Govan Law Centre has successfully defended an appeal by HM Revenue & Customs in a dispute over claims by UK refugees for child tax credit.

The First Division of the Court of Session agreed that although tax credits were abolished and replaced with universal credit on 1 February 2019, the regulations preserved the rights of particular groups of claimants – including refugees – if their claim was for a period that included 31 January 2019. They retained the right to claim child tax credits from the original date of a claim for asylum in the UK, so long as a claim was made within one month of the date of refugee status.

Lord President Carloway, Lord Woolman and Lord Pentland rejected HMRC's argument that once individuals were entitled to claim universal credit, they could no longer claim backdated child tax credit.

Lord Woolman, delivering the opinion of the court, said there were "three major difficulties" with that argument.

First, it treated reg 3 of the Tax Credits (Immigration) Regulations, which set out the right to claim of a person accepted as having refugee status, as being of no force or effect, when it had not been expressly revoked or repealed it. Secondly, it failed to explain why reg 3 continued to be amended after 1 February 2019. And thirdly, it yielded an arbitrary result: a refugee’s ability to claim backdated child tax credit would turn on a random event – whether universal credit had been rolled out in a particular area, a true “postcode lottery”.

The court preferred the interpretation advanced for the claimants, Ali and Saima Adnan, by solicitor advocate Mike Dailly of Govan Law Centre, which turned on the meaning of the transitional provisions in the order bringing universal credit into effect. "That construction reconciles the two provisions. Neither takes primacy over the other. Instead they mesh. It also avoids an absurd result", Lord Woolman said.

A similar test case will come before the Court of Appeal in England & Wales next week. At first instance the High Court judge followed the Lord Ordinary in the present case on the broad ground of comity between the legal jurisdictions of the UK.

Rachel Moon, senior solicitor at Govanhill Law Centre commented: "This is an important decision. Scotland's highest civil court has confirmed that refugees who applied for asylum prior to 1 February 2019 have retained the important right to make a claim for a backdated payment of child tax credit. We would strongly encourage any refugees who applied for asylum before 1 February 2019 to seek advice to ensure that they receive all the payments they are entitled to."

It is not known how many refugees will be affected by this decision. Govan Law Centre has called on the UK Government to review past decisions made in cases such as these to ensure that all eligible claims for backdated tax credits are processed.

Click here to view the opinion of the court.