Student Vs PFA

Currently, there are 0 users and 1 guest visiting this topic.
Viewing 15 posts - 1 through 15 (of 32 total)
  • Author
    Posts
  • #38509
    fayemc
    Participant

    Help, help, help

    Does anyone have an answer on the following, as I am really struggling. Any help would be greatly appreciated.

    We have a dutch lady who has been in receipt of HB for quite some time. We were originally satisfied that she had passed the HRT test and we granted HB.

    Her partner then came to live with her in June 2010. He is a nigerian gentleman who has been given a NINO but has no recourse to public funds.

    We re-assessed the benefit claim in June 2010 and included the partner onto the claim. The HB was then worked out using the claimants earnings and tax credits.

    However, it has now come to light that our claimant actually became a full time student receiving a student loan from September 2010 and she is pregnant and ceased working from January 2011.

    Therefore, the family are now living on just a student loan, CTC and child benefit since January 2011.

    I believe that we now need to cancel the HB from the date she became a student because she would not be eligible and the partner would need to make a claim for the couple. However, can he do this because he has no recourse to public funds? Would that then lead us to question whether or not the family have the right to benefit as can we argue that they would now be a burden on the state?

    Any help please.

    Many Thanks

    Faye

    #108594
    fayemc
    Participant

    Just to add –

    The partner came over to the UK on a family visa, which expired on 24 Nov 2010. He said he would forward on any further immigration documents but we have never received them.

    #108751
    michaelh
    Participant

    Faye

    I would move this to the PFA section if you can and you will get loads of help and opinions from that page. The regular visitiors to that section are experts on PFA’s.

    My answer would be that your initial thoughts are correct in that your clmt can no longer claim as she is a student and as you state, the ptnr would need to make the claim. The problem with that is that the ptnr has no re-course to public funds and sounds like his original visa was a spouses visa meaning he needs to be supported by your clmt.

    You dont even need to go any where near the ptnr making a claim because he simply will not qualify due to the no recourse to public funds condition in his passport.

    #108756
    Kay_Tade
    Participant

    [quote=michaelh]You dont even need to go any where near the ptnr making a claim because he simply will not qualify due to the no recourse to public funds condition in his passport.[/quote]

    The no recourse to public funds, in this instance, is of no effect because the claimant’s partner has an EEA law right of residence. Which means 2 prongs of the same.

    I think the thing you need to worry about, well the partner needs to worry about, is the effect of making a benefit claim may have on his immigration application(I’m assuming he has made one) as it has a restriction on it[As an aside, I can’t give immigration advice but would think anyone in this situation would or should go down the EEA route for residency].

    In this case I would let the partner make a claim and issue a DCI then see what comes back.

    As long as an EEA is exercising treaty rights then the partner has EEA rights as well.

    #108781
    michaelh
    Participant

    How is the EEA exercising treaty rights as she is not a worker or work seeker?? Am I going made here Kay?

    :ghost:

    #108784
    Kay_Tade
    Participant

    She is a student..

    #108786
    michaelh
    Participant

    I am confused.com

    I understand she is exercising her treaty rights as a student. But as I understood, her rights are non qualifying rights of residence for HB/CTB, i.e. she would need to be self suficient, which she is not. However, as she is unable to make the claim as a student her partner needs to do so.

    Her Nigerian partner has a visa allowing him to be here as her spouse, which means she has to support him, she is responsible for housing him and ensuring he is him self self sufficient, albeit on her.

    two things that are confusing me:-

    first thing – his visa has expired in November 2010 and he has not submitted further proof of this – I guess this does not matter even though he may be in the UK illegaly

    second thing – I know partners of EEA nationals exercising treaty rights also have those same rights. so does this apply even when the clmt’s rights are non qualifying rights

    I know I am not going mad but do feel so some times. Does this mean then that in effect this lady would be able to claim HB/CTB if her Nigerian partner, with no re-course to public funds, makes the claim. yet if she was single, loan parent student, she would not be eligible??

