Changes to Public Funds provisions ... from 31 March 2009

[John]

The changes to the Immigration Rules, published yesterday, deal mostly with the new Tier 4 (student visas) but also have other content. In particular they contain changes relevant to the Public Funds provisions.

Let's analyse the changes, and apologies in advance if this is going to get a bit technical.

Para 6A of the Immigration Rules currently reads :-

6A. For the purpose of these Rules, a person is not to be regarded as having (or potentially having) recourse to public funds merely because he is (or will be) reliant in whole or in part on public funds provided to his sponsor, unless, as a result of his presence in the United Kingdom, the sponsor is (or would be) entitled to increased or additional public funds.

-: and that is being changed to :-

6A. for the purpose of these rules, a person (P) is not to be regarded as having (or potentially having) recourse to public funds merely because P is (or will be) reliant in whole or in part on public funds provided to P’s sponsor unless, as a result of P’s presence in the United Kingdom, the sponsor is (or would be) entitled to increased or additional public funds (save where such entitlement to increased or additional public funds is by virtue of P and the sponsor’s joint entitlement to benefits under the regulations referred to in paragraph 6B).

So we are introduced to P, who is the visa applicant. Their sponsor is also mentioned. The main difference is that there is now a part in brackets .... "(save where such entitlement to increased or additional public funds is by virtue of P and the sponsor’s joint entitlement to benefits under the regulations referred to in paragraph 6B)" .... and actually I think that is mere confirmation of the existing situation, as regards a joint claim to Tax Credits. The existing para 6B effectively takes precedence over the existing para 6A .... and in the new para 6A we get confirmation that is the case.

So the changes to para 6A are nothing to be concerned about. Let's turn to para 6B. The existing version reads :-

6B. A person shall not be regarded as having recourse to public funds if he is a person who is not excluded from specified benefits 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 from 31.03.09 that is changed to :-

6B. subject to paragraph 6C, 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.

-: to which I say, yes we need to consider the new para 6C, but apart from that the only other change is that again P is mentioned.

So we need to look at the new para 6C. This does not exist in the existing Immigration Rules, but as from 31.03.09 it reads :-

6C. a person (P) making an application from outside the United Kingdom will be regarded as having recourse to public funds where P relies upon the future entitlement to any public funds that would be payable to P or to P’s sponsor as a result of P’s presence in the United Kingdom, (including those benefits to which P or the sponsor would be entitled as a result of P’s presence in the United Kingdom under the regulations referred to in to paragraph 6B).

The first thing to note is that para 6C only affects those "making an application from outside the United Kingdom". So let's just stop there for a moment. Because of what we have already concluded about the new 6A and 6B, for those making visa applications in the UK there is really no difference to the current situation. That is, P is introduced to us, and there is a bit of confirmation about something we knew anyway, but in reality for those making applications in the UK there is no difference at all. Good news!

So returning to para 6C, and only for those applying outside the UK, we are faced with working out what "where P relies upon the future entitlement" actually means. I think it comes down to this. Because of the way the current 6B is worded, it could currently be argued by the applicant that any benefit claims OK because of 6B can be taken into account in working out whether the financial test is passed, or not.

Example .... say the application is for a spouse visa .... and if that is granted .... when the successful applicant arrives in the UK there will be an increased ability to claim Tax Credits .... and the applicant needs to take that increased income into account in order to pass the financial test, then now because of the new 6C, which is mentioned at the beginning of 6B, such extra Tax Credits cannot be taken into account in working out whether the financial test is passed.

The conclusion is thus that where the sponsor has low income then it might be even more difficult than before to pass the financial test.

However if the visa granted, and then the person comes to the UK, there is nothing to stop that enhanced claim for Tax Credits to be made. That is, I think the extent of 6C is merely in determining whether the visa should be granted, and thereafter it effectively has no effect. That is, it does not stop that Tax Credits claim being made; it merely stops such enhanced benefit being taken into account is assessing the success or not of the visa application.

As said above, this is very technical, and if anyone else has any comments I shall be delighted to read them.

[vitalij]

Dear all,

Please help. Me,my wife and son have no recourse to public funds on our visas. We came to this country on HSMP visa from Russia in 2005.

Without knowing that WTC and CTC are benefits, we claimed them in 2005. Last year when we realised that repaid all money back to HMRC.

We want to apply for ILR this year, but do not know what to do. some solicitors say that we have to diclose the above to the HM, but some recommend not to do it.

Will the disclosure be enough to get ILR without any hussle.

We have really good immigration history, except for the above; good earnings now and good positions.

