legislative change was to repeal and re-enact paragraph 17 of Schedule 4 to the 1999 Act. Although the drafting was slightly different, s 3C (1) and (2)(b) and (c) of the 1971 Act, as substituted by s 118 of the 2002 Act, had substantially the same effect. 

Applying this interpretation to the facts of the case, UTJ Poynter found that, at the time of the claim for HB, the Home Secretary had refused to vary EE’s leave and, as a result, he had no leave to remain in the UK except under s 3C(1) and (2)(b) and (c) of the 1971 Act – as someone appealing a refusal to vary leave. This was the situation covered by the exclusion in s. 115(9)(d) of the 1999 Act. It followed that EE was a person subject to immigration control and was excluded from any entitlement to HB by s 115(9)(d).

The UT added that those whose leave was extended by s 3D of the 1971 Act (where leave to remain in the UK has either been revoked or varied with the result that they have to leave the UK) were not subject to immigration control under s119 of the 1991 Act.  But s.3D had no application in the present case as the Home Secretary’s decision was a refusal to vary EE’s leave.

The full judgment is available here: EE v City of Cardiff (HB) [2018] UKUT 418 (AAC), 11 December 2018, UTJ R Poynter

Desmond Rutledge is a member of the Garden Court Chambers Welfare Benefits team.

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