https://www.gov.uk/government/uploads/s ... _v13.0.pdf
This guidance is updated so always make sure you are looking at the latest version. this is 2016 and i assume this is the latest.
always type the term 'guidance' to get information on what the government wants the staff member in the UKBA/home office to look through to meet the criteria before deciding to give somebody a visa.
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Housing benefit, tax credits, child benefit, job seekers (only income based job seekers, not contribution based (where someone has paid the minimum required amount in national insurance money so that they are entitled to contribution based job seekers, meaning that contribution based is NOT a public fund) ), are all PUBLIC FUNDS. For the full list of public funds look at page 6 and 7 of the guidance link above.
If a person who is on limited leave on a spouse visa claims public fund there visa will be rejected. BUT there are some cases where you can claim benefits but still get ILR.
A person subject to immigration control can claim certain public funds when they have a
right to reside in the UK if they live with a family member who is a:
• British citizen
• national of a country in the European Economic Area (EEA)
In other words if you, the person who is on a temporary visa is married to a BRITISH CITIZEN or an EEA citizen, then your british/EEA spouse is ALLOWED to apply for child benefit and Tax credits.
(page 18 of the guidance) A person subject to immigration control is not considered as accessing public funds if it is
their partner who is receiving the funds 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 most tax credits purposes, neither are treated as
being subject to immigration control.
in other words, even though you are on a temporary visa and not allowed to claim tax credit, your spouse is british/EEA then the UKBA will allow you to claim, and not treat YOU as someone who is limited by immigration rules because your application will be JOINT based on you being married to someone who is allowed to claim benefits. If one of you is allowed to claim, then BOTH of you are allowed to claim and your visa will not be affected. If the british spouse gives false information and claims that both your income is less than what you actually get, then this is a case of fraud and is considered seperately to a visa application. So you could be investigated for fraud, but that does not mean that your visa application will be rejected based on fraud alone, but it might be rejected based on other things.
Therefore it is fine to apply for tax credits but the application must be in JOINT names. The reason that they want your details in the application as well is because they will look at both your and your wifes income to decide how much tax credits is paid in to your bank account. Everyone gets a different amount.
Anyone with a child WHO is british can claim child benefit for that child without being british themself.
UKBA ask for both of your National Insurance number on their form because then they can easily phone the department for work and pensions to check job seekers, and HMRC to check tax credits. So they will find out the amount you are getting.
The KEY point is in page 48 of the guidance in the above link
' 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 to which they are not entitled you must consider whether they could
maintain and accommodate themselves if they were to immediately stop claiming those
funds.
If it is clear a person could not maintain and accommodate themselves you must consider
refusing their application under the rules of the category they are applying under.
If it is obvious 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 are not legally entitled to them.'
So, a british/EEA person is ALLOWED to claim ANY benefits they want as long as they are entitled to them based on having a low income. Therefore whoever has a british or EEA spouse does not need to worry about applying for any type of benefit that comes in the category of 'public Funds', their visa SHOULD not be affected because a british spouse has the legal right to claim any benefit that applies to them.
All the UKBA are CHECKING is that when they give you, the person on a temporary visa, a permanent residence in the UK (ILR) , will you, the person on a temporary visa, start claiming benefits from the government AFTERWARDS along with your spouse, to get extra money to live in the U.K. IF the answer is YES, your income is so little that as soon as you receive ILR you will start claiming funds, then your visa will be rejected. Otherwise they will give you the visa.
They will predict if you will claim after you get the ILR based on what you are claiming now before your application is accepted. If you are already claiming housing benefit, tax credits, then you are doing so because you have a low income. and the UKBA will consider that this will be the same state of affairs after you get ILR.
Dont forget that your british spouse is allowed to claim any benefit they want. so you have done nothing wrong by claiming benefits if your spouse is british/EEA. But you need to check each benefit before you apply; some like tax credits have to be applied jointly. Others like job seekers have to be applied by the british spouse in single name only, but they must state their partners (which is you, the person on a temporary visa) income, so that they receive the correct amount of benefit based on the total COUPLES income.
ALL THE UKBA ARE CHECKING, is that if a british spouse is claiming any benefits, once their non-british spouse's name has been added into the application eg. for housing benefit that was previously in the name of the british partner only, and the spouse with temporary leave is added to this application, will the amount the british spouse receives after the non british spouse is granted ILR, go UP or down?
If the amount paid by the government to support the couple goes up then the visa will be rejected.
If the amount goes down or stays the same then the UKBA does not care about who was applying for which benefit. such an example would be if the non british spouse has a good job and a high income. if that persons name is added into the benefits, then the benefit money will go down (not up) because the couples overall income will be higher resulting in a decrease in benefit money. If the british spouse also has a high income then the UKBA have nothing to worry about. In this case the visa will be successful because all the government is trying to do is to not pay money to support a couple to live in the UK.
If someone commits fraud to get the benefit eg the british spouse, then they may get into trouble for comitting fraud and they will be asked to pay the money back (the money will be cut from future payments) but the visa will not be rejected because this is a different issue.
page 49
All application forms include a section that asks the applicant to declare whether they have
received public funds.
If an applicant has received public funds that have a negative impact on their application, but
not declared this on their form, you must refuse the application under paragraph 322(1A) of
the Immigration Rules. This is because they have not declared a material fact when making
their application.
so tell the truth in your application form. unless you have some excuse. In the set M form, there is a section in section 3 that says that if you do not tell us why you wish to live in the UK in this PARTICULAR section then we reject your visa, then in that scenario you will lose your right to appeal because you did not fill in that section when we asked you to. so always fill in that section. sometimes its easier to include a covering letter which explains your situation and then mention in that section 'see covering letter'
page 50:
This page tells you what action to take when the sponsor of a person applying for leave has
claimed 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 and 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
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.
You can phone housing benefit directly and ask them if only your british spouse will apply in their name with your income factored in, or you apply in both names. I suspect it will be in the british spouses name only and the british spouse is 100% allowed to apply for anything they are entitled to.
If afterwards by adding you into the application, then because your income was ALREADY factored in, then the amount paid to the british spouse will remain unchanged and therefore your visa will not be affected. But aim to make sure your salary does not go down, if anything it will work in your favour if your salary goes up.
Also there is no set time to do your life in the UK test. you can apply and take you life in the uk at any time. they will reject your visa without a life in the UK pass. once you pass you will be given a letter which you include with your visa application form. so dont leave your life in the u.k too late as you might fail and need a couple of months to try and take it again.
also for people who are applying to get ILR (so have been in the uk for at least 5 years ) do not need to pay £500 NHS surcharge because they will be getting leave to remain permanently.
for people who apply mid way and still have 2.5 years before they will then apply fir ILR, they have to pay £500 NHS SURCHARGE to use the NHS.
And in 2017 the cost to make an application in person is £590 EXTRA on top of the other fees of submitting the application. In person they will tell you in a few hours same day.
