Made a BIg Mistake cklaiming Child Benefit

[ahmed786]

Hi

Have been going through my papers to process my wifes ILR (SET M) and have realised that we have made and recently child benefit in my wifes name!, which I uunderstand is Recourse to public funds.

The CB application was for my son born in July but the application was made in October so only just processed. She has already received a sum of £220 into her account. Im sending of the ILR form by Tuesday latest. I was thinking of writing a letter with the SET M application form stating that we claimed child benefit for my wife incorrectly when it should have been me (im a British citiizen) I think I will also contact the child benfit office to advise that we have made an incorect application and ask on how we can give the money back and process the application again in my name.

Im really concerned about how this will effect my wifes ILR application.

Please help with any advice.

[Obie]

[quote="UKBA Refusal Formula"]

4.9.1.
Scenario 2 – Example of withheld information not relevant to the decision
A person who has submitted an application for Indefinite Leave to Remain as a spouse has not declared they are in receipt of Child Benefit.
Investigations reveal they are in receipt of Child Benefit but this is legitimate because they fall under one of the exceptions to “no recourse to public fundsâ€

[Wanderer]

I beg to differ.

CB is only claimable by a BC or ILR holder or those otherwise allowed, ie EEA citizens or citizens of countries with which the UK has bilateral agreements on this.

As far as I can see the OP's wife isn't one of these so shouldn't have claimed CB.

Best course of action is to repay it, cancel the claim and for the OP to claim in his own right as a BC.

[John]

Wanderer, I totally agree with Obie, the person in the picture here is entitled to claim Child Benefit.

Please reread Obie's Public Funds exemption.

[Wanderer]

Wanderer, I totally agree with Obie, the person in the picture here is entitled to claim Child Benefit.

Please reread Obie's Public Funds exemption.

Ok! Help me understand! I thought only a BC/ILR/EEA/or bilaterally agreed person can claim CB, not the non-settled partner?

ie in this case the BC can claim for the child but not the OP's wife?

I know I'm wrong!

[John]

Wanderer, which part of the Public Fund Exemption are you not understanding?

If it is any consolation, I also fell into the same "trap" for ages, until I appreciated that because the UK is part of the EEA, spouses etc of British Citizens are just as covered by that wording as those of every other EEA citizen. Hint .... there is no need for the British Citizen to be exercising Treaty Rights for their spouse etc to get within the terms of this particular exemption.

[Wanderer]

Wanderer, which part of the Public Fund Exemption are you not understanding?

If it is any consolation, I also fell into the same "trap" for ages, until I appreciated that because the UK is part of the EEA, spouses etc of British Citizens are just as covered by that wording as those of every other EEA citizen. Hint .... there is no need for the British Citizen to be exercising Treaty Rights for their spouse etc to get within the terms of this particular exemption.

So, if that is the case, the quoted text from Obie also says that a non-settled person CAN claim WTC/CTC etc despite not being able to recourse to public funds etc?

So does that mean for example, that my non-EEA gf who lives with me ie not a spouse and resides in the UK can claim these benefits? We're not going to, just wondered!

Can't help but think I'm missing something obvious here!

[ahmed786]

Hi

Thanks , but im getting confused. Also my wife isn't from any of those countries she is from Pakistan.

I have spoken to a friend who suggests I revoke the application and make it again in my name (British citizen) and offer to pay the money back.

Im making the ILR application today and the first payment of child benefit was received on 30 October 2009 so i hope they can see that the moment we realised it was wrong we did something about it (1 week later).

I will send a letter with the ILR explaining this and to the Child benefits office asking them to revoke the application and take the money back, a copy of this letter will also be sent with the ILR.

Thanks

[Obie]

If you can demonstrate that your partner has been living with you in a relationship akin/analogous to marriage , duly attested, then she will be an exempt person, where the above, specifically mentioned benefits are concerned. Even a student that is married to, or in durable relationship with, a Brit or an EEA national is exempted.

The non-EEA national would have to be lawfully present in the UK though, to qualify.


It is important that a clear distinction is made between spouse/partner of an holder of ILR under UK immigration rules and the spouse/partner of a person with an EEA nationality/Permanent Resident card under EU law.

The spouse of the former, are not allowed to claim the benefits mentioned above, but the spouse of the later will be exempted.

[Wanderer]

It is important that a clear distinction is made between spouse/partner of an holder of ILR under UK immigration rules and the spouse/partner of a person with an EEA nationality/Permanent Resident card under EU law.

The spouse of the former, are not allowed to claim the benefits mentioned above, but the spouse of the later will be exempted.

