Spouse Visa submitting Child Benefit - wait for ILR?

[ukexpatwife]

Hi, I am currently on spouse visa. My husband has ILR. I have just given birth recently and we're currently looking at the Child Benefit form. My husband earns more than the £60k cap therefore there's no point to get paid the Child Benefit as he will have to pay the same amount in tax anyway. However my husband wanted to submit the claim form under my name in order to protect my State Pension (I'm unemployed). I know that with my spouse visa I have no recourse to public funds at the moment, so we're not sure whether to submit it anyway given that we are not asking to be paid the Child Benefit, or should we just wait until next year when I get ILR before submitting the Child Benefit form?

Any guidance in this is greatly appreciated. Thanks

[Amber]

If your child is British, there is an argument that you can claim child benefit despite being subject to immigration control.

[ukexpatwife]

Thanks for the reply. I've read a number of other threads relating to this situation and many have said that under Spouse Visa where the clause "No public funds" is noted, then I won't be able to claim Child Benefit. The exceptions being if I'm a family member of EU/EEA citizens / Swiss / etc, which I'm not.

My husband wants to ensure to protect my State Pension. Right now I don't even have National Insurance Number, and we're thinking whether only to apply that after gaining ILR? We are also unsure if trying to submit claim now will somehow affect my ILR application next year? This is why I'm asking whether its worth waiting until we get ILR and only submit the claim then, as we don't actually intend to get paid the Child Benefit anyway due to tax. The form says we should submit the claim asap, but I suppose it doesn't matter when we decide to submit it given our circumstances? (submitting late won't make us lose anything, if I'm correct)

[Amber]

You can make voluntary contributions to protect your state pension.

If your child was born in the UK after your spouse, the other parent had ILR, then the child is British. So you are an EEA Family member.

[ukexpatwife]

Ohh never thought of it that way! Yes the child is British as the father had ILR. That makes a lot of sense. Thanks for the explanation!

[ukexpatwife]

Ok before we proceed to submit the application, just wanted to check one more thing. Will claiming Child Benefit now (under spouse visa with exemption due to British child) negatively impact my ILR application next year in any way? Note that we're submitting the Child Benefit form but also choosing not to be paid Child Benefit.

[ukexpatwife]

I think I made a mistake in the interpretation of the exception. Its not 'family member of EEA', but I'd have to actually be a national of EEA in order to claim. In this case it doesn't seem that I can claim Child Benefit under spouse visa as I'm subject to immigration control.

==
You are not subject to immigration control for Child Benefitpurposes if you:
• are a national of the UK, another European Economic Area (EEA) country or Switzerland
• have been given leave to enter the UK, without restriction on your access to public funds
• have been given leave to stay in the UK - for a limited period (unless it’s on the condition that you do not have recourse to public funds)
• have been given leave to stay in the UK - for an indefinite period
• have claimed asylum and been told by the Home Office that you can stay in the UK as a refugee
==

In this case it seems like its probably better that we wait until I get ILR before claiming

[Amber]

The law treats family members of EEA National members as EEA Nationals for this purpose. If you had to be an EEA National why would you be under the immigration rules, that would make no sense.