How long does the no recourse to public funds last?

[bototo]

Some time ago, in 2008, I made a few posts about applying for my mum to get ILR.

I was successful with the ILR largely due to the advice received on these boards. I have tried to reciprocate with threads like this one to help others in a similar position.

Now I need your help again and I am hoping I can count on you.

In short, at the time of applying for the ILR I signed a sponsorship declaration saying that I would take complete care of my mother. Our application was turned down and we went to IAT where the judge decided in our favour.

The intention all along was that I'd pick up the tab and in the intervening years we never applied for any benefits. But circumstances have changed now.

My mother's health has deteriorated considerably. She needs round the clock care and we've changed our family lives around, my wife has given up work and I have reduced my hours to take care of mother (rather than put her in a home). As a result our financial position is not as secure as it once was and I am not able to earn as much. Neither my wife nor I claim any benefits at the moment, but we'd like to apply for mother to get pension credits.

My question below is specific to pension credits (PC) and not attendance allowance or anything else.

Pension credits are not available to anyone who has "no recourse to public funds". My mother's ILR stamp makes no mention of "no recourse to public funds" but the sponsorship declaration I signed could be used to argue that she isn't entitled to any public funds such as PC. (The pension people are asking for a signed statement to say that she was "never sponsored")

Does that sponsorship declaration impose a lifelong commitment? Or does it lapse after some specified period?

I was reading a case here (in the reply by Keith Venables) which suggests that after two years the guarantor is released from that sponsorship undertaking. And the two years is from the date of my signing the form, not the date from when ILR was granted.

Is that true? Is there any rules/legislation/guidelines you can point me to in this regard?

Thanks very much in advance. I appreciate any help.

[Greenie]

the restrictions usually lasts 5 years once they have been resident in the UK for five years, or if it has been five years since the maintenance undertaking was signed, whichever is the later date, unless the sponsor dies.

See public funds guidance page 23

[bototo]

Thanks, Greenie, that's a very useful post and link (though disappointing as it hasn't been five years for us).

R/PC 1/09 suggests that where leave was granted on compassionate grounds and/or outside of the Immigration Rules, it becomes the responsibility of the Secretary of State to prove that a previously signed maintenance undertaking was a factor in the judge's decision to grant leave.

That, however, may or may not apply in our case. Despite the ILR happening as a result of an AIT decision I don't believe it was made "outside" of Immigration Rules, but I'm not sure what qualifies as "outside".

If it's not marked in the passport or on the ILR, how does one know if the leave they were granted precludes them from "recourse to public funds"? There was no accompanying letter from the Home Office. A few months after the IAT ruling, my mother's passport was sent to the HO and they sent it back with the ILR (and no covering letter to say anything about "no recourse to public funds").

And what's a "maintenance undertaking"? Is that different to the sponsorship that one would sign for a dependent relative application?

[vinny]

And what's a "maintenance undertaking"? Is that different to the sponsorship that one would sign for a dependent relative application?

They are the same.

[pazpatel]

And what's a "maintenance undertaking"? Is that different to the sponsorship that one would sign for a dependent relative application?

They are the same.

I am not very clues up on all of this I am afraid and I am definatley no expert but just trying to help out as much as possible with anyone on here as people have helped me during my VISA process..... So please do not take my word for anything.

I am under the immpresion that once you have ILR or a British Passport you have resourse to public funding, that was my understaning from a immigration solicitor I spoke to. Now he was not great and I actually ended up doing my wifes visa process my self with no soliitor or agent in India. But this is what he told me.

Also what is both of your status in the UK? Are you guys claiming any benefits. I am pretty sure the NHS do things like carer's allowances and things. NHS is apart of public fundng for visa I dot think (Someone correct me here if I am wrong).

Lets say my nan, she is 91, bless her best nan in the world in my opinion. Anyway she needs care round the clock and the NHS confirmed she needs care and where happy to provide someone who would come the house and spent 2-3 hours each morning with her, help her shower, feed her, give her medicene etc etc. But we as a traditional Indian family didnt want this so we declined it saying my mum would care for her as she only works 3 hours a day. The NHS said that si fine and automatically gave my mum £247 per week (I THINK) as a carers allowance. We didnt even ask for this, we did question it and they did say as youw ould be looking after her what we pay a carer you get.

Also you get working tax credits I think it is cold, if you work less hours and have kids etc you get tax credit so if you are not claiming might be worth looking into that.

There is nothing illegal here at all and nothing wrong in this, if you care for a elderly person and what you are saying is all true and no false information given no reason the governemnt wont help you. It is there duty.

We as a family had no idea about all this but all happened 18 months ago when my nan fell down the stairs broke her hip and leg and is now bed bound, we never as a family claimed a penny till now, and still now we do no claim what we are entitaled to but the things we do get has just happened automatically from the NHS it self.

Just make a note though, I am a british citizen and so are my parents in the class of "British Overseas Citizens"

[bototo]

pazpatel, you are right, if you have a British Passport then you get automatic entitlement. My question relates solely to Pension Credits for someone who's been sponsored.

Vinny, thanks for your input. That certainly clears up some confusion.

Section 115 of the I&A Act specifies who isn't eligible for benefits. But is it me or is there a major flaw / loophole in the wording of the The Social Security (Immigration and Asylum)
Consequential Amendments Regulations 2000 ? [link to pdf]

The Schedule, Part II lists who qualifies as an exception and is therefore not blocked from receiving these benefits.... "Persons not excluded under section 115 of the Immigration and Asylum Act from entitlement..."

#4 in there describes one exception as "4. A person who has been given leave to enter, or remain in, the United Kingdom by the Secretary of State upon an undertaking by another person or persons pursuant to the immigration rules within the meaning of the Immigration Act 1971, to be responsible for his maintenance and accommodation."

It would appear that, contrary to common sense, someone who has a sponsor responsible for his maintenance and accommodation is an exception and can claim benefits. Am I reading this incorrectly?

I would also be grateful if anyone has any comment on the other question: If it's not marked in the passport or on the ILR, how does one know if the leave they were granted precludes them from "recourse to public funds"? If there isn't a stamp saying "no recourse to public funds" can one safely conclude that at the time of granting ILR there was no intention to block eligibility for public funds?

[bototo]

Nobody?