Explanatory note

These Regulations amend the Income Support (General) Regulations (Northern Ireland) 1987, the Housing Benefit (General) Regulations (Northern Ireland) 1987, the Jobseeker’s Allowance Regulations (Northern Ireland) 1996 and the State Pension Credit Regulations (Northern Ireland) 2003.

Those regulations provide that a claimant is ineligible for benefit 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 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 persons are exempt from this habitual residence test.

These Regulations amend an existing category which exempts those with exceptional leave to enter the United Kingdom granted by an immigration officer, or to remain in the United Kingdom granted by the Secretary of State. The amended exemption defines exceptional leave by reference to it being leave to enter or remain granted outside of the rules made under section 3(2) of the Immigration Act 1971 (“the Immigration Rules”). It no longer refers to the person who grants the leave.

These Regulations also insert a new category of persons who are exempt from the habitual residence test, namely those who have humanitarian protection granted under the Immigration Rules. Prior to 9th October 2006, humanitarian protection was a type of exceptional leave to enter or remain granted outside the Immigration Rules. A person granted humanitarian protection was exempt from the habitual residence test because of the exceptional leave exemption previously mentioned. From 9th October 2006, the Immigration Rules are amended so that humanitarian protection is granted under those rules. Those amendments are made in consequence of Council Directive 2004/83/EC (OJ L 304, 30.9.04, p.12).

In so far as these Regulations are required, for the purposes of regulation 3, to be referred to the Social Security Advisory Committee under section 149(2) of the Social Security Administration (Northern Ireland) Act 1992, after agreement by the Social Security Advisory Committee, they have not been so referred by virtue of section 150(1)(b) of that Act. Otherwise they 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, that Act, are not subject to the requirement of section 149(2) for prior reference to the Social Security Advisory Committee.