Insolvency fund claim & effect on wife obtaining citizenship

[Rory4111]

My wife is a non-EU citizen with an EEA family permit obtained through the Surinder Singh route. We are aiming for citizenship after 5 years (we have about 2 years remaining before she can apply).

I understand that part of the task in obtaining citizenship for her is that I do not claim benefits, these can damage her application.

However, my job liquidated last week. It happened on the last day of the month, a few days before we were expecting to be paid. The owner of the company is refusing to pay us, and this is fully legal as it was a limited liability company. The company has next to no assets, so I will not get anything from the liquidation.

The only way to get the wages I earned is to claim from the insolvency fund (https://www.gov.uk/your-rights-if-your- ... wed-to-you). Will this damage my wife's ability to obtain British citizenship?

Many thanks.

[noajthan]

Nope. But crosscheck ofcourse.

fyi - as a returning SS-er and Brit you do not have to exercise treaty rights anymore; (case law of Eind).

And as a BC you are entitled to all benefits in your own right.

In the meantime your wife simply has to reside here (her activity is immaterial); oh & keep any absences from UK within limits.

[Rory4111]

Thanks for the response!

So just to be clear - you're saying me claiming benefits or using National Insurance now has no effect on my non-EU wife's (who is here on an EEA Family Permit) bid for British citizenship after 5 years residence?

[noajthan]

Thanks for the response!

So just to be clear - you're saying me claiming benefits or using National Insurance now has no effect on my non-EU wife's (who is here on an EEA Family Permit) bid for British citizenship after 5 years residence?

Yes, that is my understanding.
And you have the full force of case law of Eind to back you up.

[Rory4111]

Hello.

My wife is a non-EEA citizen who is living in the UK with me via the Surinder Singh route (I'm British). She currently has a 5 year EEA Family Permit and after 5 the years she hopes to apply for indefinite leave to remain and citizenship.

Unfortunately, the company I worked for liquidated recently. I have been told that if I claim benefits/National Insurance during my unemployment in the UK this will not affect my wife's bid for citizenship in the future.

However, since we are a married couple and we are living together, some benefits are given to a couple treated as a single unit. I am unsure about whether it is safe for me to apply for housing benefit, and whether this will be counted as my wife claiming benefits and endanger her future bid for citizenship.

Any help or advice you can give would be greatly appreciated!

Many thanks.

[noajthan]

Posts merged.
Multiple posts


See answers as above.

[Rory4111]

I see you have merged my post with a previous post of mine. However, my question here is slightly different. I know that if I claim any NI or benefits as an *individual*, this won't have a negative effect on my wife's claim for citizenship, but seeing as *housing benefit* for example may be claimed as a *couple*, could this endanger my wife's claim for citizenship after 5 years residence in the UK?

Many thanks.

[noajthan]

I see you have merged my post with a previous post of mine. However, my question here is slightly different. I know that if I claim any NI or benefits as an *individual*, this won't have a negative effect on my wife's claim for citizenship, but seeing as *housing benefit* for example may be claimed as a *couple*, could this endanger my wife's claim for citizenship after 5 years residence in the UK?

Many thanks.

It's same topic: naturalisation.

No, my understanding is a valid claim won't impact wife.

[Rory4111]

Thank you so much for your help. I need to be totally sure about these things and double check, so thank you for confirming that for me.

[Rory4111]

Hi,

I've just been on the Home Office Helpline and I've been told that for my wife to get permanent residence, i.e. EEA4, she cannot claim certain benefits, including Housing Benefit. Since we are married, I cannot claim it on my own, it has to be claimed as a couple.

I asked about indefinite leave to remain and they said that EEA citizens (which she is treated as since she has an EEA2) must apply for permanent residence. To apply for permanent residence, she needs to claim treaty rights in the UK and will have to avoid certain benefits, including Housing Benefit.

I also asked about case law of Eind, and they were not aware of what the significance of that is.

[noajthan]

Hi,

I've just been on the Home Office Helpline and I've been told that for my wife to get permanent residence, i.e. EEA4, she cannot claim certain benefits, including Housing Benefit. Since we are married, I cannot claim it on my own, it has to be claimed as a couple.

I asked about indefinite leave to remain and they said that EEA citizens (which she is treated as since she has an EEA2) must apply for permanent residence. To apply for permanent residence, she needs to claim treaty rights in the UK and will have to avoid certain benefits, including Housing Benefit.

