To: *** for *** MP
From: ***, Home Affairs Section; ***, Social Policy Section
Ref: 2012/4/251-HAS; 2012/4/191-SPS
Date: 10 May 2012
Child benefit and ‘no recourse to public funds’
A British constituent sponsored an application for his *** [non-EU] wife and her two children to come to live with him in the UK. The wife and children are now living in the UK with temporary leave to remain and are subject to the ‘no recourse to public funds’ condition.
It is not clear whether separate entry clearance applications were made for the constituent’s step-children (i.e. whether they were granted entry in their own right), or whether they were treated as dependants to their mother’s application.
The constituent would like to know whether there would be any repercussions in the future if he applies for Child Benefit whilst the children are not entitled to public funds.
This information is provided to Members of Parliament in the performance of their parliamentary duties, and may not fully address the specific circumstances of any particular individual. It should not be relied upon by either Members or others as legal or professional advice, or a substitute for it. If specific advice is needed, a suitably qualified professional should be consulted. The website of the Office of the Immigration Services Commissioner explains about the regulation of immigration advisers and includes a useful online ‘adviser finder’. The Immigration Law Practitioners' Association website includes a directory of its members, and the DirectGov website pages on ‘getting legal advice and legal aid’ may also be helpful.
The UK Border Agency (UKBA)’s published guidance does not explicitly deal with the questions raised by the constituent, and we have been unable to obtain clarification from UKBA officials directly. In light of this, and considering that in any case, the constituent appears anxious for advice on how the Immigration Rules would be applied to his family’s specific circumstances, it may be more appropriate to raise his specific case (and the general issues it raises) with the UKBA directly.
A professional legal adviser specialising in immigration law may also be able to give the constituent some one-off advice on this matter, based on their experience of representing such cases.
Should you intend to raise the constituent’s queries with the UKBA in writing or through a PQ, the following general background information may be useful to you.
1 Would the persons subject to immigration control be considered to have had recourse to public funds?
The UKBA’s cross-cutting Modernised Guidance on ‘Public Funds’ [
http://www.ukba.homeoffice.gov.uk/sitec ... cross-cut/ ] details how the ‘no recourse to public funds’ restriction is applied by UKBA caseworkers handling immigration applications.
Pages 44 - 48 of the guidance discuss how the Agency handles applications for leave to remain when there is evidence that the applicant has been in receipt of public funds.1 It states:
Most categories in the Immigration Rules require people to be able to maintain and accommodate themselves without having recourse to public funds. If an applicant has received public funds you must consider whether they could maintain and accommodate themselves if they were to immediately stop claiming those funds.
If it is clear that a person could not maintain and accommodate themselves you must consider refusing their application under the rules of the category for which they are applying.
If it is obvious that a person could maintain and accommodate themselves without continuing to claim public funds, you must not refuse their application on these grounds. For example, they may have enough money available to them from elsewhere. They must stop claiming public funds because they cannot legally claim them.
Have they breached the conditions of their current leave?
A person who applies for leave will have conditions attached to their current leave that states they cannot access public funds. You must check what is written on their:
* entry clearance certificate
* visa
* UK residence permit, or
* other immigration document.
You must consider refusing the application under paragraph 322(3) of the Immigration Rules if they have claimed public funds but their conditions of leave state they cannot access them. This is because they have breached the conditions of their stay.2
Examples cited in the UKBA’s Modernised Guidance indicate that in some circumstances, when considering whether a person who is subject to immigration control and part of a household in receipt of public funds should be deemed to have had recourse to public funds, one of the relevant considerations is whether they made the application for public funds. It states:
A British citizen or a person settled in the UK who receives housing from a local authority can include their partner’s name on the tenancy agreement, even if their partner is subject to immigration control.
As it is not the person subject to immigration control making the claim they must not be considered to be claiming public funds.
(...)
A person subject to immigration control is not considered as accessing public funds if it is their partner who is receiving the funds that 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 tax credits purposes, neither are treated as being subject to immigration control.3
The guidance therefore covers the situation where a claim for tax credits is made on behalf of a couple with mixed immigration status by the partner who is not subject to immigration control. The guidance does not however cite any examples concerning applications for Child Benefit from mixed immigration stats couples. Nor does it indicate who the UKBA considers as the beneficiary in Child Benefit claims: the parent or the child. However, it might be of interest to note that the UKBA’s guidance describes Child Benefit as [our emphasis]:
a tax-free, regular payment made to anyone bringing up a child or young person. It is paid for each child that qualifies and is not affected by income or savings, so most people bringing up a child can get it.4
2 Would the sponsor be considered in receipt of additional public funds?
The Modernised Guidance considers the scenario of the applicant’s sponsor having been in receipt of public funds:
Most categories in the Immigration Rules require people to be able to maintain and accommodate themselves without having recourse to public funds. A person should not necessarily be refused leave if their sponsor relies on public funds.
