Reply To: Sponsorship

#8215
Anonymous
Guest

I think you have two issues to sort out here.

First, what is the claimant’s current status? It sounds like she was given limited leave to enter the UK – that means limited in time (as distinct from indefinite). Limited leave can have public funds restrictions attached to it and hers might well have. On our HBINFO PFA courses, we look at a specimen visa giving limited leave to enter to a spouse for one year and it is marked “no recourse to public funds”. Her husband may well have “sponsored” the visa application in the general sense that he vouched for her and supported her request to enter the UK, but not necessarily by means of a maintenance undertaking. It is more likely that her limited leave had “no recourse” attached to it. If so, she would be excluded from getting benefit.

If she applied for that leave to be varied (for example, extended or converted to ILR) before it ran out, her original leave remains in existence until she gets a decision. If she could claim HB under the terms of that original leave, she still can; if she could not, she still cannot.

If she did not apply for variation before the original limited leave ran out, then she has no leave and will not have until she gets a positive decision from the Home Office. Again, she would not be able to claim HB/CTB

Now on to your second issue. Suppose she gets a positive decision from the Home Office, and her new status is one that does allow her to claim HB/CTB (ILR without a maintenance undertaking, for example). Can we regard that new leave as having any kind of retrospective effect? This s a question that was regularly put to Simon Cox, the barrister who helped us with our last wave of PFA courses. Simon’s view is that leave is something you either have or don’t have on any given day – to an immigration officer, it makes no sense to backdate leave. Their view would be “you’re still here, you’ve got leave, what’s your problem? We won’t deport you from now on, and we didn’t deport you while you were waiting for leave”. So the rather harsh outcome seems to be that people who have gone without benefit while the Home Office delays for months or years looking at their application for leave will not get arrears. I think this view is probably supported by the fact that the Regs see fit to make special provision for refugees to get arrears of benefit when they receive ILR, implying that they would not get arrears without such special provision.