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I can do no better than adopt Tom Royston’s summary of R (DK) v Revenue and Customs[2022] EWCA Civ 120: in an important decision about the rights of refugees to financial support for children, the Court of Appeal in England and Wales has agreed with their colleagues in Scotland: refugees can make backdated child tax credit claims.
The refugee in this case was a Sri Lankan man known as DK. He claimed asylum in December 2009 and was refused three times, before eventually securing refugee status ten years later.
DK then applied for backdated child tax credit in respect of his son, who had by now turned 18 and left full-time education but was a qualifying child for much of the period during which his father’s asylum claims were pending. He relied on regulation 3 of the Tax Credits (Immigration) Regulations 2003:
(4) Where a person has submitted a claim for asylum as a refugee… in the first instance he is not entitled to tax credits, subject to paragraphs (5) to (9).
(a) is notified that he has been recorded by the Secretary of State as a refugee or has been granted section 67 leave, and
(b) claims tax credit within one month of receiving that notification…
(6) He shall be treated as having claimed tax credits –
(a) on the date when he submitted his claim for asylum…
In other words, you could claim a lump sum calculated from the date you claimed asylum. The rationale is that you had been a refugee, and thus entitled to benefits, all along — it just took the Home Office a while (a decade, in this case) to officially confirm that via the asylum process.
The problem for DK was that child tax credit had been abolished by the Welfare Reform Act 2012. He therefore needed to show that the 2003 Regulations, which continued in force, trumped a later provision: Article 7 of the Welfare Reform Act 2012 (Commencement No. 23 and Transitional and Transitory Provisions) Order 2015. The wording of Article 7 appeared to rule out a backdated claim for child tax credit (although we must take the Court of Appeal’s word for that, as it is dizzyingly opaque).
Crucially for DK, another refugee family was pursuing the same point — Regulation 3 trumps Article 7 — through the Scottish courts, and won. The decisions played out as follows:
On 15 June 2021, the Court of Session Outer House in Scotland decided that backdated child tax credit claims are still possible in Adnan, Petitioners[2021] CSOH 63.
On 5 July 2021, the High Court in England and Wales agreed to follow the Outer House decision, on the basis that it would be good if the law on UK-wide benefits were the same across the UK, albeit with “some doubt” about the reasoning: DK[2021] EWHC 1845 (Admin).
On 18 January 2022, the Court of Session Inner House in Scotland upheld the Outer House decision, noting the High Court’s doubts but giving detailed reasons why “the result is sound”.
On 25 January 2022, DK’s appeal was heard in the Court of Appeal in England and Wales.
And what was good enough for the Inner House was good enough for its direct equivalent, the Court of Appeal:
There is a well-established practice that the courts in this jurisdiction will follow the decisions of courts in Scotland on the same point of interpretation in revenue matters, since the legislation is of application in both jurisdictions and it would be highly undesirable if there were inconsistent decisions. This is particularly so at the appellate level, since any decision of ours will be binding on this Court and lower courts and tribunals in England and Wales, while the decision of the Inner House will be binding on all courts and tribunals in Scotland. This is subject to there being a “compelling reason” not to follow a Scottish decision on the same point…
I can see no compelling reason to depart from the decision of the Inner House. Although I see some force in the submissions advanced on behalf of the Appellants, I also see force in the contrary submissions made on behalf of the Respondent, which in substance found favour in the Inner House.
All very interesting — but what does this mean in practice? Child Poverty Action Group says that some newly recognised refugees may still be in line for backdated payments:
Those providing advice to newly recognised refugees will need to calculate their client’s potential retrospective entitlement to CTC [child tax credit] to assess if they can benefit from the Court of Appeal’s judgment… The maximum period your client should claim for is between the date of their first claim for asylum, and their subsequent claim for Universal Credit (if UC has now been claimed). As with the claimant in DK, entitlement might end earlier, for example if a qualifying young person left full time education before UC was claimed.
The crucial thing is to apply within one month of the grant of refugee status. Child Poverty Action Group has a step-by-step guide and resources to help benefits advisors trying to help refugees with a claim.
Interested in refugee law? You might like Colin's book, imaginatively called "Refugee Law" and published by Bristol University Press.
Communicating important legal concepts in an approachable way, this is an essential guide for students, lawyers and non-specialists alike.
CJ McKinney is a specialist on immigration law and policy. Formerly the editor of Free Movement, you will find a lot of articles by CJ here on this website! Twitter: @mckinneytweets.
