Mistakenly applied & received the Child benefit - how to redo it?

We had a baby in the UK last year and both of us are on the Skill worker visas (main and dependent). Our BRP has remarked as "No Public Funds" and I believe Child benefit (CB) is one of them.
We are continuously living here for 8+ years. Almost 5 years on the ICT Visa and the remaining years on a Skilled worker visa.  
We applied for the Child benefits after a health visitor suggested we do so and later we came to know that we are not eligible. I did my own research and found we are not eligible for it. We don't come under exceptional country citizens who can apply for the benefit.

I contacted HMRC/Child benefits and told them all the things but they said we are still eligible based on the fact that we are not subject to "immigration control" and they keep paying us through DD for CB. Finally, I manually stopped it by putting in another request with HMRC. 

So my question is how I can pay them back all money that we claimed before I stopped CB so that when we apply for the visa extension and ILR we will not get into any trouble? I heard the Home office denied ILR for the same reasons. Hence, no one in friends my circle applies for it.

We don't have any intentions to claim things illegally but limited knowledge can cause these kinds of innocent mistakes.

Thanks for any suggestions.

If you had truthfully told them your circumstances when applying and they mistakenly gave you the benefits, then don’t worry too much.

Health visitors and the people who work at the welfare benefits offices, are not immigration experts. It's up to the migrant to ensure they do not take what they cannot have. Benefits have to be applied for and are not given automatically.

Pay the money back and get a receipt to prove that you have done so, to be able to answer truthfully on your next application to the HO and provide a copy of your receipt.

vinny wrote: ↑

Mon Jan 09, 2023 11:58 am

If you had truthfully told them your circumstances when applying and they mistakenly gave you the benefits, then don’t worry too much.

Even if they did state on their Child Benefit claim form that they were subject to immigration control (and can prove that) and it was the relevant benefit agency that made the mistake, the money still has to be paid back.

Okay1678YT wrote: ↑

Mon Jan 09, 2023 10:34 am

I contacted HMRC/Child benefits and told them all the things but they said we are still eligible based on the fact that we are not subject to "immigration control" and they keep paying us through DD for CB.

Why did Child Benefit think you were not subject to immigration control?

On the Child Benefit claim form-

Question 18 asks if you are subect to immigration control: did you tick the "Yes" box or the "No" box?

Question 19 asks if you were subject to immigration control in the last 3 months and appears to want the date you got ILR? What date did you put?

Quetion 14 ask if you are entitled to have Child Benefit. Did you tick the the "Yes" or the "No" box?

https://assets.publishing.service.gov.u ... nglish.pdf

We lost track of many things due to being busy caring for a baby so I don't remember what I mentioned in the form. I don't have a copy of the submitted application.

As you suggested in the earlier posts, paying back money is a sensible approach for me.

We reported our concern to the Child benefit dept. by emailing them. We got the below reply from one of the child benefit officers was vague. I'm unsure why they think so.

I can confirm that you are entitled to claim the Child Benefit, as you are working in the United Kingdom

Due to this, I did not bother about money coming but as I'm getting near to ILR, I'm revisiting all such things.

Okay1678YT wrote: ↑

Mon Jan 09, 2023 10:34 am

I contacted HMRC/Child benefits and told them all the things but they said we are still eligible based on the fact that we are not subject to "immigration control" ...

Okay1678YT wrote: ↑

Mon Jan 09, 2023 4:37 pm

We reported our concern to the Child benefit dept. by emailing them. We got the below reply from one of the child benefit officers was vague. I'm unsure why they think so.

I can confirm that you are entitled to claim the Child Benefit, as you are working in the United Kingdom

As they think (you told them?) you have ILR, then you living in the UK with a newborn, would qualify for Child Benefit (subject to the earnings cap for CB).

On the Child Benefit claim form for Question 18, it states -

Are you subject to immigration control now, or have
you been at any time in the last 6 months?
Read page 3 of the CH2 Notes.

Page 3 of the CH2 Notes state-

Question 18

You are subject to immigration control if:
• the Home Office says you can stay in the UK
(known as 'leave to enter or remain’) but only if you don't claim certain
benefits, tax credits or housing help paid by the UK government
(known as 'recourse to public funds’), or
• you need permission to stay in the UK (known as 'leave to enter
or remain') but you don't have it.

If you are subject to immigration control, or not sure if you are, you might
still be able to get Child Benefit. Please phone our helpline and ask us.

Citizens Advice has a guide-
https://www.citizensadvice.org.uk/immig ... h-housing/

This is useful but as I told you before, I don't remember about what I filled in the form. Neither I nor my spouse has ILR so it clearly looks like a mistake.

