The Social Security (Residence Requirements) (Ukraine) (Scotland) Regulations 2022: scrutiny report

The Scottish Commission on Social Security (SCoSS)is pleased to report on The Social Security (Residence Requirements) (Ukraine) (Scotland) Regulations 2022^[2] (henceforth referred to as ‘the Regulations’), that were laid in the Scottish Parliament on 21 March 2022 and came into force on 22 March 2022.

As a result of the invasion of Russian forces and war in Ukraine, which began in February 2022, almost 6 million people registered for national protection schemes in Europe^[3]. Many are seeking sanctuary in surrounding states in the Baltics and further afield. Some are coming to the UK via schemes established by the Home Office. In Scotland, the super-sponsor scheme enables visa holders to be given permission to travel to the UK without being matched to a host. This was paused in July 2022 due to unexpectedly high demand (see Annex 1 for an overview of the various support schemes).

The need for the emergency Scottish legislation arose from the UK Government’s decision to remove certain residence-based qualifying conditions, thereby enabling displaced people coming to the UK under the approved schemes to access the benefits system immediately upon arrival^[4], and regulations introduced by the Department for Work and Pensions (DWP) to implement this^[5]. To ensure parity of access to devolved Scottish assistance, Scottish Ministers had to meet the same commencement date for the amendments to Scottish legislation as the UK legislation.

Thus, the purpose of the Regulations, as set out in the policy note^[6] is to:

• ensure the alignment of social security legislation for Scottish benefits still being delivered by the Department for Work and Pensions under Agency Agreement.
• amend additional forms of devolved assistance made under regulations stemming from the Social Security (Scotland) Act 2018 and the Social Security Act 1998, and in relation to the Council Tax Reduction Scheme in Scotland.

Regulations 1 to 8 fall within SCoSS’s remit to scrutinise, in accordance with 97(1)(a) of the Social Security (Scotland) Act 2018^[7] (hereafter referred to as ‘the Act’). However Regulations 9 and 10 amend The Council Tax Reduction (Scotland) Regulations 2012^[8] and these fall outside the scope of Section 97(1)(a) and, therefore, our recommendations do not apply to either Regulation 9 or 10.

In the brief lead up to the Regulations being laid, the SCoSS Board was informed that the Scottish Government was awaiting Home Office immigration decisions before proceeding further with their own legislation which would, in turn, allow the Scottish Government to establish the legislative timeline.

The speed with which the Regulations needed to be laid unavoidably meant our scrutiny was carried out after the event. The draft Regulations were referred to us on 21 March 2022 (see Annex 2 for details of our approach to scrutiny and timeline). However, this means we have usefully been able to draw on experience of how the Regulations have played out in subsequent delivery and that is the focus of this report. We thank the Scottish Refugee Council and Social Security Scotland for insights offered, which have informed it.

As with all our scrutiny of Regulations this report provides commentary in connection with human rights and the social security principles set out in Section 1 of the Social Security (Scotland) Act 2018^[9], as operationalised via “Our Charter”^[10]. We noted in our previous report on regulations pertaining to displaced persons from Afghanistan, the situation of displaced people has implications human rights[11], principles and for action to meet various Charter expectations, some in particular[12]. These and other recommendations made in that report apply here too. We refer to them where relevant, along with any additional implications arising.

Since the Regulations came into force, an administrative oversight was brought to SCoSS’s attention on 10 August 2022 that necessitates amendments to regulations. This concerns a specific cohort of people born in Northern Ireland and now returning to the UK from Ukraine.  SCoSS subsequently drew officials’ attention to some implications for other Irish citizens not born in Northern Ireland. Amendments to regulations will be required to address this and we understand that officials are taking action accordingly.

Having scrutinised the Regulations as laid there are no other obvious technical issues with them in regards to the removal of certain residence-based qualifying conditions allowing Ukrainian citizens coming to the UK to access the benefits system immediately upon arrival. However, in our report we highlight a number of important issues including the case for requirement for a retrospective analysis of the impact on delivery partners and of the implications for advancing equality and non-discrimination, ensuring information specifically on devolved benefits and the Social Security Charter reaches displaced people previously resident in Ukraine, and the need to understand the lived experiences of the people affected by these Regulations and how to encourage take up among displaced communities.

[2] The Social Security (Residence Requirements) (Ukraine) (Scotland) Regulations 2022 (legislation.gov.uk)

[3] Ukraine Refugee Situation (unhcr.org)

[4] Home Secretary statement on humanitarian support for Ukrainians – GOV.UK (www.gov.uk)

[5] The Social Security (Habitual Residence and Past Presence) (Amendment) Regulations 2022 (legislation.gov.uk)

[6] The Social Security (Residence Requirements) (Ukraine) (Scotland) Regulations 2022: policy note – gov.scot (www.gov.scot)

[7] Social Security (Scotland) Act 2018 (legislation.gov.uk)

[8] The Council Tax Reduction (Scotland) Regulations 2012 (legislation.gov.uk)

[9] Social Security (Scotland) Act 2018 (legislation.gov.uk)

[10] Social Security Scotland – Our Charter

[11] Further analysis of the human rights implications for displaced people can be found in Section 3 of our scrutiny report on the Afghanistan regulations.

[12] We noted in particular: Part 2, expectation 3: “adapt processes and ways of communicating as much as we reasonably can to meet your needs and preferences, for example by providing interpreters”; Part 2, expectation 5: “ensure that disabled people who need help with the application process can get independent advocacy”;  Part 3, expectation 5: “ensure staff understand the needs of different people and the barriers they face – so that no-one experiences discrimination because of who they are”.