ILR catch-22. Is there any way through?!

[sydneylee]

My Limited Leave to Remain expires on November 1, 2013. My British husband/sponsor had a stroke in January of this year and consequently had to go on Benefits as he lost his business as a result of the stroke. He was denied any benefits (Housing and Council Tax) as long as I remained with him. He has no income but State Pension. So I was forced to leave my husband, home and the UK and return to Canada.
I was going to apply for Indefinite Leave in October but my husband's stroke has changed things for us. I believe I would be denied Indefinite Leave because my husband is no longer able to support me without recourse to public funds. As it stands at any rate, I must live in the UK to apply for Indefinite leave and I cannot do that because my husband would lose his Benefits and has only his state pension otherwise. He is 77 years old. I am 68. I seem to be in a catch-22 situation. Is there any way out of this mess?

[Amber]

Has your husband claimed Attendance Allowance? His benefits are unlikely to be lost, who told you this and do you have an income?

You should consider returning before your leave expires.

[sydneylee]

Yes, I believe his daughter recently helped him put in an application for Attendance Allowance. I have only my Old Age Pension from Canada. Richmond Council demanded to see a copy of my airline ticket and had my husband promise I would not be returning to our home. His benefits will be stopped if I return....no recourse to public funds for me means no recourse to public funds for him as long as he will be supporting me with them. He had his Benefits within one week of my leaving.
They said if I had a National Insurance Number, he could get his Benefits. I applied, sending the money for it and it was returned. I could only get one if I was going to get a job. No National Insurance number for me, no Benefits for my husband. We had Age UK look into it. They were told that if I were illegal, there was a number the Council could key in that would bypass the need for me to have a NIN.....but that provision is only for illegal aliens apparently. I went round and round in circles and got nowhere, never getting the same answer twice. It was a nightmare. And there is still the issue of an application for Indefinite Leave. It seems to be a given that I would be denied. I came back to Canada end of June and have spent the last two months putting my Benefits here in place and setting up a small apartment. It cost money I don't have and I don't want to lose everything to return to the UK just to be thrown out when ILR is denied. I am too old for that. The ILR application specifically instructs me to prove that my husband/sponsor can support me without recourse to public funds. He can't.
If I returned before my Leave expires, it feels I would be returning to the same mess I left...or worse.

[Amber]

Well this sounds all wrong to me, the local authority have acted disgracefully, they have a duty towards vulnerable people that they seem to have neglected.

To start with all you need to tell the DWP is that you need the NI number for a job and you should get one, you should omit saying it's for benefits.

The requirement for you to be able to adequately maintain and accommodate yourselves does not mean that no public funds can be claimed at all. What it means is that no additional elements can be paid for a person who is subject to immigration control (though this depends on their native Country).

Housing benefit and council tax benefit are means tested, that means it depends on income and capital. As you are subject to immigration control only a single person' applicable amount would be calculated (plus a pensioner's premium and possibly disability premium and enhanced disability premium if he is awarded Attendance Allowance), this would change once you were settled (awarded ILR). However, the income and capital taken into account would be for the both of you.

Age UK albeit a very good charity are not really specialist advisers in social security legislation and immigration law so getting them to help was perhaps ill advised.

Your Canadian Old Age Security Pension should be able to be paid in the UK under a social security agreement.

Your income can be included in order to show adequate maintenance.

What is your husbands income and savings and what is your income and savings, what is your husband's rent?

[sydneylee]

It was actually Richmond Council who involved Age UK after I 'lost it' over the telephone trying to get some sort of coherent and cohesive answer from them.
I was getting my Pension deposited into my UK bank account. There was no problem there. I have since had it redirected back here to my bank account in Canada.

Income and savings are a serious problem. My husband is not much for thinking ahead when it comes to money and lived like too many people do....on credit. I was mortified and not a little angry when, after his stroke, I found out our financial situation. Suffice it to say, at 77 years of age, he stands absolutely no chance of ever being out of debt (approx £30,000). Bankruptcy may be his only option. Savings.....zero. Income now is State Pension of $475, Pension Credit, £?, pending Attendance Allowance of approx £300. He also has full Housing Benefits and Council Tax Benefits. His rent was approx. £575 I believe. He is in the three-bedroom flat he raised his family in. We are on a waiting list for smaller accommodations but nothing has transpired as yet. I have my Pension which is approx. £350 a month depending on the exchange rate. I also have no savings and had no debt until very recently....it should be paid off within the next 6 months. I had been on Disability Pension here for many years until Old Age Pension kicked in.