I just called Child benefit helpline to find out how I can repay the claimed amount but they still think I'm eligible. He also mentioned that my employer is supporting my visa application (I think he means of maintenance certificate) so that is another reason to make us eligible for the benefit.
They are reviewing my case, I'll keep updating this post after I hear back from them.
As of now, I don't know how to repay the amount.

Just tell them you are not eligible, your visa says no recourse to public funds and tell them you just want to pay the money back. Stop listening to what they re saying, they are not immigration advisors. Ask to speak to a supervisor or manager.

The answers they give you also has a lot to do with how you are asking questions and exactly what you are saying. They simply might not be understanding what it is you are saying if you are going on and on at length about all this and not being very clear.

Be firm, state exactly what you want/need and if you don't get anywhere, ask to speak to someone more senior. You need to admit YOU made a mistake claiming. Don't just blame them, it is mostly your fault

Your employer and them certifying maintenance is completely irrelevant.

Okay1678YT wrote: ↑

Tue Jan 10, 2023 10:50 am

This is useful but as I told you before, I don't remember about what I filled in the form. Neither I nor my spouse has ILR so it clearly looks like a mistake.

In your opening post, you said that the child benefit staff said you have ILR, when you do not.

In your application for Child Benefit, if you ticked the box to tell them you are not subject to immigration control, then you have committed benefit fraud. Child Benefit staff do not check your status. It's the Home Office who check if you have been claiming public funds when not allowed, on your next application to them.

If you can prove that you ticked the box to say that you are subject to immigration control and it was an error from the child benefit staff, you still have to pay it back but an admin error will not affect your next visa application. BUT, as you have continued to take this benefit knowing you can't have it, that is benefit fraud.

If you think you’ve been paid too much Child Benefit contact the Child Benefit Office straight away - do not wait for the Child Benefit Office to write to you.

You could be prosecuted for benefit fraud if you know you’ve been overpaid but do not do anything about it. You could be fined or go to prison if you’re convicted.

https://www.gov.uk/repay-child-benefit-overpayments

If your work visa has the No Recourse to Public Funds condition, then you are not allowed to take Child Benefit as you are subject to immigration control.

Okay1678YT wrote: ↑

Tue Jan 10, 2023 5:11 pm

He also mentioned that my employer is supporting my visa application (I think he means of maintenance certificate) so that is another reason to make us eligible for the benefit.

Why would the Child Benefit staff mention that today when you said they thought you had ILR? If you mentioned that to them today, then as said, you have confused the benefit staff.

To benefit staff, a maintenance undertaking is something complety different and their sponsor will have committed an offence when the person they sponsor asks for benefits and the sponsor can be made to pay that money back. Migrants with a maintenance undertaking cannot even claim contribution based benefits; contribution based benefits are not public funds.

Back in 2017 I was claiming child benefits as Tier 4 migrant. I would like to point out that I did attach to my application a copy of my visa and a request that if to the opinion of the child benefits office, this is against my visa conditions to reject my application.
I don't clearly remember but I believe I did tick the box that I'm subject to immigration control. The application had been approved (I'm still receiving child benefits and currently hold ILR).

In 2017 I applied to switch from a tier 4 to a tier 2 visa and was asked whether I receive public funds so declared my child benefits. In return, the HO started an investigation into it and missed by far the processing timelines for my application.

I managed to end it only by sending the case officer a letter pointing her to the "home office guidance on public funds" where there was a clear exception in my case.

My take on it is either you take professional advice and ask to stop the CB immediately pay it back and hope for good. I'm not sure but there might be a clause regarding benefits received by an "administrative error" and paid back check the relevant HO guidance for more information.
Also, attach a cover letter to your application with the relevant documents related to the incident.

Never ever take advice from people who were never subject to or aware of the immigration system. They do not have a clue about your situation. This may include the CB office workers. As some mentioned here before their knowledge of the immigration system may be far more limited than you think.

Disclaimer,
I'm not an immigration advisor this post is merely a share of my experience, not immigration advice. If you need immigration advice please contact a licensed immigration advisor.

JB007 wrote: ↑

Mon Jan 09, 2023 1:42 pm

vinny wrote: ↑

Mon Jan 09, 2023 11:58 am

If you had truthfully told them your circumstances when applying and they mistakenly gave you the benefits, then don’t worry too much.

Even if they did state on their Child Benefit claim form that they were subject to immigration control (and can prove that) and it was the relevant benefit agency that made the mistake, the money still has to be paid back.

The linked UT judgment above had found in favour of the applicant.

vinny wrote: ↑

Sun Jan 15, 2023 10:11 am

JB007 wrote: ↑

Mon Jan 09, 2023 1:42 pm

vinny wrote: ↑

Mon Jan 09, 2023 11:58 am

If you had truthfully told them your circumstances when applying and they mistakenly gave you the benefits, then don’t worry too much.

