The Public Funds Rule

[Rowan]

I will keep this post short and factual simply because the information I have is as immense as my worries and the length of time that has spent on the jumble of interelated issues.

The facts:

I am an Australian Citizen.

I am on a 2year Limited Leave to Remain Visa which means I am not allowed access to public funds.

I married a British Citizen on 20 July 2006 (before I recieved permission to stay on the visa mentioned above).

My husband recieves DLA, HB, CTB, WTC (four benefits I am not allowed to claim or recieve under the rules applicable to my visa).

General Information:
In the summer we talked to the local council and it was a long drawn out nightmare but in the end they calculated that including me in my husbands claim made no difference to the HB and CTB he was recieving and as I didn't entitle him to extra I was not in breach of the public funds rule.

Q1: Is this correct?
Q2: Will this apply to DLA and WTC?
Q3: How will my immigration status affect my husbands WTC?

I have written to HMRC and the Home Office requesting information about the finer points of the public funds rule and how I fit in to the system without benefiting from it and without rendering my husband penniless.

No response yet.

We are very worried, not at all well off, and we really need to know what to do and expect because our experience of HMRC and the local council have been disasterous and not at all reassurring.

Thank you for your attention.

I hope you will be able to provide me with the information I need to protect myself and do the right thing.

[John]

Using your numbering :-

1. Yes, for HB and CTB the income disregard is the same ... for a single parent with child ... and for a couple plus child.
2. DLA? I don't think that changes, irrespective of family circumstances. So clearly no extra benefit received because you are in the UK.
3. WTC and indeed CTC ... it is not right if your husband only is claiming these. These Tax Credits need to be in the joint names of you and your husband. But that is totally OK and will not affect your later application for ILR

Re. 1 and 2, para 6A of the Immigration Rules applies. For no. 3 ... para 6B of the Immigration Rules applies.

[John]

Rowan, just to add to what I posted earlier, which was written in haste before I was going out.

It is a common misconception that the sponsor of a visa holder is not allowed to claim Public Funds. However there are some ground rules to observe. For some types of benefit it is OK for the sponsor to claim, as long as they claim no more because the visa holder is living there. Examples of these would be Housing Benefit and Council Tax Benefit.

Judging by the list of benefits listed by you there is at least one child living in the household. Accordingly, because the income disregarded is the same for "single parent with child" and "couple with child", as long as there is at least one child in the household, the addition of the visa holder will not actually cause more benefit to be payable. Nevertheless the full household income needs to be disclosed, so potentially less benefit might be payable because of increased household income.

Child Benefit? That must be claimed by the sponsor and not by the visa holder.

Tax Credits! Either or both Working Tax Credit and Child Tax Credit. In respect of a couple living together it is essential that the claim for Tax Credits is made jointly. It would be very wrong for just one of the couple to claim such Tax Credits.

At first glance this looks like a problem, in view of the "No recourse to Public Funds" restriction on the visa. However some "small print" in the Tax Credits legislation comes to the rescue. Namely reg 3(2) Tax Credits (Immigration) Regulations 2003 says in respect of a couple consisting of one person not subject to immigration control (your husband) and one person who is subject to immigration control (you) then for Tax Credits purposes only you are both treated as not being subject to immigration control ... hence it is totally OK for a joint claim for Tax Credits to be made by the two of you.

That regulation is reinforced is reinforced by para 6B of the Immigration Rules.

So Rowan, is the Tax Credit claim really in just your husband's name? If so it needs to be changed .. promptly.

Nothing you have written causes any concern to me, as regards your application in the future for ILR. So stop worrying!

[Rowan]

Thank you for your feedback, John.

Firstly, I had better clarify that there is no child in the household and we do not recieve Child Tax Benefit.

Housing Benefit and Council Tax Benefit is up to date, and my husbands DLA is incidental.

The concern has been the Working Tax Credit - we have written to the HMRC but as far as I know I am not yet recognised as part of the household.

as long as there is at least one child in the household, the addition of the visa holder will not actually cause more benefit to be payable.