Isn't that the OP though? I'm sure I am missing sth really blindingly obvious here!

[Obie]

Hi

Thanks , but im getting confused. Also my wife isn't from any of those countries she is from Pakistan.

I have spoken to a friend who suggests I revoke the application and make it again in my name (British citizen) and offer to pay the money back.

Im making the ILR application today and the first payment of child benefit was received on 30 October 2009 so i hope they can see that the moment we realised it was wrong we did something about it (1 week later).

I will send a letter with the ILR explaining this and to the Child benefits office asking them to revoke the application and take the money back, a copy of this letter will also be sent with the ILR.

Thanks

Ahmed, there is no need to do that. You are a British Citizen , and this makes all the difference. The nationality covers you, as you are a British citizen. The list refers to the nationality a Non-EEA national's family member has to hold for the the non-EEA national, in this case you Pakistani wife, to be exempted.

There is no need to pay the money back.

[John]

Can't help but think I'm missing something obvious here!

You are. You are reading the definition of Public Funds, as in para 6 of the Immigration Rules, and effectively ignoring the small paras. that follow, 6A, 6B and 6C. In particular, in this case, you are ignoring para 6B.

So does that mean for example, that my non-EEA gf who lives with me ie not a spouse and resides in the UK can claim these benefits

Yes, but also appreciate that this matter is also subject to benefit law. So she cannot submit a sole claim for Tax Credits, because she is living with you. That is, any claim for Tax Credits would need to be a joint claim between the two of you, and would of course take the income of you both into account.

f you can demonstrate that your partner has been living with you in a relationship akin/analogous to marriage , duly attested, then she will be an exempt person, where the above, specifically mentioned benefits are concerned. Even a student that is married to, or in durable relationship with, a Brit or an EEA national is exempted.

I am not convinced the restriction you suggest is actually in place. Could you kindly quote your source?

The non-EEA national would have to be lawfully present in the UK though, to qualify.

Why?

It is important that a clear distinction is made between spouse/partner of an holder of ILR under UK immigration rules and the spouse/partner of a person with an EEA nationality/Permanent Resident card under EU law.

The spouse of the former, are not allowed to claim the benefits mentioned above, but the spouse of the later will be exempted.

Well yes, because the holder of the ILR would be a non-EEA person.

By the way, the relevant legislation here is Statutory Instrument 636 of 2000, where The Schedule is very important.

Notice that these regulations are made under Section 115 of Immigration and Asylum Act 1999, which is named in para 6B of the Immigration Rules.

[ahmed786]

Hi

John, thanks for spending time looking into this. But I still think my wife is not allowed to make a sole claim for child benefit, as she is on a 2 year spouse visa on which states no recourse to public funds.

My understanding with what Im reading on the boards that she has violated her visa conditions and by writing to the child benefit office to revoke the appliation along with a letter with the SET (M) application is the only option we have and pray for the caseworker to understand our situation.

Where a partner of of EEA National (me being British) subject to such immigration controls claims for something like CB, it must be done in joint names and not just the person under immigration control (my wife) to be accepted otherwise it breaches the conditions of the visa?

[Obie]

Hi John,

Sorry,

I noticed that the Public fund Exemption link i provided was a wrong link.

I have now edited it to reflect the IMMIGRATION DIRECTORATE's INSTRUCTIONS.

I must be on the err of caution and say, as you have already emphasised, that Immigration rules differ from that of benefit rules.

Someone might be exempted from the immigration side of things, and yet unqualified from the Social Security side of thing.

This link stress the fact that the non-EEA family member who is claiming to be an exempt person, should be lawfully resident in the UK, to qualify.

Needless to say that the person claiming to be the unmarried partner of a British or EEA national, would have to be assessed under the immigration rules for people of that category.

Once it is established they are in a durable relationship, they will be exempted from the public fund requirements if they are claiming child benefit.

I hope i have explained myself correctly, to the best of my understanding.

I am open to any correction.

[John]

ahmed786, no, no, no!

As you are not yet convinced, take into account para 6B of the Immigration Rules :-

a person (P) shall not be regarded as having recourse to public funds if P is entitled to benefits specified under section 115 of the Immigration and Asylum Act 1999 by virtue of regulations made under sub-sections (3) and (4) of that section or section 42 of the Tax Credits Act 2002.

-: and in particular read "shall not be regarded as having recourse to public funds".

Yes this is technical but as you are British regulations made under section 115 of the Immigration and Asylum Act 1999, as linked to earlier by me, mean that there is no problem your wife claiming Child Benefit. Nor is it a problem her being a joint claimant with you for Tax Credits, because of regulations made under section 42 of the Tax Credits Act 2002.

