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The Social Security (Income-related Benefits) (Updating and Amendment No. 2) (EU Exit) Regulations (Northern Ireland) 2019

S.R. 2019/90 · Made 17 April 2019

Original text. legislation.gov.uk does not revise statutory instruments, so later amendments are not shown here. Changes made to it are listed under each provision when known.

Exiting The European Union

Social Security

Made 17th April 2019

Coming into operation 7th May 2019

The Department for Communitiesf1 makes the following Regulations in exercise of the powers conferred by sections 122(1)(a) and (d), 133(2)(a) and (i) and 171(1), (3) and (4) of the Social Security Contributions and Benefits (Northern Ireland) Act 1992f2, Article 36(2) of, and paragraph 11(2) of Schedule 1 to, the Jobseekers (Northern Ireland) Order 1995f3, and now vested in itf4, sections 1(5)(a) and 19(2) of the State Pension Credit Act (Northern Ireland) 2002f5 and section 25(2) of, and paragraph 5 of Schedule 2 to, the Welfare Reform Act (Northern Ireland) 2007f6.

Regulations 5 and 6 are made with the consent of the Department of Financef7.

Annotations to the whole text

Footnotes

f1

See section 1(7) of the Departments Act (Northern Ireland) 2016 (c. 5 (N.I.))

f2

1992 c. 7; section 122(1) was amended by Schedule 6 to the Tax Credits Act 2002 (c. 21) and section 171(1) was amended by paragraph 5 of Schedule 4 to that Act

f3

S.I. 1995/2705 (N.I. 15); Article 36(2) was amended by paragraph 55 of Schedule 3 to the Social Security Contributions (Transfer of Functions, etc.) (Northern Ireland) Order 1999 (S.I. 1997/671)

f4

See Article 8(b) of S.R. 1999 No. 481

f5

2002 c. 14 (N.I.)

f6

2007 c. 2 (N.I.); section 25(2) was amended by Article 57(2)(b) of the Welfare Reform (Northern Ireland) Order 2015 (S.I. 2015/2006 (N.I. 1))

f7

See section 171(6A) of the Social Security Contributions and Benefits (Northern Ireland) Act 1992 as inserted by Article 3(3) of the Social Security (Amendment) (Northern Ireland) Order 1993 (S.I. 1993/1579 (N.I. 8)); see also Article 6(b) of S.R. 1999 No. 481 and section 1(4) of the Departments Act (Northern Ireland) 2016

Contents

  1. 1Citation and commencement
  2. 2Amendment of the Income Support (General) Regulations
  3. 3Amendment of the Jobseeker’s Allowance Regulations
  4. 4Amendment of the State Pension Credit Regulations
  5. 5Amendment of the Housing Benefit Regulations
  6. 6Amendment of the Housing Benefit (Persons who have attained the qualifying age for state pension credit) Regulations
  7. 7Amendment of the Employment and Support Allowance Regulations
  8. Signature
  9. Explanatory note

1Citation and commencement

These Regulations may be cited as the Social Security (Income-related Benefits) (Updating and Amendment No. 2) (EU Exit) Regulations (Northern Ireland) 2019 and shall come into operation on 7th May 2019.

2Amendment of the Income Support (General) Regulations

In regulation 21AA of the Income Support (General) Regulations (Northern Ireland) 1987f1 (special cases: supplemental–persons from abroad)—

(a)

in paragraph (2) after “paragraph (3)” insert “or (3A)”;

(b)

in paragraph (3)—

(i)

in sub-paragraph (a) for “Immigration (European Economic Area) Regulations 2006”f2 substitute “Immigration (European Economic Area) Regulations 2016”f3;

(ii)

for sub-paragraph (bb)f4 substitute—

“(bb)

regulation 16 of those Regulations, but only in a case where the right exists under that regulation because the claimant satisfies the criteria in paragraph (5) of that regulation;”f5;

(c)

after paragraph (3) insert—

“(3A)

A right to reside falls within this paragraph if it is one which exists by virtue of a claimant having been granted limited leave to enter, or remain in, the United Kingdom under the Immigration Act 1971f6 by virtue of—

(a)

Appendix EU to the immigration rulesf7 made under section 3(2) of that Act; or

(b)

being a person with a Zambrano right to reside as defined in Annex 1 of Appendix EU to the immigration rules made under section 3(2) of that Act.”;

(d)

in paragraph (4)(za)f8 for “Immigration (European Economic Area) Regulations 2006” substitute “Immigration (European Economic Area) Regulations 2016”.