Please advise how this all can affect our application and which affect it will have on naturalisation next year.

[John]

I really don't think you will have a problem, based upon what you have posted. My reason for saying that is that back in 2005 Tax Credits were not within the definition of Public Funds, so there was no problem you claiming the Tax Credits then. Also, because at a later date the definition of Public Funds was altered to include Tax Credits, HMRC did nothing to identify those affected, and in any case you have repaid the money.

When completing the form to obtain your ILRs you will of course complete it honestly and accurately. Note that the Public Funds question is asked in the present tense ... "Are you claiming ... ", not .... are you or have you ever claimed? Accordingly the truthful and honest answer to the question asked on the form is "No".

There really is no need to mention the former claim when applying for ILR. What should have happened, when Tax Credits were introduced, was for the Public Funds definition to be altered but UKBA did not get round to doing that for another couple of years. So you did absolutely nothing wrong when you claimed, and indeed at that moment in time, HMRC did nothing wrong in paying you the money.

[vitalij]

John,


Thanks a lot for your help! Exaclty the same answer I have received from the best London solicitors.

Thanks a lot again!



Vitalij

[vitalij]

Dear John,

Please advise from what time WTC and CTC has become a benefit. I could not fund this information on the internet.

Thanks a lot!

Rgds,
Vitalij

[John]

That does actually take some finding! But the answer is in HC346, which amended the Immigration Rules with effect from 15.03.05.

As Tax Credits were introduced on 06.04.03, that is nearly 2 years after the introduction. Not only that, they actually get round to deleting the reference to "Working Families Tax Credit (a totally different benefit) which ceased to be paid on 05.04.03.

[OmarA]

Never mind...

[bonnie]

John

can you give us some advice please for a friend of mine.

i have a good friend who is a british citizen and lived in the uk all his life.his now wife is in the uk on a two year settlement visa (issued in BKK),they also have a 10 month old baby with was born in the uk,and due to unforeseen circumstances,he has had to go to the local authority to claim emergency housing (for two weeks)while the local authority found them temporary housing.they now have a two bed house,and are on the locata,now bidding for properties.

Now he is claiming=

Income based jobseeker's allowance(single mans allowance)

Full housing benefit

Full council tax benefit

child tax credit (in joint names)

child benefit

also has claimed social fund payment(for essentials for the house)

also claimed sure start maternity grant for newborn baby

Now he is looking for work,and has not had any luck as yet(been looking for nine months now)very hard to find work in the current times.

Now the question is=

if his situation does not change by next year (april)when his wife applies for ILR can you see any problems in his wife gaining ILR,because we have just read the guide lines for ECOs,and it clearly guides them,that if the sponsor of a person seeking leave is claiming income based jobseeker,and that was to increase due to the dependant gaining ILR,THEN the application would have to be refused under 6A of the immigration rule ,(or some rule)is that correct?

And also every form that he has had to fill out at the local authority and benefits office ,he has had to include his wife's name on the forms and they no full well that she has no recourse to public fund endorsed on her visa.
They have really been dealt a couple of sh"£$ty hands since wife arrived in Th uk.
so can you see problems ahead for this couple,

thanks in advance.

[John]

Bonnie, none of that is a problem. The allocation of a Council House is fine, given that they would allocate a 2-bedroom house to a single parent with one child, so although they are a married couple with one child, you will see that there has not been an increase in the accommodation provided.

Everything else is fine. Hopefully he and/or his wife will find work soon.

[v-confused]

Hi John,

Hoping you can give me a little guidance and advice please.

I am in the process of applying for an extension using form FLRM as an unmarried partner. My partner has indefinite leave to remain.

We currently claim
-child tax credit (joint - paid to my partner)
-working tax credit (joint - paid to me)
-child benefit (single - paid to my partner)

According to the form, does this constitute claiming public funds for any of us? And if so, would I need to answer yes to the question and tick the relavant boxes for just me, just my partner or both of us?

From the immigration rules, guidance to public funds and some of your very detailed replies to other posts. I am on the fence but slightly inclined to the answer bieng "No" to this question but am not sure as am a little confused with some of the wording. I would like to be absolutely sure.

Thank you,
Tom

[plaistow2005]

http://www.immigrationboards.com/viewto ... 241#462241

[vinny]

See also GS (public funds - tax credits) India [2010] UKUT 419 (IAC).

[vertue]

Hi should we stop claiming child benefit and child tax credit before apply ilr for them?

what will happying if we don't stop claming the above benefit?

any reply is highly appreciated.
vertue

[Greenie]

Hi should we stop claiming child benefit and child tax credit before apply ilr for them?

what will happying if we don't stop claming the above benefit?

any reply is highly appreciated.
vertue

it depends on whether you are entitled to claim these benefits. what are your circumstances - e.g. nationality, immigration status?

