Eligibility for Child Benefits as a British Citizen earning abroad with a Working Spouse on Skilled Worker Visa

[malcoski]

I am a British citizen who returned to the UK last year to live while my partner works here. She is Ukrainian and on a Skilled Worker Visa, currently in her second year of a five-year term. Although I travel out of the country for work occasionally, my main source of income is from outside the UK.

We got married this year and had a child in April, who already has a British passport. My wife is currently on maternity leave and will return to work in January. Given my nationality and our current situation, I would like to know if we are eligible to claim child benefits or child tax credits for our child, even though I do not work in the UK (but do spend time here).

Thank you for any advice you can offer.

[Amber]

Assuming your partner is subject to immigration control, eg no recourse to public funds restriction, then your partner cannot claim child benefit. In terms of you applying for child benefit, you must be ordinarily resident in the UK, although not defined in legislation, it can be complex, to understand what it may mean for child benefit, see - https://www.gov.uk/hmrc-internal-manual ... /cbtm10020 namely:

Ordinary residence - leaving the United Kingdom

When considering whether a person leaving the United Kingdom has ceased to be ordinarily resident here, the decision is whether they have, for the time being, ceased to live here as part of the regular order of their life. All the relevant factors should be considered in order to build up an overall picture of the person’s position.

Examples of factors, which may be relevant, are given below. These factors may help to indicate whether a person is ordinarily resident or not. Normally, no one factor on its own will determine that a person is, or is not, ordinarily resident. A decision will need to be made according to all the circumstances of the particular case.

Examples of relevant factors:

• Will the person be returning to the United Kingdom? If so, this may indicate that ordinary residence continues during the period(s) abroad (the sooner, more frequent or longer the return visits, the stronger that indication). If the person does not intend to return, this indicates that they have ceased to be ordinarily resident.

• What will the purpose of any return visits be? Visits to see family who have remained at the person’s home in the United Kingdom or holidays spent at such a retained home in the United Kingdom may indicate continued ordinary residence. Visits connected to the absence abroad (for example, being sent to the UK for training by an overseas employer) are less likely to indicate ordinary residence.

• Will the person’s family (spouse or partner and any children) be going abroad as well? If so, this may indicate that the person (and his or her family) is no longer ordinarily resident, particularly if they do not maintain a home in the United Kingdom. If the person’s family remains in the United Kingdom, however, this may indicate that the person continues to be ordinarily resident here.

• Will the person retain a home in the United Kingdom during their period abroad? If so, this may indicate continuing ordinary residence during the period of absence. If not, the person is less likely to remain ordinarily resident.

• If the person retains a home in the United Kingdom, will it be available for their use when they return? If so, this is an indication that ordinary residence may continue. If not - for example, because it is let on a long lease - then it is less likely that the person will remain ordinarily resident.

• Will the person be returning to the United Kingdom at the end of the period abroad? If so, this may indicate that ordinary residence continues. If not, this may indicate that the person ceases to be ordinarily resident, particularly if they do not retain a home in the United Kingdom during their absence.
  How long has the person lived in the United Kingdom? The longer the period, the stronger the indication that the person is ordinarily resident.

[malcoski]

Thank you so much for taking the time to reply.

Based on the guidelines, I am now definitely considered to have ordinary residence in the UK.

For the past 10 years, I have mostly lived outside the UK and have paid taxes on my earnings in the country where I worked. Given that my circumstances have changed over the past year and for the foreseeable future, I am now considering whether my taxes should be paid to the UK instead, in accordance with the double taxation treaty. The guidelines on this matter are somewhat vague, and there is still a case for paying my employment taxes in the country where I earn (in this case, Sri Lanka).

However, if my taxes are paid in the country of earning, would I still be entitled to child benefits in the UK, or would that require me to pay employment taxes in the UK as well?

I appreciate any guidance you may have.