Even if they did state on their Child Benefit claim form that they were subject to immigration control (and can prove that) and it was the relevant benefit agency that made the mistake, the money still has to be paid back.

The linked UT judgment above had found in favour of the applicant.

That is a 13 year old case and her claim for CB was even further back. HMRC could not produce the evidence to show that she had stated she was not subject to immigration control; now the UK goverment use computers and digital records. And other things too with that case e.g. the visa stamp did not state she had no entitlement: the UK uses BRPs now and "no recourse to public funds" are stated on their BRP.
That case doesn't appear to be anything like this case?

The OP has stated that when he phoned HMRC, they thought he was not subject to immigration control and how he then "did not bother about money coming..."[/i] . And in a later call about paying this money back, he seems to have mentioned his work sponsor maintenance undertaking, which does not give access to UK public funds, but benefit staff are not immigration experts. Citizens Advice have stated that it is up to the NRPF migrant to not take public funds. The OP want to apply for ILR and the HO check with the relevant benefit offices.
UK Visas and Immigration guidance on how staff make decisions about which UK public funds foreign nationals can claim and what action it must take if they claim funds they are not entitled to.
https://www.gov.uk/government/publications/public-funds

Times have changed since that case. Now, there are always posts on forums where even British citizens have been contacted by HMRC Child Benefits and told to pay the money back and sometimes fined too. Along with other posts about other benefits too, from those who can take public funds but did not qualify and they have been told to pay back years later when the relevant benefit office has finally caught them. They can be taken to court.

Those posts are usually asking if these welfare benefit debts are statute barred as the debt is over 6 years old; which they are; but the benefits offices don't need to go to court to get these public funds back as they have many ways to get the money back if they are statue barred e.g take the debt out of other benefits; contact their employer who is instructed to deduct the debt from their wages etc.

The recent law change meant that the DWP deal with these debtors now for HMRC (Child Benefit, Tax Credits) too.

The OP should take legal advice.

Hi all

We also have the same situation where my partner got the child benefit, realised we might not be eligible to the claim, called in child benefit office about our concern, offered to pay back but was told that we are indeed eligible and rejected the request of refund.

@Okay1678YT - just wondering what's happening to your case? Did you manage to get the visa renewed?

@JB007, @vinny - my partner has to submit the application for renewal soon, and both of us are really concerned about the outcome. Other than clearly explaining that we have no intention to cheat on the cover letter, is there anything else that we can do.

Cheers

pangbo161 wrote: ↑

Thu Feb 23, 2023 4:31 pm

Hi all

We also have the same situation where my partner got the child benefit, realised we might not be eligible to the claim, called in child benefit office about our concern, offered to pay back but was told that we are indeed eligible and rejected the request of refund.

@Okay1678YT - just wondering what's happening to your case? Did you manage to get the visa renewed?

@JB007, @vinny - my partner has to submit the application for renewal soon, and both of us are really concerned about the outcome. Other than clearly explaining that we have no intention to cheat on the cover letter, is there anything else that we can do.

Cheers

Your situation is not the same as your previous posts stated you hold ILR and were renewing a PBS Dependent visa. A person holding ILR can claim benefits.

Sorry I am already too nervous and only scanned OP post as I was desperately looking for an answer. Yes, my partner is due to renew PBS dependent visa only, not on route to ILR.

pangbo161 wrote: ↑

Thu Feb 23, 2023 4:37 pm

Sorry I am already too nervous and only scanned OP post as I was desperately looking for an answer. Yes, my partner is due to renew PBS dependent visa only, not on route to ILR.

An ILR holder can claim child benefits. No impact on dependent visa.

Sorry, let me explain my situation in more detail. My partner, who is a holder of a PBS dependent visa, applied for child benefit last year and received the payment. However, we later realised that she may not be eligible for the benefit due to the "No Public Fund" clause in her visa.

We contacted HMRC about our concerns and requested to stop the payment a month later. They did - but we did not receive a response regarding our eligibility for the benefit at that time.

Recently, we decided to call HMRC again to inquire about our eligibility and were informed that they had already stopped the payment internally. They even sent us an official letter about the decision about the decision of "ineligibility" from HO perspective and also it's HMRC that decided to stop the payment, not us. According to HMRC, my partner is eligible for the child benefit from their perspective, but not from the Home Office's perspective due to immigration control.

Surprisingly enough...that they also informed us that we are not allowed to pay back the child benefit since we are eligible from their perspective, and that our partner's visa renewal will likely be impacted even though we no longer have a live claim.