Under these circumstances, even if something could be done insofar as the present is concerned (Benefits), what about the future? What chance do I have of ever being 'settled', receiving Indefinite Leave to Remain?

[Amber]

Based on what you've written (subject to an accurate breakdown) you should be able to satisfy adequate maintenance even without the Housing Benefit, Council Tax Benefit and Pension Credit, subject to the award of Attendance Allowance.

Don't worry about the debts, a competent debt adviser should be able to get the debts written off, or if not, £1pcm token payments as your husband is severely ill a pensioner and on pension credit.

For settlement, you can have absences but they need to be limited and for good reason, if for example, you needed to be in Canada for an ill relative etc.... if not, you would have to look at an extension on flr(m) until you meet the qualifying period for settlement.

I assume you can show that the relationship is subsisting, you communicate?

You should also bare in mind, cohabitation proof, i.e. letters addressed to you both at the same address over the two year period.

[sydneylee]

Yes, we Skype twice daily and also email. We have been married and living together since March of 2010. I have been away now for about 60 days.
I received a letter from UKBA not too long after our marriage (and after being given permission to marry and being sent a congratulations letter and sending them £495 for fingerprints etc) telling me that I had no right to be in the country and would have to leave on my own steam or be taken forcibly to the airport. Apparently they had decided that ours was not a genuine marriage because of our short courtship I expect. I had a short time to prepare a case for the Tribunal. I sent copies of the case I put together (filled to overflowing with proof of our marriage both from friends and family in Canada and countless people in the UK) to the judge and the UKBA as directed. The UKBA sent nothing to me nor to the judge nor did they show up for the court case. The judge held the session without them, visibly angry I might add. We waited another month or two for her judgement which was in our favour. She had absolutely no doubt our marriage is genuine.

As far as time spent away, I would think that a letter from the Council demanding to see a copy of my plane ticket and extracting a promise from my husband that I would not return would constitute adequate reason for being away.

I thought I had satisfied the qualifying period for settlement and had already proven the validity of our marriage. Surely they are not at issue anymore. I thought that only the financial situation would be an issue.

It is my understanding that Attendance Allowance is also 'public funds'.

I do thank you for your help. I feel quite alone in this mess as my husband is not up to dealing with it and I want him to be able to concentrate on regaining his health, not dealing with this.

[Amber]

You still need to show your relationship is subsisting (cohabitation proof).

The Attendance Allowance is a public fund, however, your husband is entitled to claim and it can be used as income for adequate maintenance.

If you've only been away 60 days you should consider making your way back in view to getting settled.

Once settled the benefits can be assessed as a couple meaning you should be entitled to some PC, HB and CTB/CTR though it's means tested and you'd need a benefit entitlement calculation.

As soon as you get back get a NINo number (needed for work) inform the benefits agencies get reassessed and look at a set(m) application. You need to get this sorted out as I am sure your husband's health would be better with you with him and not over the ocean.

[sydneylee]

Just to recap and clear my head....

1) Upon returning, first thing is to get a NINo number

2) Inform Richmond Housing and get re-assessment - my husband should get HB & CTB/CTR but not full benefits because only he is eligible. Is that right?

3) It was my understanding that he would not be eligible for Pension Credit at present if I am there because my income will work against him. Not sure if that's accurate.

4) I have been away 60 days now plus 21 days visiting last year. Can I be here 'til the end of September or mid-October without a problem? It will take a little time to ‘unsettle’ here.

5) I was told I could not apply for carer's allowance but everything I read says a person under immigration control who is sponsored CAN get carer's allowance. Do you know?

6) Co-habitation proof should not be a problem. More letters!!

7) Apply for ILR. Approx. how long does it take for that to go through it’s process, do you know?

So definite income for the time being would be his pension, my pension, attendance allowance.

and possibly carer's allowance

and possibly some pension credit

and as for benefits, possibly partial HB and CTR

Am I understanding this right?

Thank you again

[Amber]

Just to recap and clear my head....

1) Upon returning, first thing is to get a NINo number

Yes

2) Inform Richmond Housing and get re-assessment - my husband should get HB & CTB/CTR but not full benefits because only he is eligible. Is that right?

Your income will be included as its means tested but the amount awarded will be based on a single person + pensioner premium and possibly disability premiums if he's awarded AA. You may or may not be awarded CTB/CTR or HB it will depend on the exact weekly income and your LHA amount.

