DWP failure to offer new claim advance to newly recognised refugee and incorrect requirement to satisfy HRT

Use this template if all the following apply

• Your client has refugee status, humanitarian leave or leave outside the immigration rules
• Your client has evidenced their status by providing one piece of primary evidence and two pieces of secondary evidence
• Your client does not yet have an eVisa and their universal credit (UC) claim has not been decided pending provision of their eVisa

This letter assumes that (so can be changed)

• Your client has a national insurance number
• Your client has claimed UC but a UC advance has not been offered, and
• Your client has been required to satisfy the habitual residence test causing a delay in decision on UC

When not to use

Do not use this letter if:

• your client's only issue is HRT requirement or failure to offer an advance. 

This letter covers three issues, separate templates exist for:

DWP failure to offer a newly recognised refugee an advance UC payment

DWP failure to make a habitual residence test decision and decide a claimant’s UC claim within a reasonable time

The main legal arguments in this template are:

1. The claimant has been granted leave to remain but has not yet received their eVisa. The claimant has instead provided both an Application Registration Card and the Home Office Decision Grant Letter (plus primary and secondary evidence).
2. DWP guidance provides that these documents can be used together in place of an eVisa to evidence a claimant's identity and immigration status. Where published policy exists, there is a public law for duty for decision makers to follow it, as confirmed by Lord Dyson in R (Lumba) v SSHD [2011] UKSC 12.
3. DWP's failure to accept the claimant's evidence in breach of DWP's own guidance, and/or in the alternative to make enquiries of the Home Office is unlawful.
4. As a refugee, the claimant is exempt from the HRT under reg. 9(4) UC Regs, and as confirmed in DWP ADM guidance Chapter 'C1: Universal Credit - International Issues'. DWP is failing to apply reg 9(4) UC Regs and is further unlawfully in breach of its own guidance and the case law which says that guidance should be followed - R (Lumba) v SSHD [2011] UKSC 12.
5. Failure to apply the exemption in reg 9(4) UC Regs amounts to unlawful discrimination contrary to Article 14 ECHR in conjunction with Article 1, Protocol 1 and the Human Rights Act 1998 - welfare benefits are a recognised form of property for the purposes of Article 1, Protocol 1, the claimant has an identifiable 'other status' as a refugee.
6. DWP's operational guidance 'Refugees and Asylum Seekers' specifically provides that a "refugee must be offered an advance payment when making a new claim" and C demonstrably meets the eligibility conditions under the legislation. 

Information about your client

• name
• address
• national insurance number (NINO)
• date of birth

Background facts

Such as:

• details of refugee status
• country of origin
• date your client entered the UK
• your client's family circumstances, other income, housing, children
• your client's disability details if relevant
• the effect of the delay on your client

Information relating to the decision

• the date your client received notification of their refugee status
• the date until which your client has leave to remain
• the date your client submitted an online claim for UC
• the date your client provided evidence confirming ID and showing leave to remain
• the date the DWP contacted your client and method of correspondence
• the date your client submitted a request for a UC advance and details of how this was made
• details of how and when the DWP responded

We've created this guide to help you successfully use our judicial review pre-action letter templates: Guide to using CPAG's judicial review pre-action letter templates

Once you've finished your letter, please email it to us at: [email protected] before you send it to the lawyers acting for DWP/HMRC/your local authority. We'll try to reply as quickly as possible and will do so within 7 days.