Terms & Conditions

[Anonymous]

Hi
I have a claim where the claimant entered the country based on her husband (a UK national) supporting her. However, they split up (August 2004) and she has made a claim for HB (Dec 05) for her and her two kids (both born here). I have requested confirmation of her current immigration status as I’m not sure she would qualify. She has previously made an application for I/S and was informed by the DWP that she would not qualify because she had limited leave to remain.

One of my colleagues has just been on a training course and said something along the lines that she may qualify for benefit because she was married to a UK national. I haven’t heard this before can anybody shed any light on this for me.

Many Thanks

[Anonymous]

Not a PFA expert myself, but have found this, courtesy of those good people at the ALG HB training website;

“Sponsored Immigrants are not allowed to claim benefits within 5 years from their date of entry of the sponsorship undertaking, unless their sponsor or sponsors have died. In the event of the death of a sponsor they should provide their passport, a copy of the undertaking and a copy the sponsor’s death certificate”

Any help ?

[gerryg]

Could your colleague have been thinking about this (from A9/2006)?

[quote:43fa73b803][b:43fa73b803]Family members of UK or Irish nationals [/b:43fa73b803]

35 Family members of UK or Irish nationals who have exercised EC Treaty rights have a right to reside and are exempt from the second part of the HRT.

36 If the family member of the UK or Irish national is their spouse or civil partner, the marriage or formation of civil partnership must have taken place and the parties lived together in the EEA state where the UK or Irish national had been employed (not on a transient or casual basis) before their return to the UK. A spouse/civil partner will retain that status if separated or divorced but an unmarried partner will not retain this right if the couple separate.

Family members will need to provide all the following to confirm their status
• an ID card or passport
• an EEA family permit (if they are a non-EEA national), and
• proof of their relationship to the UK national (marriage/civil partnership/birth certificate

Case Study 1: Spouse of a UK national exercising EC Treaty rights
Mrs C separated from her husband in October 2005 and claimed IS as a lone parent. Her husband is a UK national who had lived and worked in Germany in 2001 where they met and married. They continued to live there until 2004 when they moved to the UK so her husband could start a new job here. As he had exercised his treaty rights he falls to be treated as an EEA national on his return to the UK and has worker status. As his spouse is able to derive family member rights as the family member of a worker, she is exempt from the HRT.
[/quote:43fa73b803]

By the sounds of it your claimant doesn’t fit into this.

[Anonymous]

I have finally received confirmation from the Home Office that the claimant had made a request for leave to remain on 07.06.2003 and they are still awaiting a decision. However, they haven’t confirmed her current status, should I assume that she is not entitled to benefit until a decision has been made?

Once a decision has been made can a claim for HB be backdated if her immigration status allows her to remain in the UK from 2003?

[Anonymous]

In immigration terms, a sponsor isn’t always a sponsor.

If that has confused you, hopefully this thread will explain:

The Social Security (Habitual Residence) (Amendment) Regulations 2012

(Sponsored immigrant 13 April 2007)

[Anonymous]

I think that the claimant may not have come here under a sponsorship scheme. The Home Office confirmed that she came into the country as a fiancé valid until 25th October 2002.

Applications for leave to remain have been made on several occasions but information has not been provided the last claim made in May 2003 is currently awaiting further information before a decision is made.

The partnership dissolved in September 2004 and now she wants to claim CTB in her own right. I do not think she would qualify because of her immigration status (whatever this is). However, if she is granted leave to remain and this is backdated can CTB also commence from the date her immigration status changed?

[Anonymous]

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.

[Author]

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