The equivalent Regulations in the UK on which these provisions are based also provide exemptions from the habitual residence test for UK-wide income-related benefits such as Universal Credit. This allows people arriving under the Home Office resettlement schemes to meet residency requirements from day one. For these benefits, there is a further category of people who do not fall within these schemes. That is people who ‘left Afghanistan in connection with the collapse of the Afghan government that took place on 15th August 2021’. This covers others returning to the UK in exceptional circumstances, including returning UK nationals, and is intended to ensure they have access to income-related benefits from day one to help with immediate needs. This in turn will provide access to Scottish benefits such as BSG which for most people rely on receipt of Universal Credit, or another income-related qualifying benefit. However, it does not ensure early access to disability and carers’ benefits for this group.
Immediate needs for disabled people may include extra costs of transport, clothing, fuel and other disability-related needs, or social barriers. While some people returning to the UK will meet residence conditions for disability and carers’ benefits without needing a further special exemption (e.g. because returning UK residents can be accepted as habitually resident from day one), there may be others who have to wait to qualify. There may be no scope for Scottish Government to diverge from the UK-led changes for those benefits such as PIP delivered by the DWP on behalf of Scottish Government, but presumably there is scope to diverge, to some extent, for Scottish benefits such as ADP and CDP, in line with principle g (ii).
Recommendation 1: Scottish Government is invited to consider whether there is a need to provide an exemption for others coming to the UK from Afghanistan who are not covered by the Home Office resettlement schemes.
We also note a typo in the Regulations which does not alter the legal effect and could be corrected in due course. Regulation 3(2) amends BSG pregnancy and baby payment residence rules in paragraph 4(2) of schedule 2 of the Early Years Assistance (Best Start Grants) (Scotland) Regulations 2018, inserting a new paragraph (ab) ‘a person who – (i) [has] leave to enter ….’.