Made a BIg Mistake cklaiming Child Benefit

[Obie]

I am sure there are some Job Centre plus who are unaware of the exception made under Section 115 Subsection 3 & 4 of the Immigration Act 1999. Unfortunately, the exemption does not state who it applies to, and under what circumstance it applies to them, and the type of benefits that will not be considered as public funds in these circumstance.

People on a 2 years Spousal visa, whose partner or child is a British or EEA national, could be denied the right to Child Benefit on the grounds that they are prohibited under Section 115 subsection 1 to public fund, or under Section 3(1)(C) (ii) of the immigration act 1971..

Even Direct Gov has stated that people subject to immigration control are prohibited from child benefit, without stating the exemption cases.

It would be vital for people in these circumstance to provide proof that they are a partner of an EEA or British National or EEA child and the list of benefit that the Secretary of state has used his discretion to allow them to claim,due to them meeting the prescribed conditions.

[John]

Even Direct Gov has stated that people subject to immigration control are prohibited from child benefit, without stating the exemption cases.

I was concerned to read that. However the link that you provided says something rather different, including :-

You may not be able to get Child Benefit if you're subject to 'immigration control'.

-: so use of the conditional word "may". Also :-

Sometimes if you’re subject to immigration control you might still be able to claim Child Benefit, for example if you're from a country with which the UK has a social security agreement that covers Child Benefit.

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.

No, not saying that at all. The British Citizen spouse can claim ..... because they are British .... and their non-EEA spouse can claim, because the regulations made under Section 115, as previously described.

[Wanderer]

Fair enough John but for me there's enough grey in this for me to suggest the OP does repay the CB in behalf of his spouse and claim in his own name.

There's nothing lost and while I agree there evidence is there for a point to be made, for me it's just not worth it.

[John]

Fair enough John but for me there's enough grey in this for me

I beg to differ. There is absolutely no grey area here at all. Instead there is legislation that is there in black and white.

Just because you personally have failed to understand the legislation does not make it a grey area .... except in your grey matter!

[Obie]

John i understand the fact that "May not" used in the context of my link, makes a lot of difference, however, the example on last paragraph, which states people subjected to immigration controls, from countries with reciprocal agreement with the UK, will qualify, made me think otherwise.

I am not very good at semantics, but i was compelled to believe and conclude that the "May" refers to those last category of people.

The statement on this links helps reinforce my belief aswell.

It would help if Direct Gov explained things in an explicit manner, rather than living this level of obscurity which is open to different interpretation.

Nevertheless, i don't depend on Direct Gov to tell me my entitlement, or to explain a clearly stated legislation to me.

For the benefit of people, who find themselves in a complete state of confusion, i thought they should have explained things better, and try and be a bit more accurate in their guidance.

To Wanderer- Can you provide an evidence that the OP is doing something wrong, or if the matter was taken to court, the OP would loose.

The HO has clearly given a Scenerio where refusal of application for non-EEA spouse in receipt of benefit, will be inappropriate, and you are still adamant that the HO is wrong.

This is not my opinion or John's. This is the rules. Like it or not, it is the rules.

[John]

As I have said before in this topic, this subject is "confusing and complicated.".

Personally I find this Home Office document to be the most helpful. But you only have to look at page 6 of 7, and all those ticks and crosses, to realise just how complicated it is.

But even that document does not attempt to cover absolutely every point. For example, the Social Security reciprocal agreement with Canada covers not just Canadian citizens who have paid Canadian social security contributions, but also anyone who has lived and worked in Canada and thus paid Canadian social security contributions. This means that say an Indian in the UK on Tier 1, who has worked in Canada prior to coming to the UK, is allowed to claim Child Benefit, assuming of course they have a child.

[Obie]

Excellent stuff John. Great link.

However, i could not help ignoring the fact that Tax Credits were crossed out for persons with EU family member.

It nevertheless help eliminate the OP's fear.

[John]

Obie I find the crosses that you mention at worse incorrect, and at best misleading. After all, as it says on page 4 of 7 :-

Claims for child and working tax credits are assessed jointly. If you are living with a spouse or partner who is allowed to claim tax credits, your name may be included in the claim.

-: and as the EEA citizen is allowed to claim, so is their non-EEA family member, as part of a joint claim.

All I can think is that if the non-EEA person separates from their EEA family member, then the non-EEA person is not allowed to submit a sole claim for Tax Credits. So a little bit of justification for the crosses, but could be very misleading for the majority.