3) It was my understanding that he would not be eligible for Pension Credit at present if I am there because my income will work against him. Not sure if that's accurate.

It's unlikely he'd be awarded PC but there are two components so he may get some savings credit but can't really say. When a person is awarded the guarantee credit of pension credit they automatically qualify for full housing benefit and CTB/CTR.

4) I have been away 60 days now plus 21 days visiting last year. Can I be here 'til the end of September or mid-October without a problem? It will take a little time to ‘unsettle’ here.

Your absences should be limited and for good reason. The less the better.

5) I was told I could not apply for carer's allowance but everything I read says a person under immigration control who is sponsored CAN get carer's allowance. Do you know?

You're not sponsored (no undertaking) you can't claim CA until you are settled. So long as your husband receives AA, you care for 35+ hrs p/w and you don't have an overlapping benefit you should be able to claim CA when settled.

6) Co-habitation proof should not be a problem. More letters!!

7) Apply for ILR. Approx. how long does it take for that to go through it’s process, do you know?

You can usually get a decision the same day at a peo if your case isn't complicated, you can apply from 28 days before your 2 years completes.

So definite income for the time being would be his pension, my pension, attendance allowance.

Yes, I'm not guaranteeing success, you never can with applications, but get things sorted and you stand a good chance, chase the attendance allowance application up.

and possibly carer's allowance

and possibly some pension credit

and as for benefits, possibly partial HB and CTR

Am I understanding this right?

Thank you again

[sydneylee]

Thank you so much for your help.

It frightens me terribly to go back and deal with UKBA again. Sometimes it feels like they are going to be the death of me...literally.

But my husband and I need to be together so it's the right thing to do. It is so peaceful here but empty without my husband.

Thank you again.

[Amber]

Keep us updated, best of luck.

[sydneylee]

I keep reading about the 2-year qualifying period. My Limited Leave residence permit is for 3 years - Date of issue: November 1, 2010 Valid until: November 1, 2013. I'm not sure of the difference between the qualifying date and valid until date and I am nervous that somehow I have passed the date that I am supposed to apply for ILR. Can someone enlighten me please? I am a little paranoid. I copied the bit below which made me more confused about these dates.

Assuming I am not in a pickle re: dates, I am not in a position to pay the extra £475 for premium service but I think that a settlement checking service would be a good idea. But what would my status be during the processing time?


"You should book a settlement checking service appointment before your current leave expires and you can attend your appointment when you have completed or are within 28 days of completing a 2-year qualifying period, see above.

If you were given an entry clearance visa (issued abroad), your 2-year qualifying period started from the date your visa was stamped, by the Immigration Officer, when you entered the UK.

If you have a residence permit or a biometric residence permit (BRP) (issued in the UK) the 2-year qualifying period started from the date these were issued (valid from date)."

[Amber]

Were you granted discretionary leave to remain or were you married before you entered and give indefinite leave to enter? Explain what happened when you got your leave Does your vignette say, no recourse to public funds on the remark? please give a timeline of your immigration status and what's written on the vignette.

[sydneylee]

I entered the UK as a visitor on November 27, 2009. The stamp says "leave to enter for 6 months. No work or recourse to public funds." My now- husband and I were considering marriage but I did not want to commit until I had met his children. When I was satisfied that they accepted me, we applied to marry and were granted permission. We married on March 3, 2010. Later in the year I was told to leave, that I couldn't stay because I had entered as a visitor and because UKBA believed we were not a genuine couple. We fought it and won. UKBA sent me a letter saying I would be granted Limited Leave. I sent them my passport and it was returned with a Residence Permit (I don't know if it is a Biometric Residence Permit or not although I did have Biometrics done in Croydon.) The permit has my name, date of birth, sex, country (Canada), the dates as stated above, place etc - Sheffield, type of permit - Limited Leave to Remain, Remarks - Limited Leave to Remain in the UK. There is no reference as to work although I think in the accompanying letter it states that I can work...not sure about that. It doesn't say anything about no recourse to public funds on this permit, only on the original 6-months visitor stamp. Not sure what is meant by vignette. If that is the permit, I believe what is on it is as stated above. Except for lots of numbers below. One of the numbers is my passport number.
Hope that's everything you asked for.

[Amber]

Sounds like discretionary leave to remain with full access to public funds. This would mean you need to extend it for a further 3 years before applying to settle. Basically means the whole point of you leaving was totally unnecessary as you can legitimately claim public funds and should have never left. This is why Age UK weren't the best choice you needed someone who understood immigration and benefits. You need to get back to the UK and get an advisor to check your status then proceed to sort out an flr(o) extension if it is indeed DLR.