Well, there is no child, does that put me at risk of recieving public funds? Or was that sentance applicable to Child Tax Benefit only?

Nevertheless the full household income needs to be disclosed, so potentially less benefit might be payable because of increased household income.

Yes, I realise that.

Tax Credits! Either or both Working Tax Credit and Child Tax Credit. In respect of a couple living together it is essential that the claim for Tax Credits is made jointly. It would be very wrong for just one of the couple to claim such Tax Credits.

At first glance this looks like a problem, in view of the "No recourse to Public Funds" restriction on the visa. However some "small print" in the Tax Credits legislation comes to the rescue. Namely reg 3(2) Tax Credits (Immigration) Regulations 2003 says in respect of a couple consisting of one person not subject to immigration control (your husband) and one person who is subject to immigration control (you) then for Tax Credits purposes only you are both treated as not being subject to immigration control ... hence it is totally OK for a joint claim for Tax Credits to be made by the two of you.

That regulation is reinforced is reinforced by para 6B of the Immigration Rules.

Is the 2003 Tax Credit Regulations really the latest word on this?

Is this likely to change in the next two years and catch me unawares?

Also, are the immigration rules readily available anywhere?

I can't help worrying that the Tax Credit Office will end up paying us incorrectly. Still, I will make sure all the information the Tax Credit Office holds on us is up to date and then I suppose it is up to them to get things right.

As the Home Office gave me my visa knowing what benefits my husband was recieving, and how little we are earning, I can't help thinking that it is possible for this to work out okay. But not having the full information, and having to trust others to use our information correctly ... I can't help being unsure how to get to the point where we know we are ok.

Thank you for your reassurances as now I am sure one less hour will be spent dwelling on the subject today.

Rowan

[John]

The easy bit of the answer is as regards Tax Credits. It is not likely at all that the Tax Credits (Immigration) Regulations 2003 will be changed. Nor will allied regulations like the Tax Credits (Residence) Regulations 2003 be changed either.

Is the 2003 Tax Credit Regulations really the latest word on this?

Yes, UK legislation does not time-expire, unless (very rarely) it specifically says that it does.

The two of you got married abroad, that is, outside the UK? If so the UK recognises that marriage thanks to the Foreign Marriages Act 1892 ... yes 115 years ago ... and still on the Statute Book!

The Tax Credits claim needs to be in joint names. If your husband was claiming that before you moved in, there was an obligation to report you moving in to the Tax Credits office. Do that now if not already done.

Other benefits .... sorry I misinterpreted your abbreviations. So for HB and CTB, the question is, is your husband getting more benefit than would otherwise be the case? If not, then there is no problem as regards your visa.

[Rowan]

Hi John, thanks for the info.

No, we got married in the U.K.

What information will the TCO need? National Insurance Number? Will they need to see bank statements / proof of income?

No, my husband is not getting more HB or Council Tax Benefit than would otherwise be the case. The calculations do, however, take into account his current rate of WTC. Is there a danger of a reduced WTC increasing his reciept of HB or Council Tax Benefit? That seems to be the only remaining question mark.

[John]

What information will the TCO need? National Insurance Number? Will they need to see bank statements / proof of income?

Certainly both claimants need to supply their National insurance numbers. And both claimants need to supply details of their income. Bank statements? I don't think so.

Is there a danger of a reduced WTC increasing his reciept of HB or Council Tax Benefit?

Surely a "reduced WTC" would only happen if your own income caused that reduction, and if there is income like that, well it would also be taken into account in assessing the HB and CTB.

So no, what I have not done is constructed a mathematical model to check all possible scenarios, but I am doubtful whether it is possible to actually get the problem you envisage.

If you have no income, it could well be that the WTC is increased ... which is OK under the terms of para 6B of the Immigration Rules .... but if that happens, the HB and CTB could well be reduced.

[Rowan]

Ok. Thank you. I am reassured.

Is there a specific form I need to fill in to give my details or can I just do that in a letter or over the phone?

[John]

I think your husband, as the existing Tax Credits claimant, needs to phone the Tax Credits office and report the change of circumstance. He should have the latest Award letter in front of him when he phones.