Definition of Public Funds

[John]

The definition of "Public Funds" in para 6 of the Immigration Rules is changing with effect from 15 March 2005. The IND explanation about this is :-

Public funds

• In deciding whether to grant leave to enter or remain, the Secretary of State will decide whether persons can maintain and accommodate themselves without recourse to public funds. Where leave is granted, it may also be subject to conditions, one of which may be that the person does not have recourse to public funds. The definition of public funds in the Immigration Rules informs these decisions. Where a person breaches a condition of their leave they may be prosecuted or removed.
• The definition of public funds has been amended to delete references to those which no longer exist - invalid care allowance, working families' tax credit and disabled person's tax credit.
  
  The amendment also deletes a reference to income-based Jobseeker's allowance which appeared twice. Carer's allowance, state pension credit, working tax credit and child tax credit have now been included in the definition.
• A change has also been made to make clear that a person shall not be regarded as having recourse to public funds if they are not excluded from such funds under specified legislative provisions.

[olisun]

working tax credit and child tax credit have now been included in the definition. <=== finally they added this to the list

[John]

Indeed, and old benefits such as Working Family Tax Credit .... abolished at the end of March 2003 .... finally removed.

But note that whilst Working Tax Credit and Family Tax Credit have been added to the Public Funds list, there is a let-out clause so that if the detailed regulations of those tax credits still permit you to claim, notwithstanding immigration status, then you are still permitted to claim without breaching any immigration rule.

[nyrnu]

Hi,

any opinion/suggestion is welcome. thanks.

[John]

For the benefit of nyrnu, and indeed anyone else in the same position, it is worth referring to :-

Statutory Instrument 2003 No. 653 - The Tax Credits (Immigration) Regulations 2003

These are just one of the documents including detailed regulations concerning Tax Credits which were issued around the time that the credits were introduced back in 2003.

There will be quite a number of people in the same situation as nyrnu. Please refer to Regulation 3(2). In a nutshell this says that if one of a couple is subject to immigration control and the other is not, then for the purpose of tax credits only, both of them are to be treated as not being subject to immigration control. In other words, there is absolutely no problem in that couple claiming tax credits, and the claim by the person who is subject to immigration control is not a breach of the "No recourse to Public Funds" visa restriction.

Not only that, just after the regulations were published in 2003, I got an MP to ask a Parliamentary Written Question, namely :-

Mr. Simon: To ask the Secretary of State for the Home Department whether a claim under the terms of Regulation 3(2) of The Tax Credits (Immigration) Regulations 2003 (S.I. 2003, No. 653, by a couple including a person who is subject to immigration control will not be considered to be a breach of any restriction contained in a visa. [104441]

Beverley Hughes: The provisions of Regulation 3(2) of The Tax Credits (Immigration) Regulations 2003 will be fully taken into account when any changes are made to the list of public funds given at paragraph 6 of the Immigration Rules. In line with this regulation, receipt of tax credits by a couple, including one member who is a person subject to immigration control, will not be regarded as a breach of any condition of leave to enter or remain.

There there we have it, in black and white from the immigration minister at the time, in circumstances covered by regulation 3(2), there is no breach of the visa condition by the person who is subject to immigration control.

So nyrnu, nothing to do ... no need to worry!

[nyrnu]

Many thanks John. I think your answer has clarified this potential questions which many people may have in mind.

[John]

Hi, Child Benefit needs just one claimant. You will have noticed that it is within the definition of Public Funds.

Who to claim? It can be either parent. That is, you are just as entitled as your wife to be the Child Benefit claimant. You claiming Child Benefit will have no impact upon a later claim by your wife for ILR.

Just to clarify, your wife must not be the Child Benefit claimant whilst she has the visa with the "No recourse to Public Funds" restriction.

So you have had a child? Was that after you got ILR, or before? If the child was born after you got ILR then your child is already a British Citizen, if the child was born in the UK. If born in the UK, but before you got your ILR, then it is possible to apply to register the child as British. OK, you could do that when you personally apply for Naturalisation, except the application fees go up on 1st April 2005.Which would you prefer to pay? £144 or £200? (No application needed if the child was born in the UK after you got ILR.)

[nyrnu]

Thanks John.

[John]

nyrnu, your query is not unreasonable, but the situation you describe is not unusual. For example, a British Citizen marries a non-EEA person and they then have a child(ren). You rightly mention Q6.4 but as long as the claimant was entitled to make the claim for Public Funds then there is no reason to think that there will be a problem at all.

Edit : Just dug this quote of the IND website ..... instructions to its staff :-

Home Office policy on public funds is that there is no objection to the British citizen/settled sponsor receiving any public funds to which he is entitled in his own right. The important factor to consider is whether there will be a need for the sponsor to claim additional public funds to support the applicant.

Hope that helps.

[nyrnu]

Understood. Many thanks for detailed explanation and provide relevant reference. It is quite helpful.

[Nannybear]

Bumping this post up for myself to make it easier to find.