I also asked about case law of Eind, and they were not aware of what the significance of that is.

Your wife does not have to exercise treaty rights as you are her 'proxy EEA' sponsor.
Your wife doesn't have to do anything in UK except remain married to you & reside in UK.

If wife does undertake any economic activity then it is immaterial to her acquiring PR.

And you don't have to exercise treaty rights in UK as you have served your time under SS route in Europe.
If helpline are unaware of relevant case law then that should set alarm bells ringing.

[Rory4111]

I hope that you are right, but that's not the way they described it at the Home Office. Can you point me to any official literature that proves what you are saying? Because the Home Office says that my wife, on an EEA family permit, needs to exercise treaty rights (including avoiding housing benefit) in the UK for five years in order to be eligible for permanent residence.

[noajthan]

I hope that you are right, but that's not the way they described it at the Home Office. Can you point me to any official literature that proves what you are saying? Because the Home Office says that my wife, on an EEA family permit, needs to exercise treaty rights (including avoiding housing benefit) in the UK for five years in order to be eligible for permanent residence.

HO guidance here:
https://www.gov.uk/government/uploads/s ... w_v2_0.pdf

which refers to Eind case here:
http://eur-lex.europa.eu/legal-content/ ... 2005CJ0291

More HO guidance here:
https://www.gov.uk/government/uploads/s ... uto,26,522
- see page 38 for non-EEA family members in SS cases

A FOI answer on SS returnees here:
https://www.whatdotheyknow.com/request/ ... 023660.pdf

Takeaway: in general. under EU law, it is the EEA sponsor who exercises treaty rights not the dependent.
And, thanks to Eind, BC returnees to Blighty don't have to do treaty rights.

As a BC you are perfectly to entitled to claim benefits, and if you have to claim a certain benefit in joint names, as a married couple, then so be it.

[noajthan]

An interesting take on the HO helpline:
https://www.freemovement.org.uk/immigra ... pectation/

[Rory4111]

Thank you very much for your detailed answer. This information looks very promising. However, there is still one thing that I don't quite understand.

All of the evidence you have pointed towards refers to the impact of the Eind judgement meaning the BC does not have to be in employment.

For example,
(from http://eur-lex.europa.eu/legal-content/ ... 2005CJ0291)

Obligation for the worker’s Member State of origin to grant a right of residence to the family member - Whether there is such an obligation where the worker does not carry on any effective and genuine activities.

(from https://www.gov.uk/government/uploads/s ... uto,26,522)

British citizens do not need to remain a qualified person when they return to the UK.

(from https://www.whatdotheyknow.com/request/ ... 023660.pdf)

where the UK national has been exercising Treaty rights as a worker or self-employed person in another EEA member state, the right of family members who resided with them in that member state to accompany them to the UK under regulation 9 is not reliant on the UK national being economically active in the UK on their return.

So here is my confusion - not being economically active does not seem to be the same as claiming housing benefit or other benefits.

[noajthan]

Thank you very much for your detailed answer. This information looks very promising. However, there is still one thing that I don't quite understand.

All of the evidence you have pointed towards refers to the impact of the Eind judgement meaning the BC does not have to be in employment.

For example,
(from http://eur-lex.europa.eu/legal-content/ ... 2005CJ0291)

Obligation for the worker’s Member State of origin to grant a right of residence to the family member - Whether there is such an obligation where the worker does not carry on any effective and genuine activities.

(from https://www.gov.uk/government/uploads/s ... uto,26,522)

British citizens do not need to remain a qualified person when they return to the UK.

(from https://www.whatdotheyknow.com/request/ ... 023660.pdf)

where the UK national has been exercising Treaty rights as a worker or self-employed person in another EEA member state, the right of family members who resided with them in that member state to accompany them to the UK under regulation 9 is not reliant on the UK national being economically active in the UK on their return.

So here is my confusion - not being economically active does not seem to be the same as claiming housing benefit or other benefits.

My understanding is that you can claim in your own right (after all you are British).

If you do have to apply for something in joint names just because that is the system for that particular benefit then it is permitted;
- that concession is even allowed to those persons on the UK immigration route who specifically have "no recourse to public funds". Ie joint applications do not breach that requirement in those limited and special circumstances.