[pete7175]

Hi, I was reading this subject for my future..
I do not want to change or cut the subject but may i ask a question at this point.
According to OP's non EU spouse has received the CB already, can t we think that she has right to claim CB as non EU citizen.? I don t think that they will give benefits before researching or am i wrong.
Thanks for your useful information.

[John]

pete7175, I think your question is effectively, do HMRC who administer Child Benefit, and indeed Tax Credits, have great expertise about immigration-related matters?

I would love to love that they are experts and always get it right. However the truth is that whilst, in my opinion they are getting better, the fact is that they are nowhere near perfect as regards immigration-related matters.

However is this case they did get it right, and the person under discussion here is fully entitled to claim Child Benefit, and also be a joint claimant for Tax Credits.

[Obie]

I suspect i might need some clarification on Tax credits.

Nearly all families in the UK will be entitled to Child tax credit, correct, about 9 in 10 to be precise, and if you earn below 55K annually.

You don't need to make a joint claim for child tax credit, although you will, for Working tax credit if you live with a partner, and choose to include him or her in a claim.

A mother claiming to live in the UK, say for example, under Chen Ruling, will be allowed to claim child tax credit, without it being considered as public fund.

I have thought about the link you sent John, and i was thinking that the UKBA was trying to make a point, by crossing Family tax Credit and Child tax credit for EU family members of "Immigration Control Subject".

Perhaps, they are trying to say, that being a family member of an EEA national on its own, does not entitle you make an independent claim, as your partner will need to be entitled as well for you to qualify.

I suppose they are trying to prevent a situation, where a non-EEA family member refuses to add the spouse to her claim, as they would exceed the threshold, and make an independent claim, with the hope of using the exemption under the immigration rules.

Does this make sense?

OP i apologise for hijacking you thread.

Also, is it the case that people who earn above 10K annually are not entitled to working tax credit.

[John]

You don't need to make a joint claim for child tax credit, although you will, for Working tax credit if you live with a partner, and choose to include him or her in a claim.

No, that is incorrect. All claims for Tax Credits, in respect of a couple living together, must be made jointly.

Indeed there is just the one claim form, and it covers, as relevant, both Working Tax Credit and Child Tax Credit.

A joint claim always being necessary for a couple living together, most of the rest of the post above falls out.

[Obie]

Thanks for the clarification John. As always, you are a star.

[immig.inf]

This discussion appears to be closed and I think most of my questions have been answered. Me and my family are legal temporary residents of an EEA country and I pay social security here. I have been issued a European social security card as well. Recently I have got highly skilled working visa along with my dependents. Can I claim child benefits for my kids and does it fall under public funds? If it does I am not going to claim these. Many thanks..

[Casapot]

Thanks for the clarification John. As always, you are a star.

I second that..Yr A Star! having read through this whole thread as it has relevance to a benefit query i had... reading John's information here he certainly knows his stuff...

[hamid84]

Very old post but i have comments to make..

Im ILR Holder but wife ( Partner ) does not have any setteled status and infact our COA application is pending. Her FLR(S) has been pending for over a year but im getting CTC/WTC, housing benefits and CB under my name without any problem.

[Elena_G]

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

How did the story finish? Did your wife get ILR without any problems or you had to give money back? I am in the simular situation now . Thank you

[vasey1]

Hi there,

I may not be in the correct forum.

My wife is here on a Spouse visa from Pakistan which runs out in Feb 2012. I am a British citizen.

She will be applying for ILR within 28 days of her expiry date. Can somebody assist me in answering the following questions.

1)- We had a child born here in Feb- Will he be required to go on the application.

2) How much money will be needed in my bank accounts to show adequate finances.

3) How many Bank statements/ Payslips will be required

4) We are in receipt of Child Benefit/Child Tax credit for our baby and I was the main applicant.

5) We were given the Sure start paternity grant of £500.00

6) We were also given the health in pregnancy grant.

7) Will the above affect the application as recourse to public funds

8 ) She will be attending an ESOL fastrack course which only lasts 4 days but is provided by an accredied provider

9) When shall I book her to go on this course at the earliest.

[John]

Using your numbering :-

1. No, because your child is British, so clearly does not require a visa.
2. There is no such requirement. Indeed for the sort of ILR application your wife will be making, caseworkers are under instructions not to refuse an application merely because of a financial issue.
3. Look at the form SET(M).
4. Not a problem
5. Not a problem
6. Not a problem
7. No!
8. As long as she gets a completion certificate from that course, not a problem.
9. Whenever you like.