This situation has made us very nervous since my partner's visa is due for renewal soon. We really don't have any intentions to claim things illegally but limited knowledge can cause these kinds of innocent mistakes.

Can anyone offer advice or guidance on how to proceed?

Cheers

pangbo161 wrote: ↑

Thu Feb 23, 2023 4:52 pm

Sorry, let me explain my situation in more detail. My partner, who is a holder of a PBS dependent visa, applied for child benefit last year and received the payment. However, we later realised that she may not be eligible for the benefit due to the "No Public Fund" clause in her visa.

We contacted HMRC about our concerns and requested to stop the payment a month later. They did - but we did not receive a response regarding our eligibility for the benefit at that time.

Recently, we decided to call HMRC again to inquire about our eligibility and were informed that they had already stopped the payment internally. They even sent us an official letter about the decision about the decision of "ineligibility" from HO perspective and also it's HMRC that decided to stop the payment, not us. According to HMRC, my partner is eligible for the child benefit from their perspective, but not from the Home Office's perspective due to immigration control.

Surprisingly enough...that they also informed us that we are not allowed to pay back the child benefit since we are eligible from their perspective, and that our partner's visa renewal will likely be impacted even though we no longer have a live claim.

This situation has made us very nervous since my partner's visa is due for renewal soon. We really don't have any intentions to claim things illegally but limited knowledge can cause these kinds of innocent mistakes.

Can anyone offer advice or guidance on how to proceed?

Cheers

HMRC are not immigration experts. Well meaning maternity staff are not immigration experts either. It's up to the migrant to make sure that they do not breach their visa by taking what they are not allowed. You won't be told what is a public fund.

Stop calling and keep everything in writing. Send it signed for delivery and keep the proof they received the letter/s and keep your copies too.

Child Benefit is income capped and the welfare departments chase for repayments all the time, sometimes decades later.

Tell them you must repay the money your No Recourse to Public Funds wife took in error as Child Benefit is a public fund. Remind them of the phone calls you made to them and use your phone or phone bills to get the dates and times to make sure that is in writing too. You could thank them for stopping the payments to the NRPF person, but remind them that you are not allowed to keep this money as it is a breach of the NRPF persons visa.

If your wife wasn't working, then Child Benefit would have given her a NI Credit towards a state pension, which she can't have either and that also needs to be sorted.

When you pay all the money back, get a receipt and use that to show you have repaid everything for the next visa application (or take legal advice).

pangbo161 wrote: ↑

Thu Feb 23, 2023 4:52 pm

Sorry, let me explain my situation in more detail. My partner, who is a holder of a PBS dependent visa, applied for child benefit last year and received the payment. However, we later realised that she may not be eligible for the benefit due to the "No Public Fund" clause in her visa.

We contacted HMRC about our concerns and requested to stop the payment a month later. They did
...

If your children are British citizens, the person who has ILR can claim Child Benefit if they are under the cap. https://www.gov.uk/child-benefit

It should have been a simple case of:-
- stopping the payments to the NRPF parent;
- repaying all CB and removing the NI Credits if the NPFP wasn't working and paying NICs;
- the parent with ILR then claiming CB (if under the CH cap) and backdating the claim for the maximum 3 months allowed (if they had ILR for all that time).


If your children are not British citizens and are No Recpourse to Public Funds, take advice from a specialist immigration advisior to see if you can claim public funds for the NRPF child/ren.

Many thanks JB007 for your advice, much appreciated.

I will take your suggestion and keep everything in writing. Perhaps I have to keep calling anyway so that we can repay the money ASAP. It's just because her visa is due for renewal soon...

Have to blame ourselves on reading an outdated guidance so we thought she met one of exceptions criteria for receiving the claim.

Honestly both myself and my child are British citizens. My partner was employed and on maternity leave during the period when she received the child benefit. So I think we have no issue on the NI credit....?

I haven't re-applied for CB yet. Just want to make sure nothing will go wrong before she applies for visa renewal, which is why we decided to wait.

Initially, I was the one who applied for the child benefit, but we saw a message popping up while filling the application form that it's recommended that the carer with lower income should apply for it instead. As a result, it ended up her applying for it.

Just got ourselves to blame for if it turned out her visa renewal got declined...

pangbo161 wrote: ↑

Thu Feb 23, 2023 7:31 pm

Initially, I was the one who applied for the child benefit, but we saw a message popping up while filling the application form that it's recommended that the carer with lower income should apply for it instead. As a result, it ended up her applying for it.

Just got ourselves to blame for if it turned out her visa renewal got declined...

The CB should be in the name of the parent who doesn't work, but only if they can have public funds. Tha't becausee they are not paying NICs towards a UK state pension.

Don't give up. Be proactive and send that letter to HMRC tomorrow and mark it urgent.