Refugee wins legal challenge to HMRC's refusal to accept backdated child tax credit claim for period since asylum claim | CPAG

Refugee wins legal challenge to HMRC's refusal to accept backdated child tax credit claim for period since asylum claim

Published on: 
06 July 2021
  • High Court rules claimant not barred from making a claim for backdated child tax credits following the success of his asylum claim
  • Today’s judgment gives hope to other newly recognised refugee families who claimed asylum prior to the roll out of universal credit that they can access support they were otherwise entitled to under the tax credit scheme

Child Poverty Action Group (CPAG) has successfully challenged HMRC’s refusal to accept a newly recognised refugee’s claim for backdated child tax credits in a judicial review case brought on behalf of the claimant.

Since tax credits were introduced in 2003, there have been carefully designed provisions in place for newly recognised refugees to claim backdated tax credits for the period since their asylum claim. 1

In this case, the claimant arrived in the UK in 2009 with his wife and son (then aged 11) and the family claimed asylum shortly after. The family were eventually granted refugee status a decade later in December 2019, following a successful appeal in the Immigration and Asylum Tribunal.  In January 2020, HMRC refused to accept the claimant’s claim for backdated child tax credits, made within one month of him being notified of his grant of asylum, and decided in April 2020 that the claimant could not make a claim.

In the judicial review proceedings, both HMRC (as Defendant) and the Secretary of State for Work and Pensions (as Interested Party) argued that the introduction of transitional provisions for universal credit 2 and the roll out of universal credit in the claimant’s area meant that he could no longer claim child tax credits under the backdating provisions. This was despite the whole period covered by the claimant’s tax credits claim falling before he could have made a claim for universal credit, even if his refugee status had been recognised by the Home Office earlier.  

The High Court in England & Wales today found in favour of the claimant. In his judgment, Mr Justice Bourne agreed with CPAG that the claimant was not barred from claiming tax credits under the tax credits backdating provisions, which remain in force.  

HMRC will now be required to accept the claimant’s tax credits claim; treat it as received on the day the claimant claimed asylum, as is required by the backdating provisions; and calculate and award child tax credits accordingly. CPAG estimates that the family’s backdated entitlement is around £11,500.3

However, HMRC’s decision to appeal the judgment could delay matters further for the claimant and his family. The High Court has reached the same conclusion as a judgment by a Scottish court on the same issue, 4 given only a few weeks ago, and HMRC has indicated that it intends to appeal the judgment in that case. The High Court today granted permission for HMRC to appeal to the Court of Appeal in England & Wales and commented that it will be for the appellate courts in England & Wales and Scotland to consider whether to stay one set of the appeal proceedings.

Commenting on the result, CPAG’s solicitor Claire Hall said:

“We are delighted that the High Court has recognised that refugees like our client can access support for their children and families under the tax credits scheme.

“Government’s attempt to deny them their lawful entitlement would have prevented recognised refugees from receiving the basics that are vital to help them rebuild their lives.

It is now time for government to right this wrong and make sure that children our country has a duty to protect are treated fairly and given the chance to thrive.”

Notes to editors:

The judgment is available at: https://cpag.org.uk/sites/default/files/files/DK-v-HMRC-Approved-Judgment.pdf

An anonymity order is in place for the claimant.

Contact CPAG press office on: 07816 909302

 

  • 1. Note: The backdating provisions for refugees are set out in the Tax Credit (Immigration) Regulations 2003, made under the Tax Credits Act 2002.
  • 2. [ii] Note: The provision relied on by the government was Article 7 of the Welfare Reform Act 2012 (Commencement No. 23 and Transitional and Transitory Provisions) Order 2015 (SI 2015/634).
  • 3. Note: Asylum support payments which refugees might have received during the period for which they are claiming backdated child tax credits are off-set from any backdated tax credits entitlement, meaning that the amount of tax credits a newly recognised refugee family can claim will be adjusted depending on how much asylum support they received.
  • 4. Note: The Outer House of the Court of Session handed down judgment in Adnan and Adnan v HMRC [2021] CSOH 63 on 15 June 2021, the day before the hearing in CPAG’s judicial review and decided the same issue. Whilst not binding on the High Court, the High Court opted to follow the decision of the Outer House, stating “It would be extremely undesirable for conflicting Court decisions to compel applications by refugees to be resolved in one way in Scotland and in another way in England and Wales. In my judgment there are no “compelling reasons to the contrary”” (para. 45).