Similar questions here:
http://www.immigrationboards.com/eea-ro ... 83069.html

[Rory4111]

Hi, thank you for your reply.

I'm going to ask one more thing, because you've been so great in helping me understand so far, the one thing that would clear it up for me:

I've had a look at the links you provided detailing the Eind case law and its implication that I, as a BC am not required to be economically active. Do you (or anyone else) also know of any official literature or examples that prove your understanding of the rules on benefits in particular:

you can claim in your own right

If you do have to apply for something in joint names just because that is the system for that particular benefit then it is permitted;

and

that concession is even allowed to those persons on the UK immigration route who specifically have "no recourse to public funds". Ie joint applications do not breach that requirement in those limited and special circumstances.

[noajthan]

Hi, thank you for your reply.

I'm going to ask one more thing, because you've been so great in helping me understand so far, the one thing that would clear it up for me:

I've had a look at the links you provided detailing the Eind case law and its implication that I, as a BC am not required to be economically active. Do you (or anyone else) also know of any official literature or examples that prove your understanding of the rules on benefits in particular:

you can claim in your own right

If you do have to apply for something in joint names just because that is the system for that particular benefit then it is permitted;

and

that concession is even allowed to those persons on the UK immigration route who specifically have "no recourse to public funds". Ie joint applications do not breach that requirement in those limited and special circumstances.

It is self-evident a Britisgh citizen has rights and responsibilities including rights to claim public funds/benefits (as per the various rules).

For non-EEA family members, start here:
http://www.immigrationboards.com/claimi ... 11606.html

[Rory4111]

Thanks. I understand that I am able to claim any benefit as an individual, but since housing benefit is claimed as a couple it's still not clear if I can do that.

The closest I've found is this document:

https://www.gov.uk/government/uploads/s ... _v13.0.pdf

On page 18 it states:

A person subject to immigration control is not considered as accessing public funds if it is
their partner who is receiving the funds they are entitled to.
Child and working tax credits are claimed jointly by couples. If only one member of a couple is subject to immigration control, then for most tax credits purposes, neither are treated as being subject to immigration control.

I couldn't find the same for Housing Benefit.

But I'm not even sure if my wife is subject to immigration control at all. Am I right in thinking that if you have any restrictions (i.e. time) on your living in the UK, then you are under immigration control?

She is on an EEA2 residence card - which has the time limit of 5 years - which implies that yes, she is under immigration control. However, I have read that this card does not give you the right to stay - rather, it just confirms your right to stay, which you have automatically once you are married to an EU national. This implies that she is not under immigration control.

I'm more confused than when I started. All of these documents are so vague, I feel I need a law degree to ever understand what our rights are.

[Rory4111]

https://www.gov.uk/government/uploads/s ... _v13.0.pdf

In the same document, on page 61 of 62, it gives some contact information:

This page explains who to contact for more help with a specific case on public funds. If you have read the relevant Immigration Rules and this guidance and still need more help with this category, you must first ask your senior caseworker or line manager. If they cannot answer your question, you may email administrative operational policy team (see related link) for guidance on the policy

But alas, there is no related link.

[noajthan]

https://www.gov.uk/government/uploads/s ... _v13.0.pdf

In the same document, on page 61 of 62, it gives some contact information:

This page explains who to contact for more help with a specific case on public funds. If you have read the relevant Immigration Rules and this guidance and still need more help with this category, you must first ask your senior caseworker or line manager. If they cannot answer your question, you may email administrative operational policy team (see related link) for guidance on the policy

But alas, there is no related link.

Because it is internal guidance and the support team is for caseworkers not the general public!

[Rory4111]

Is there anybody who could recommend a lawyer who specialises in this area?

[noajthan]

Is there anybody who could recommend a lawyer who specialises in this area?

'Recommendations' cannot be verified.

Suggest search via Law Society &/or OISC websites.

[noajthan]

If this is still of concern...

Note the section for Surinder Singh applicants in the current PR form:

Section 16 - Public funds (state benefits)
This section asks for information about any public funds or state benefits (also known as ‘social assistance’) you are claiming, or have claimed, or that your sponsor is claiming or has claimed since you have lived in the UK.

Note: you do not have to complete this if you’re the family member of a British citizen and applying in the ‘Surinder Singh’ category

Viva free movement!