    Can you see where I am falling down on this one? I cant, I must appoligise to Faye for hogging her thread… ๐Ÿ˜‰

    #108793
    Kay_Tade
    Participant

    [quote=michaelh]I know I am not going mad but do feel so some times. Does this mean then that in effect this lady would be able to claim HB/CTB if her Nigerian partner, with no re-course to public funds, makes the claim. yet if she was single, loan parent student, she would not be eligible??[/quote]

    Ah, sorry it’s me, you are most definitely not going mad, but really doesn’t change much. All they need to do is switch roles as she is an ineligible student. The partner(Non EEA) is a worker, based on his EEA rights, as a partner to someone exercising treaty rights.

    #108794
    michaelh
    Participant

    I still think I am missing something and this is really weird –

    the man is Nigerian, he has no recourse to public funds on his visa, which has expired, yet he can retain a qualifying right of residence through his spouse(sponsor),who is a student, who would usualy not be habitually resident unless self sufficient…..

    The world has gone made Kay – thanks for your input though, it does get my brain working overtime and makes me consider points I would not usualy consider.

    Mike ๐Ÿ˜‰

    #108829
    stevedaymond
    Participant

    I agree with Mike on this one. The claimant EEA national became an ineligible student so is not entitled to benefit. The partner would need to be the claimant but he had no recourse to public funds so is not entitled.

    So neither are currently entitled based on what has been described.

    You need to check the current status of the partner and hopefully he has a new VISA without restrictions.

    On the student bit see Lekpo-Bozua V London Borough of Hackney which confirms a student needs medical insurance in order to be a qualifying student as per Article 7 of 2004/38/EC, unless of course 7(3)(d) will cover her education.

    #108831
    michaelh
    Participant

    Steve – you have helped me re-gain my sanity, many thanks indeed.

    ๐Ÿ™‚

    #108850
    Kay_Tade
    Participant

    [quote=stevedaymond]The partner would need to be the claimant but he had no recourse to public funds so is not entitled.[/quote] Steve, the point is he has another category of R2R. The first one gives him no recourse but the second one does. He joined the EEA, hence the visa and no recourse, after the citizen arrived in the UK but then obtained the permit. non-EEA partner R2r….

    [quote=michaelh]Steve – you have helped me re-gain my sanity, many thanks indeed.[/quote] Are you sure? ๐Ÿ™‚

    #108853
    michaelh
    Participant

    Yes – it’s difficult enough working these things out, but when opinions differ you have got to stick to what you think or else sanity will wane…

    Mines ok for now though Kay…not sure how long for mind you ๐Ÿ˜‰

    #108859
    stevedaymond
    Participant

    Kay from what has been posted he had a VISA with no recourse to public funds and no further evidence regarding status has been provided.

    So he either has no recourse from public funds and is excluded from benefits due to The I&A Act 1999. Or, he has a new VISA in which case the conditions may be difference and he wont be exluded from benefit.

    This has been discussed many times before:

    Claimant full time student partner PFA

    PFA student with asylum seeker partner!

    PFA/Student claim – entitled to HB/CTB or not?

    Fulltime student & partner with no public funds ent

    #108864
    Kay_Tade
    Participant

    Just to be clear:

    Sec 7(1) of the Immigration Act 1988 effectively provides that someone with an EEA law right of residence in the UK (eg your claimant’s partner) does not need leave to enter or remain in the UK. So I donโ€™t think he can be regarded as falling within the definition of โ€œperson subject to immigration controlโ€ in sec 115(9) Immigration and Asylum Act 1999. Regardless of the Visa.

    If he has not sorted out his EEA permit it doesn’t matter. The permit, as is now well established, is simply an indication of what rights he has under EU law.

    I think you need to just concentrate on HB eligibility rather than R2R in this particular case.

    PS: This is not immigration advice as I can’t do that, legally.

Viewing 15 posts - 1 through 15 (of 32 total)
  • You must be logged in to reply to this topic.