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Scottish ruling on refugees getting backdated benefits upheld


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The Inner House of the Court of Session has rejected an appeal by HM Revenue and Customs against a ruling that newly recognised refugees are entitled to backdated child tax credit. The case is HMRC v Adnan [2022] CSIH 2.

Mr and Mrs Adnan first applied for asylum in 2013 and were eventually granted it in 2019, after submitting a fresh claim. They then asked for child tax credit, a social welfare payment, backdated to 2013. Regulation 3(6) of the Tax Credits (Immigration) Regulations 2003 seemed to permit this. But that was contradicted by Article 7 of the Welfare Reform Act 2012 (Commencement No. 23 and Transitional and Transitory Provisions) Order 2015. As Lord Woolman put it:

The 2003 Regulations and the 2015 Order each appears to supply a different answer to the central issue. Regulation 3 allows the petitioners to claim child tax credit. Article 7 does not.

The court backed the Adnans. Among other things, the government’s preferred interpretation

treats regulation 3 as being of no force or effect. The 2015 Order, however, did not (as HMRC accept) expressly revoke or repeal it. Indeed it did not refer to the 2003 Regulations at all… As to implied revocation or repeal, regulation 3 conferred a contingent right on asylum seekers. Clear language is required to remove such a right… That language is absent here.

Child tax credit is being phased out and largely closed to new claims, so this judgment only affects refugees whose backdated claim covers a period which includes 31 January 2019. More detail in Bilaal’s post about the earlier decisions in the Outer House and High Court.

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.

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CJ McKinney

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.