Child benefit mistake and ILR

durbr · Post by **durbr** » Wed Dec 12, 2007 1:39 am

Hi,

My wife has been on work permit for 5 years and we want to apply for ILR. We are from two different countries (both non-British). Three years ago when our first son was born, we received some application forms for Child Benefit. We were not sure whether were eligible so we called the HM Revenue & Customs (HMRC). They advised us to apply for Child Benefit and they would consider our application. We applied and they started paying us child beneift in 2004. We were very naive about "recourse to public fund" and we thought HM Revenue & Customs (HMRC) knew better. Anyway, now that we want to apply for ILR,according to the application form, we have realised that may be we were not eligible. Please advise what do you think? How should we proceed? We are willing to return all the money plus interest plus any penalty. Any comment will be highly appreciated!

SYH · Post by **SYH** » Wed Dec 12, 2007 8:58 am

Some benefits in the past were NOT considered recourse to public funds so you have to go research the issue to determine if that was the case for child beneifts in 2004. I doubt it but I suggest you start there.

VictoriaS · Post by **VictoriaS** » Wed Dec 12, 2007 9:21 am

I suggest that you contact the DWP and discuss a repayment schedule. If this is in place when you apply for ILR it will look much better for you.

Victoria

durbr · Post by **durbr** » Wed Dec 12, 2007 9:29 am

Hi again,

thanks for helpful advice. We are going to talk to the relevent department and try to pay lumpsum before our application.

VictoriaS · Post by **VictoriaS** » Wed Dec 12, 2007 9:41 am

Don't worry, it is unlikely to come to that.

Victoria

durbr · Post by **durbr** » Wed Dec 12, 2007 4:36 pm

Hello again,

I have contacted Child Benefit department. The person that I talked to said that if we are receiving Child Benefits than we are eligible. However, I told him about all the documents that I found on the web about Child Benefits. I asked him to suspend our child benefits until I talk to the relevent person. He will ask somebody from the Child Benefit department to contact us to discuss it in detail.
Any comments/suggestions are highly appreciated.

VictoriaS · Post by **VictoriaS** » Wed Dec 12, 2007 11:35 pm

The important thing os to get the advice in writing if you can. Get in writing that you have asked for the benefits to have stopped. This way, when you apply for ILR, they will see this was not your fault. I am not sure about paying the money back but the important thing is that the Home Office need to be clear that this was not your fault.

Victoria

SYH · Post by **SYH** » Wed Dec 12, 2007 11:39 pm

reposted correctly below

tvt · Post by **tvt** » Wed Dec 12, 2007 11:40 pm

The question in the ILR form is "Are you receiving any public funds?". This IMHV is a simple question - it does not ask you whether you were receiving these funds some time in the past. All it asks is whether you are receiving any of these funds NOW. So if you stop getting the CB payments even a month before you submit your ILR application, you can legitimately answer "No" to that question.

There is also the practical question of HO-BIA finding out that you were receiving these payments in the past. This could come from two sources:

1. your bank statements which you take to the appointment / submit with your application showing CB credits (these can easily be spotted). To avoid the fuss, I suggest you do not send these bank statements but unstead send other evidence (such as salary slips, saving accounts) of your ability to maintain yourself and your dependents without recourse to public funds.

2. HMRC notifying BIA about your recourse to public funds. This is less likely to happen but still a risk.

SYH · Post by **SYH** » Wed Dec 12, 2007 11:40 pm

durbr wrote:Hello again,

I have contacted Child Benefit department. The person that I talked to said that if we are receiving Child Benefits than we are eligible. However, I
Any comments/suggestions are highly appreciated.

Yes but eligible doesn't mean entitled or qualified
You fit the critieria of people who receive this benefit because you are in need
However you shouldn't avail yourself of the benefit because that was the condition you were given to enter the country which disqualfied you from getting it in the first place
You see the difference?
So when they keep saying it's ok. They are only looking at it from their point of view.
Its awful how this stuff goes. You get agencies who are misinformed letting people get benefits when they shouldn't on one hand and then there are agencies who prevent you getting benefits when you are entitled once you reach ILR status.

VictoriaS · Post by **VictoriaS** » Wed Dec 12, 2007 11:42 pm

If you say no then they will find out that payments were made and they will refused because they will assume you are lying. You have done nothing wrong, so be up front about it.

Victoria

tvt · Post by **tvt** » Wed Dec 12, 2007 11:45 pm

If he answers "Yes" then his application will automatically fall to be refused - no discretion here.

VictoriaS · Post by **VictoriaS** » Wed Dec 12, 2007 11:56 pm

He will answer 'no', explain, and with evidence to support the fact that he was misadvised and is now making repayments, he should be approved.

Victoria

tvt · Post by **tvt** » Thu Dec 13, 2007 12:05 am

Excerpt from BIA's internal guidance on Public Funds which can be accessed here (page 2):

http://www.ind.homeoffice.gov.uk/docume ... iew=Binary

"If applicants with limited leave then apply for indefinite leave to remain, the Rules state that their application will always be refused if they have accessed any of these funds during their previous time in the UK."