[vertue]

hi thanks for your reply.
i'm british with i've two british kids and rest of them are on 2 years sponsor visa. which ends in december.

i'm self employed. i've recently starts claiming working child tax credit from the help of this forum. i am claiming child benefit for all our kids under my name. we claimed ctc on joint name. my only concern is should we carry on claiming or should we stop before apply to ilr. ticking yes to claim in the ilr form will affect my family visas. your help is required.

thanking you in advance.

[Greenie]

hi thanks for your reply.
i'm british with i've two british kids and rest of them are on 2 years sponsor visa. which ends in december.

i'm self employed. i've recently starts claiming working child tax credit from the help of this forum. i am claiming child benefit for all our kids under my name. we claimed ctc on joint name. my only concern is should we carry on claiming or should we stop before apply to ilr. ticking yes to claim in the ilr form will affect my family visas. your help is required.

thanking you in advance.

you are fine to claim these benefits as you are British - this is explained in this thread. You are correct to be claimig the tax credits in joint names.

[Shazzy001]

Hi All,

I am a new memebr on this board and would be thankful if anyone can answer my querey.
I got ILR with my wife and two sons in Feb this year. My famil just joined me in UK last year in December. Now I have some problems with my current job and would be jobless very soon. I am looking for a new job but due to difficult market situation still unsuccessful. I am just wondering if in worst case I am not able to find any job then can I apply for any benefits?
And WOuld this have any impact on my Nationality application next year? Also my two sons aged 6 and 4 can apply for nationality next year with me?

[John]

I am just wondering if in worst case I am not able to find any job then can I apply for any benefits?
And WOuld this have any impact on my Nationality application next year?

You can apply for any benefits that your circumstances dictate you are entitled to. In particular, since getting ILR, have claims for Child Benefit and, if relevant, Tax Credits?

Any (legal) benefit claims will have no impact applications for British Citizenship.

Also my two sons aged 6 and 4 can apply for nationality next year with me?

Indeed yes! When you apply for your Naturalisation, you can also submit a form MN1 for each of those two sons, the applications being under section 3(1).

As regards your wife, can you explain how she got ILR in February, if she came to the UK last December? Or when you said "My famil just joined me in UK last year in December.", did you just mean your children? If the answer to that is yes, when did your wife move to the UK?

[Shazzy001]

I was given ILR on HSMP and my family got ILR as my dependants. I was married to my wife in 2004 in Pakistan. She joined me to UK in December 2011 first time as dependant.

I am applying for Naturalisation in Feb 2013. WHo can apply for BC with me at that time?

[John]

After you have had your ILR for one year you can apply for Naturalisation, and applications for Registration for the two children can be made at the same time.

Your wife? Based upon current law and practice, and assuming by then you are a British Citizen, she can apply for Naturalisation from the third anniversary of her arriving in the UK in December 2011. So from sometime in December 2014.

Except, prior to the arrival in December 2011, did she spend any time at all in the UK, even as a visitor? If yes, please give details of the time in the UK prior to December 2011.

[Shazzy001]

Thank you very much John.

Can you please also give me some information that what benefits can I apply in worst case (If I would not be able to find any employment)?

[John]

Your starting point is surely JSA ..... job-seeker's allowance, and assuming you have paid enough NI contributions that JSA would be contribution-based, at least for 6 months.

As you have children, Child Benefit and Tax Credits. Are you in rented property? If so possible Housing Benefit, and in any case possible Council Tax Benefit.

Exact amounts payable, if any, would depend upon personal circumstances.

As regards JSA, presumably you are signing on at your local Job Centre+?

[Shazzy001]

Many thanks for your quick reply. As I am on ILR status and so do my wife and children. Can I now claim child tax credit as I am working full time?

Shaz

[John]

No problem claiming Child Benefit, irrespective of amount of earnings.

But as regards Tax Credits, that depends upon the amount of the family income. You mention two children, and with that number the cut-off point is, as the HMRC website says, there is no entitlement if "you have two children, and your annual income is more than around £32,200".

Even if not entitled now, you might then reconsider the matter if you do become unemployed.

[Shazzy001]

I am on 31k right now. My question is if I am eligible to apply for tax credit and child benefits on Indefinite leave to remain. As someone told me that I can only apply for these if my children are British citizens? And as they are also on ILR so I can not apply for child tax credit and child benefits..... Is that true?

Shaz