You must check if the applicant has declared on their application form that their sponsor is claiming public funds. You must then check with the relevant issuing authority whether the amount of funds the sponsor receives would increase as a result of the applicant joining them.
Paragraphs 6A-6C of the Immigration Rules explains what the position is when an applicant is not claiming public funds themselves but their sponsor relies on public funds
If a sponsor needs to claim more public funds to support the applicant, you must refuse the application. For example, if the sponsor claims income-based jobseeker’s allowance and this would increase if their dependant was granted leave as their spouse. You must refuse the application under the relevant paragraph of the category under which leave is being sought with reference to paragraph 6A of the rules.
If the sponsor needs to claim more public funds to support the applicant but these are funds that the sponsor and dependant would be jointly entitled to you must not refuse the application. For example, if the increased funds fall under the tax credits regulations, such as Working or Child Tax Credits, then you must not regard the applicant as having accessed public funds.5
Paragraphs 6A-6C of the Immigration Rules state as follows:
6A. For the purpose of these Rules, a person (P) is not to be regarded as having (or potentially having) recourse to public funds merely because P is (or will be) reliant in whole or in part on public funds provided to P's sponsor unless, as a result of P's presence in the United Kingdom, the sponsor is (or would be) entitled to increased or additional public funds (save where such entitlement to increased or additional public funds is by virtue of P and the sponsor's joint entitlement to benefits under the regulations referred to in paragraph 6B).
6B. Subject to paragraph 6C, a person (P) shall not be regarded as having recourse to public funds if P is entitled to benefits specified under section 115 of the Immigration and Asylum Act 1999 by virtue of regulations made under sub-sections (3) and (4) of that section or section 42 of the Tax Credits Act 2002.
6C. A person (P) making an application from outside the United Kingdom will be regarded as having recourse to public funds where P relies upon the future entitlement to any public funds that would be payable to P or to P's sponsor as a result of P's presence in the United Kingdom, (including those benefits to which P or the sponsor would be entitled as a result of P's presence in the United Kingdom under the regulations referred to in to paragraph 6B)".6
Regulation 3(2) of the Tax Credits (Immigration) Regulations 20037 - made under section 42(1) of the Tax Credits Act 2002 - states that provided one member of a couple is not subject to immigration control, the couple is entitled to tax credits as though neither of them are subject to immigration control.
There are, therefore, specific provisions in the Immigration Rules about whether claiming tax credits is considered as accessing public funds, and many of the examples in the UKBA’s guidance are concerned with how these should be applied. The position as regards Child Benefit is however less clear. The UKBA’s Modernised Guidance on Public Funds replaced previous guidance in Chapter 1, Section 7 of the Immigration Directorate’s Instructions. Paragraph 2.5 of Annex W to Section 7 used to state [original emphasis]:
In the case of a married couple where one of the partners is a British citizen or has permanent residence, the British spouse/permanent resident is entitled to claim child benefit under DSS regulations. Where the only extra benefit being claimed is child benefit it should not be considered as additional recourse to public funds.8
There is however no corresponding statement in the Modernised Guidance on Public Funds, so we cannot confirm that an application for Child Benefit now would be considered in the same way. It is possible that this is simply an oversight by those drawing up the Modernised Guidance; on the other hand, there may have been a change of policy. If there was a change of policy, we are not aware of any public announcement of it.
Taking all of the above into consideration, we would speculate that it is conceivable that a British citizen would not be considered to be having ‘additional’ recourse to public funds if they applied for Child Benefit in respect of children who came to the UK as dependants of a person being admitted as their spouse (but were not reliant on the Child Benefit), and/or that the children may not be considered to be in receipt of public funds. However, we must emphasise that this is only speculation. Since we have been unable to find UKBA guidance which confirms whether this is the case, we would suggest that you seek guidance from the UKBA directly.
Footnotes
1 In addition, pages 23 - 24 of the modernised guidance discuss the specific provisions which apply if a sponsor has signed a maintenance undertaking.
2 UKBA, Modernised Guidance ‘Public Funds’ v 6.0 p.44-45 (accessed on 9 May 2012)
3 UKBA, Modernised Guidance ‘Public Funds’ v 6.0 p.14;p.18 (accessed on 9 May 2012)
4 UKBA, Modernised Guidance ‘Public Funds’ v 6.0 p.48 (accessed on 9 May 2012)
5 UKBA, Modernised Guidance ‘Public Funds’ v 6.0 p.46 (accessed on 9 May 2012)
6 HC 395 of 1993-4 as amended [
http://www.ukba.homeoffice.gov.uk/polic ... roduction/ ]
7 SI 2003/653 as amended
8 This is an extract from the May 1998 version of Annex W of Section 7, which is available at the National Archives website [
http://www.nationalarchives.gov.uk/eror ... 7w.htm#2.5 ] (accessed 10 May 2012)
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