There is simply no discretion by the caseworker (as senior as he might be) to grant ILR if applicant states that he has had recourse to public funds. There is an exception for wrongly paid Tax Credits but this is not the case here.

Siggi · Post by **Siggi** » Thu Dec 13, 2007 12:06 am

When our daughter was born in the UK, our midwife told us that we where entitled to a child benfit.
I argued that we where not entitled, so my wife phone DW and explained that in accordance to our visa, it said we had no recourse to public funds.
The answer we got, was that ever child born in the UK regardless of visa status was entitled to child benefit of +-Â£60 pm.
Long and short of this is, ever month for the last 3 years the DW have paid this benefit into my wife account.

As I still worry about this and think it could still be a problem, as the main applicant for ILR I will not mention this fact or show any of my wifes bank statements and just cross my fingers and hope for the best.
Either way, I figure that the HO robbed me of the extention fees, when they changed the law, so it's my way of claiming something back.
Right or wrong, but I don't feel guilty about this.

vinny · Post by **vinny** » Thu Dec 13, 2007 1:02 am

See also Chapter 8 - Family members > Section 4a - Children born in the United Kingdom who are not British Citizens; and Chapter 8 - Family members annexes > Annex P - General guidance:

Annex P - General guidance wrote:2. MAINTENANCE AND ACCOMMODATION

The Rules relating to children born in the United Kingdom who are not British citizens do not require that a child can and will be maintained and accommodated adequately without recourse to public funds. However, should such a child not qualify for leave to enter or remain on this basis, and therefore apply under some other category, he would have to meet all the relevant requirements including, if appropriate, those relating to maintenance and accommodation.

durbr · Post by **durbr** » Thu Dec 13, 2007 8:48 am

Hi again,

In fact, I called the child benefit agency yesterday. The answer was same, "submit the application and the agency will conjsider it".

Rozen · Post by **Rozen** » Thu Dec 13, 2007 9:54 am

As I understand it, child benefit is not means tested. By this I mean, it doesn't depend on your earnings. So it's not given to you because you need it, it is a question of satisfying the requirements eg. immigration status.

On a personal note, financially, we don't need it, but we were advised by the powers that be that we were entitled to it anyway.

Siggi · Post by **Siggi** » Thu Dec 13, 2007 10:21 am

Durbr,
My position is similar ie salary of +Â£100 k pa but the child benefit is paid into my wifes account.
So as I'm the main applicant, under the section, where they ask do you receive any benefit.
I can say no, as this benefit is transfered into my wifes account and will not show up, when I submit my bank statements.

If I was you, take a chance and say no, unless you have to show banks statements that reflect the benefit.

It is a differcult call and also unfair as this is a benefit that is almost forced on you, without too much consideration DW as to our immigration status.

Good luck and by the way when are you alpying for your IRL?

vinny · Post by **vinny** » Thu Dec 13, 2007 11:14 am

14.7 - Children born in the UK on or after 1 January 1983 but who are not British Citizens wrote:Maintenance and accommodation requirements do not apply to a person who qualifies under these provisions.

Siggi · Post by **Siggi** » Thu Dec 13, 2007 11:47 am

Vinny sorry but am I been thick?
I dont seem to find the relative link to the subject?
I asumme you have read it, what does it say?

SYH · Post by **SYH** » Thu Dec 13, 2007 11:53 am

vinny wrote:
14.7 - Children born in the UK on or after 1 January 1983 but who are not British Citizens wrote:Maintenance and accommodation requirements do not apply to a person who qualifies under these provisions.

I don't see how if the basis of your conditions to be in the UK is that you do not avail yourself of certain public funds can be overrided by the guidelines as to who qualifies for such benefits. It is a bit circular to say I qualify because I am here but you are here provisionally and the provision is no recourse to public funds.

Siggi · Post by **Siggi** » Thu Dec 13, 2007 12:02 pm

Look guys
I beleive it is very clear cut, if you are on any type of visa which states"no recourse to public funds" it means just that.
Whilst I'm guilty of receiving child benefit for my daughter I will have to deal with it in my way.
Unless Vinny comes up with some magic answer.

vinny · Post by **vinny** » Thu Dec 13, 2007 12:11 pm

See also 14.7 - Children born in the UK on or after 1 January 1983 but who are not British Citizens

(Rules Paragraphs 304 and 305)

These rules, for the child born in the UK, do not contain any public funds restrictions.

See also my previous post.

durbr · Post by **durbr** » Thu Dec 13, 2007 12:11 pm

Hi,

Thanks for replies.

I spoke with someboday at the HO this morning. He advised me to send application by post and provide a covering letter to explian the situation. As I have stoped Child Benefits, he advised me to write NO to the question.

I intend to prepare a covering letter that will support the idea that we made a mistake (or Child benefit ageny made a mistake) and we have always been able to support our family.

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Child benefit mistake and ILR