LAST month Scotland’s supreme court, the Court of Session held that Her Majesty’s Revenue and Customs (HMRC) was wrong to refuse a claim for backdated child tax credits for asylum seekers who had been granted refugee status.
Tomorrow, HMRC will lodge a reclaiming motion in the case of Adnan Petitioners. In effect, this is an appeal to Scotland’s highest appellate court, the Inner House of the Court of Session. Every litigant has the right to pursue an appeal.
Fundamental issues are at stake here: our respect for upholding international law and our government’s continued reluctance to treat refugees with fairness, dignity and respect.
Not least because it’s a ruling in favour of those accepted by the UK government as being lawfully entitled to come and live in the UK as refugees for their protection under international law.Mike Dailly, solicitor advocate Govan Law Centre
The Hostile Environment
The hostile environment of the government has always been directed towards illegal immigrants or those seeking asylum, as opposed to those who are accepted as refugees in fact and law.
One can remember then Home Secretary, Theresa May, saying in 2012, “The aim is to create, here in Britain, a really hostile environment for illegal immigrants”.
Adnan Petitioners was the first successful social security test case for asylum seekers and tax credits in the UK. A similar test case was argued before the High Court in England a couple of weeks ago, but a judgment has yet to be issued.
If you are a refugee or asylum seeker and you need further advice please contact Govan Law Centre on 0800 043 0306 or your local advice centre.
Preserved rights of refugees to claim child tax credits
Although child tax credits were abolished and replaced with Universal Credit on 1 February 2019, the law provided that particular groups of claimants – including asylum seekers – had preserved rights if their claim was for a period that included 31 January 2019.
UK social security law preserved the right to claim child tax credits from the original date asylum was sought in the UK, so long as a claim was made within one month of the date of refugee status.
HMRC argued that no such claim could ever be made as it was no longer possible to claim tax credits since the roll out of universal credit. Lord Tyre disagreed. The law had expressly preserved the rights of refugees to claim child tax credits.
It’s important to remember that refugees with children are also entitled to seek backdated child benefit. Interestingly, the government has never chosen to appeal tribunal decisions in favour of refugees being granted backdated child benefit.
No doubt the government now wishes to stave off future tax credit claims, and the possibility of a large volume of late backdated appeals. From that viewpoint, an appeal may appear a very attractive financial risk to take.
A person is a refugee from the moment that the conditions set out in international law by the Convention relating to the Status of Refugees 1951 (the 1951 Geneva Convention) are satisfied. Article 24 of the 1951 Geneva Convention makes provision for refugees to be afforded the same entitlement under social security law as nationals are givenMike Dailly, solicitor advocate Govan Law Centre
Read Mike’s full article Glasgow Evening Times article here
Nothing to stop refugees submitting late claims
Although a refugee only has a month to claim backdated child tax credits from when they were notified of refugee status, there is nothing to stop refugees submitting late claims on the basis HMRC’s advice was unlawful.
A claimant may then be able to seek a revision of a refusal decision and pursue a late tribunal appeal upon the grounds of official error and wrongful advice on the part of HMRC.
It’s important to appreciate that the preservation of the right of refugees to claim backdated child tax credits from the date of an asylum claim is about equity, equality and equivalence. The law only puts refugees in the same position as UK citizens in the past. Nothing more, nothing less.
For me this point is crucial because it ultimately flows from the UK’s ratification of the 1951 Convention relating to the Status of Refugees. The UK’s claim process only provides the mechanism by which refugee status is identified.
The only way that a state can honour that obligation is to provide that claimants’ ultimate entitlement to social security benefits is not affected by the delay in recognising their status.
There is a presumption that legislation should give effect to a state’s obligations under international law.
What does it say for our respect for international law if UK government practice and policy seeks to circumvent 1951 Geneva Convention duties?
Particularly so, when the UK Parliament has never repealed the right of refugees to claim backdated child tax credits because of universal credit.
For me the more fundamental issues at stake are our respect for upholding international law and our government’s continued reluctance to treat refugees with fairness, dignity and respect.