Stop worrying!

[batleykhan]

This topic is getting very intersting.

I must admit I was not aware of what John and Obie have stated and agreed with what OP and Wanderer argued.

I know of a few people in OP sittuation who have been refused Tax and Child credit, but were allowed CB.

Its so confusing, I was wondering if we could get it in writting from DWP or HSMP whether the likes of OP is or is not allowed to claim above benefits

[John]

Links have already been posted in this topic that prove it is writing.

[batleykhan]

Ok then I take it ( as an example) a female british citizen marries a Pakistani. When he comes over starts working full time. His wife stops working as she has a child to look after. He earns about £15000 pa.

Is his wife ( or him) entitled to claim CB, CTC and WTC?

[John]

Of course, para 6B of the Immigration Rules is in play, with my emphasis :-

a person (P) shall not be regarded as having recourse to public funds if P is entitled to benefits specified under section 115 of the Immigration and Asylum Act 1999 by virtue of regulations made under sub-sections (3) and (4) of that section or section 42 of the Tax Credits Act 2002.

Child Benefit covered by regulations made "under section 115 of the Immigration and Asylum Act 1999 by virtue of regulations made under sub-sections (3) and (4) of that section", and the Tax Credits by regulations made under "section 42 of the Tax Credits Act 2002".

[batleykhan]

Thanks for that John.

I see where you are coming from now.

I can now advise those that have been wrongfully denied this " legal entitlement"

[John]

It is confusing and complicated. The starting point as regards Child Benefit and Tax Credits is that where one of the couple is British, and the other is a non-EEA with a time-limited visa with the "No recourse to Public Funds" restriction, nevertheless because of para 6B of the Immigration Rules, there is a total entitlement for one of the couple to submit a claim for Child Benefit, and for them jointly to submit a claim for Tax Credits ... dependent of course on family circumstances.

However where both of the couple have a time-limited visa with the "No recourse to Public Funds" restriction, such as Tier 1 and dependant thereof, then the starting point is that no CB or TC claims are permitted. But even that might not be the right conclusion, dependent upon nationality, or even where they have worked prior to coming to the UK. For example, New Zealand citizens are totally permitted to claim Child Benefit, thanks to a reciprocal Social Security agreement between the UK and NZ. (But the exemption does not cover Tax Credits, presumably because there are no Tax Credits in NZ, and therefore no reciprocity is possible.)

[Wanderer]

It is confusing and complicated. The starting point as regards Child Benefit and Tax Credits is that where one of the couple is British, and the other is a non-EEA with a time-limited visa with the "No recourse to Public Funds" restriction, nevertheless because of para 6B of the Immigration Rules, there is a total entitlement for one of the couple to submit a claim for Child Benefit, and for them jointly to submit a claim for Tax Credits ... dependent of course on family circumstances.

However where both of the couple have a time-limited visa with the "No recourse to Public Funds" restriction, such as Tier 1 and dependant thereof, then the starting point is that no CB or TC claims are permitted. But even that might not be the right conclusion, dependent upon nationality, or even where they have worked prior to coming to the UK. For example, New Zealand citizens are totally permitted to claim Child Benefit, thanks to a reciprocal Social Security agreement between the UK and NZ. (But the exemption does not cover Tax Credits, presumably because there are no Tax Credits in NZ, and therefore no reciprocity is possible.)

I think the issue I've had with getting my head round this is with CB specifically. As far as I remember CB is claimed in one name, traditionally the mother in my experience, and cannot (or could not) be claimed as a couple.

So, is it ok for the non-EEA person to singly claim CB then? I'm assuming here that it's still only possible to claim in one name, I'll be scouring the CB website next!

Reading the above it seems it's ok anyway, I'm not trying to be awkward, just it will bug me till I resolve it in my head!

[86ti]

The CB application form actually asks quite clearly about nationalities of both mother and partner, and also whether the applicant would be subject to immigration control. If the applicant is truthful here shouldn't HMRC be able to do the right thing?

[John]

I confirm that Child Benefit is claimed by one person only, whereas Tax Credits in respect of a couple living together must be claimed jointly.

[Wanderer]

I confirm that Child Benefit is claimed by one person only, whereas Tax Credits in respect of a couple living together must be claimed jointly.

So are we saying now a CB claim must be made by the settled person and NOT the person on a time limited visa? I think we need to clarify that for the benefit of the OP as well as others with a vested interest following this thread.