3Amendment of the Jobseeker’s Allowance Regulations

In regulation 85A of the Jobseeker’s Allowance Regulations (Northern Ireland) 1996f1 (special cases: supplemental–persons from abroad)—

(a)

in paragraph (2)(b) after “paragraph (3)” insert “or (3A)”;

(b)

in paragraph (3)f2—

(i)

in sub-paragraph (a) for “Immigration (European Economic Area) Regulations 2006” substitute “Immigration (European Economic Area) Regulations 2016”;

(ii)

for sub-paragraph (aa) substitute—

“(aa)

regulation 16 of those Regulations, but only in a case where the right exists under that regulation because the claimant satisfies the criteria in paragraph (5) of that regulation;”;

(c)

after paragraph (3) insert—

“(3A)

A right to reside falls within this paragraph if it is one which exists by virtue of a claimant having been granted limited leave to enter, or remain in, the United Kingdom under the Immigration Act 1971 by virtue of—

(a)

Appendix EU to the immigration rules made under section 3(2) of that Act; or

(b)

being a person with a Zambrano right to reside as defined in Annex 1 of Appendix EU to the immigration rules made under section 3(2) of that Act.”;

(d)

in paragraph (4)(za)f3 for “Immigration (European Economic Area) Regulations 2006” substitute “Immigration (European Economic Area) Regulations 2016”.

4Amendment of the State Pension Credit Regulations

In regulation 2f1 of the State Pension Credit Regulations (Northern Ireland) 2003f2 (persons not in Northern Ireland)—

(a)

in paragraph (2) after “paragraph (3)” insert “or (3A)”;

(b)

in paragraph (3)—

(i)

in sub-paragraph (a) for “Immigration (European Economic Area) Regulations 2006” substitute “Immigration (European Economic Area) Regulations 2016”;

(ii)

for sub-paragraph (bb)f3 substitute—

“(bb)

regulation 16 of those Regulations, but only in a case where the right exists under that regulation because the person satisfies the criteria in paragraph (5) of that regulation;”;

(c)

after paragraph (3) insert—

“(3A)

A right to reside falls within this paragraph if it is one which exists by virtue of a person having been granted limited leave to enter, or remain in, the United Kingdom under the Immigration Act 1971 by virtue of—

(a)

Appendix EU to the immigration rules made under section 3(2) of that Act; or

(b)

being a person with a Zambrano right to reside as defined in Annex 1 of Appendix EU to the immigration rules made under section 3(2) of that Act.”;

(d)

in paragraph (4)(za)f4 for “Immigration (European Economic Area) Regulations 2006” substitute “Immigration (European Economic Area) Regulations 2016”.

5Amendment of the Housing Benefit Regulations

In regulation 10 of the Housing Benefit Regulations (Northern Ireland) 2006f1 (persons from abroad)—

(a)

in paragraph (3) after “paragraph (4)” insert “or (4A)”;

(b)

in paragraph (4)—

(i)

in sub-paragraph (a) for “Immigration (European Economic Area) Regulations 2006” substitute “Immigration (European Economic Area) Regulations 2016”;

(ii)

for sub-paragraph (bb)f2 substitute—

“(bb)

regulation 16 of those Regulations, but only in a case where the right exists under that regulation because the person satisfies the criteria in paragraph (5) of that regulation;”;

(c)

after paragraph (4) insert—

“(4A)

A right to reside falls within this paragraph if it is one which exists by virtue of a person having been granted limited leave to enter, or remain in, the United Kingdom under the Immigration Act 1971 by virtue of—

(a)

Appendix EU to the immigration rules made under section 3(2) of that Act; or

(b)

being a person with a Zambrano right to reside as defined in Annex 1 of Appendix EU to the immigration rules made under section 3(2) of that Act.”;

(d)

in paragraph (5)(za)f3 for “Immigration (European Economic Area) Regulations 2006” substitute “Immigration (European Economic Area) Regulations 2016”.

6Amendment of the Housing Benefit (Persons who have attained the qualifying age for state pension credit) Regulations

In regulation 10 of the Housing Benefit (Persons who have attained the qualifying age for state pension credit) Regulations (Northern Ireland) 2006f1 (persons from abroad)—

(a)

in paragraph (3) after “paragraph (4)” insert “or (4A)”;

(b)

in paragraph (4)—

(i)

in sub-paragraph (a) for “Immigration (European Economic Area) Regulations 2006” substitute “Immigration (European Economic Area) Regulations 2016”;

(ii)

for sub-paragraph (bb)f2 substitute—

“(bb)

regulation 16 of those Regulations, but only in a case where the right exists under that regulation because the person satisfies the criteria in paragraph (5) of that regulation;”;

(c)

after paragraph (4) insert—

“(4A)

A right to reside falls within this paragraph if it is one which exists by virtue of a person having been granted limited leave to enter, or remain in, the United Kingdom under the Immigration Act 1971 by virtue of—

(a)

Appendix EU to the immigration rules made under section 3(2) of that Act; or

(b)

being a person with a Zambrano right to reside as defined in Annex 1 of Appendix EU to the immigration rules made under section 3(2) of that Act.”;

(d)

in paragraph (5)(za)f3 for “Immigration (European Economic Area) Regulations 2006” substitute “Immigration (European Economic Area) Regulations 2016”.

