Indefinate Leave to Enter to join family member

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  • #35181
    Anonymous
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    Hello
    I have two similar PFA claims and getting different opinions in the office so wondered if I can get some more advice here.

    Case 1: Claimant is nigerian been in the UK since November 2004, his passport has a visa entry stamp. The visa type is “Visa Settlement to join/acc relative”. It gives him indefinate leave to enter the UK

    Case 2: Claimant is american been in the UK since March 2006, his passport has a visa entry stamp for “Settlement Husband”. It also gives him indefinate leave to enter the UK.

    In both cases I can’t see any restrictions on public funds. They have both left their relative/wife and claim as single individuals.

    I think that we can pay because the “indefinate leave to enter” is the equivalent of “indefinate leave to remain” and so both pass the Immigration test. We then have to look to see if they pass the Habitual Residency test, which considering the length of time they been here, I would say yes.

    However after discussions I’m not sure if “indefinate leave to enter” = “indefinate leave to remain” and whether both claimants really need to stay with their family members?

    Many Thanks!

    #98746
    Anonymous
    Guest

    Indefinite Leave to Enter/Remain are basically the same. One is given to someone who is already here, the other to someone who is arriving for the first time, but in both cases Indefinite Leave is without strings – it cannot have conditions attached to it, in particular the “no recourse to public funds” condition does not apply.

    But there is one way in which people with Indefinite Leave can be excluded from means-tested benefits: that is when they only got Indefinite Leave on the strength of a written undertaking by someone else to maintain and accommodate them without public funds. In such cases, although they are not doing anything wrong in immigration terms by claiming benefits, the benefits legislation prevents them from receiving any award for five years (or sooner if the person who gave the undertaking has died).

    You may have to check with the Home Office whether an undertaking was given in either of these cases, although it is not normal for such a requirement to be applied to a spouse. It is more normal when a relative, especially an elderly relative, joins family already settled here. So your Nigerian may well come into that category and will not be able to claim benefits until next year.

    See s115 of the Immigration and Asylum Act 1999, and the Schedule to the Social Security (Immigration and Asylum) (Consequential Amendment) Regs 2000.

    #98747
    Anonymous
    Guest

    Thanks for that!
    I will check with the Home Office, but I doubt there is a written undertaking as he is under 25.

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