[sydneylee]

DWP requested my passport 3 times... and photocopied it. Richmond Council requested and photocopied it twice. Both of them said I was not entitled to public funds....and neither was my husband! They both saw my passport and I did point out to them both that there was no reference to 'no recourse to public funds' anywhere except on the original stamp. Are they all idiots!? What you are telling me is what I've been suspecting for some time.

I wasn't familiar with 'discretionary leave' except where it applies to refugees.

I must hunt up the letter from UKBA re: this permission.

I am going to hit the ceiling at full tilt if what you suggest is true!!

I am preparing to leave here at the end of September. I can leave sooner if necessary but at some difficult financial cost. Do you think there is an urgency for me to go sooner?

And I will get an advisor as you suggest. Thank you

[Amber]

It sounds pretty much certain you have DLR with full access to public funds. The DWP and local authorities are clueless most of the time (if not all the time). They don't know one type of leave from another usually,

I would consider serious complaints regarding this, get your local MP involved too. A good immigration and benefits solicitor/advisor should be able to sort it all out. Also get your NINo to help with the benefits. The sooner you can return the better I think, but the end of September should suffice. Contact a solicitor in advance and discuss all we have discussed, explain its likely DLR with access to public funds and you'll likely need an flr(o) extension and the way the council treated you etc.... Best of luck and don't forget to return and let us know.

[sydneylee]

It is discretionary leave. I just found the letter that came with the return of my passport. It was buried in the pile of UKBA papers. I kick myself for not finding it sooner. It is very clear that I must apply for an extension.

Is this the usual procedure, to grant discretionary leave under the circumstances I described. I am at a loss as to why, when a judge decides we are a genuinely married couple, this extra time has to transpire. What could possibly be the reasoning behind it?

I am 'gob-smacked'.

Thank you so much.

I may have more questions when I look through the application form.

I will definitely keep you posted.

[Amber]

You made an in country application on flr(o) for dlr I presume, you should work on the presumption that an flr(o) extension is what you need and you can settle in 3 years time. You can also claim carer's allowance ok now there is in some exceptional cases the possibility to apply for ILR after just 3 years DLR and given the compassionate nature of your case (age and illness of husband) it may be appropriate to try for this, ask your solicitor if not, a 3 year extension.

Sorry you've been treated this way, not good at all, hope the future is easier and brighter for you both.

[sydneylee]

No, it was FLR (M).

Does that make a difference?

[sydneylee]

Sorry, this might be a duplicate post. Can't find the first one.

No, it was FLR (M). Does that make a difference?

[Amber]

It depends, perhaps there was an issue with maintenance or something else, the solicitor could look into it and see why you were granted DLR. often ts a English language issue but you're from Canada so not that.

Anyway focus on getting back and breath easy now you know that the public funds isn't an issue anymore and you know that you can perhaps relax a little. The council seems to have worn you down somewhat but you sound like a fighter and you're in the right so I'm sure you'll tacke this well.

[sydneylee]

I think the issue was that UKBA got mad. The judge overturned their decision and we were going to pay for it. Sounds a little cynical, I know.

I can say 'gob-smacked' so my English isn't too bad.

Thank you for your kind words. I am a fighter and I am exhausted but now I will regain my breath and we will get our life back.

I'll be back when I get home and fill you in.

Deepest thanks from me and my hubby.

[sydneylee]

I'm just trying to sort out exactly where everything went 'pear-shaped'. Everyone who has looked at my passport....Citizen's Advice lawyer, DWP and Richmond Council determined that I do not have recourse to Public Funds. It seems to me that the crux of the problem lies with UKBA. The letter that I received with the return of my passport states in part:
Confirmation of your entitlement to remain in the United Kingdom is endorsed in your Passport/Immigration Status Document.
DISCRETIONARY GRANT OF LEAVE TO ENTER/REMAIN.

But that is not the designation in my passport. The designation reads: "Limited Leave to Remain in the UK"

I am assuming they wrote the wrong designation on my Residence Permit and that is why everyone concludes that I have no recourse to public funds when in fact, I do.

Is it true that when Discretionary Leave is given, it is clearly written on a person's Residence Permit in their passport?

I just want to understand where 'blame' belongs. Possibly these authorities who looked at my passport drew the wrong conclusion by no fault of their own?!

I still hold Richmond Council responsible for the terrible treatment but maybe not for the misunderstanding.