7Amendment of the Employment and Support Allowance Regulations

In regulation 70 of the Employment and Support Allowance Regulations (Northern Ireland) 2008f1 (special cases: supplemental – persons from abroad)—

(a)

in paragraph (2) after “paragraph (3)” insert “or (3A)”;

(b)

in paragraph (3)—

(i)

in sub-paragraph (a) for “Immigration (European Economic Area) Regulations 2006” substitute “Immigration (European Economic Area) Regulations 2016”;

(ii)

for sub-paragraph (bb)f2 substitute—

“(bb)

regulation 16 of those Regulations, but only in a case where the right exists under that regulation because the claimant satisfies the criteria in paragraph (5) of that regulation;”;

(c)

after paragraph (3) insert—

“(3A)

A right to reside falls within this paragraph if the right exists by virtue of a claimant having been granted limited leave to enter, or remain in, the United Kingdom under the Immigration Act 1971 by virtue of—

(a)

Appendix EU to the immigration rules made under section 3(2) of that Act; or

(b)

being a person with a Zambrano right to reside as defined in Annex 1 of Appendix EU to the immigration rules made under section 3(2) of that Act.”;

(d)

in paragraph (4)(za)f3 for “Immigration (European Economic Area) Regulations 2006” substitute “Immigration (European Economic Area) Regulations 2016”.

Signature

Sealed with the Official Seal of the Department for Communities on 17th April 2019

(L.S.)

Anne McCleary

A senior officer of the Department for Communities

The Department of Finance hereby consents to regulations 5 and 6.

Sealed with the Official Seal of the Department of Finance on 17th April 2019

(L.S.)

Emer Morelli

A senior officer of the Department of Finance

Explanatory note

(This note is not part of the Regulations)

These Regulations amend the Income Support (General) Regulations (Northern Ireland) 1987, the Jobseeker’s Allowance Regulations (Northern Ireland) 1996, the State Pension Credit Regulations (Northern Ireland) 2003, the Housing Benefit Regulations (Northern Ireland) 2006, the Housing Benefit (Persons who have attained the qualifying age for state pension credit) Regulations (Northern Ireland) 2006 and the Employment and Support Allowance Regulations (Northern Ireland) 2008 (together the “income-related benefit regulations”).

The income-related benefit regulations provide that a claimant is ineligible for benefits where he or she is a “person from abroad”, or in the case of state pension credit, a “person not in Northern Ireland”. A person is a person from abroad or a person not in Northern Ireland (as the case may be) if he or she is not habitually resident in the United Kingdom, the Channel Islands, the Isle of Man or the Republic of Ireland. No person shall be treated as habitually resident without a relevant right to reside in the place where he or she is habitually resident. However, certain categories of people are exempt from this habitual residence test.

These Regulations amend the income-related benefit regulations to reflect that a new right to reside has been created for nationals of European Economic Area states (“EEA nationals”) in Appendix EU to the immigration rules made under section 3(2) of the Immigration Act 1971, in the form of limited leave to enter, or remain in, the United Kingdom. The effect of these Regulations is that this new right to reside is not a relevant right to reside for the purposes of establishing habitual residence.

These Regulations also reflect the change to the immigration rules that enables a non-EEA national carer of a British Citizen in the situation described in regulation 16(5) of the Immigration (European Economic Area) Regulations 2016 (a “Zambrano carer”) to be granted limited leave to enter, or remain in, the United Kingdom under Appendix EU. This continues to be a right to reside that is not relevant for the purposes of establishing habitual residence.

These Regulations also update provisions in the income-related benefit regulations that refer to the Immigration (European Economic Area) Regulations 2006 so that instead they refer to the Immigration (European Economic Area) Regulations 2016, as the latter revoked the former.

These Regulations make in relation to Northern Ireland only provision corresponding to provision contained in Regulations made by the Secretary of State for Work and Pensions in relation to Great Britain and accordingly, by virtue of section 149(3) of, and paragraph 10 of Schedule 5 to, the Social Security Administration (Northern Ireland) Act 1992 (c. 8), are not subject to the requirement of section 149(2) of that Act for prior reference to the Social Security Advisory Committee.