Ilr

[marcjaiyenyen]

HI ALL

• hoping for advice and help , no wise cracks just help and surrport PLEASE.

my wife is with me in the UK with her thai daughter and our english daughter too.

when our english daughter was born we applied for child benefit in my wife's name for both our daughter's ,

we claimed this by filling in and the forms and asked are we allowed because my wife was on a spouse visa which says no recourse to public funds , they said fill in the forms and they will check it out, so we did.

we where awarded the monies and didnt think about it any more until we started to gather all our forms for my wife and daughter to stay here for ever, we cancelled my wifes claim as soon as we found out she

could not claim. my question is, when we apply for my wifes visa to stay will it be refused ? if we can prove it was a claim in good faith will her application again be refused ? if we can prove it was an error by hmcrc

will it be refused ?

when waiting for the application for child benefit to go through they rang and spoke to my wife, after a few security questions the person asked my wife are you under immagration rules, my wife did not understand the question so said to them she did not know , they then said do not worry we will check it out and that was the last we heard from then , we then started to recieve the child benefit.

i now know i could have claimed the benefit, right or wrong i have always thought child benefit could only be claimed by the mother ?!!

hoping to hear from people that may have gone through something like this before

[7by7]

Someone in the UK who is subject to immigration controls, e.g. with a spouse visa, cannot claim child benefit; it is on the list of proscribed public funds. However, you can claim for both the children; it does not have to be the mother who claims.

It seems from what you have said that you endeavored to do the right thing and acted in good faith following the advice given to you by HMRC. Aso, as soon as you discovered the error you canceled the claim and payments.

All I can suggest is that you explain all of this in her ILR application and see what happens. I think it would be very harsh to refuse her on this basis, especially as you could have claimed the money yourself with no problems.

On a similar note, although your wife could not claim tax credits in her own right, because tax credit claims by spouses have to be made jointly she could have been included in any tax credit claim that you made.

[kunash]

i will give a quote from a previous post

''claiming tax credit and child benefit in UK

Child Benefit

This is claimed by just one person. That is, either parent can claim although probably in most households it is the wife that claims. However either parent is entitled to be the Child Benefit claimant.

As you rightly say your husband has a visa with the "No recourse toPublic Funds" restriction. Accordingly he must not claim Child Benefit. However there is absolutely nothing to stop you claiming Child Benefit, and you should do so as soon as possible.

When you make the claim there is nothing to stop you mandating the Child Benefit to your husband's bank account, if that is your wish.

Tax Credits

Where a couple live together a claim for Tax Credits needs to be made jointly by them. It would be wrong for Tax Credits to be claimed by one only of a couple living together.

At first glance this is a problem in view of the visa restriction. However "small print" in the Tax Credits legislation, namely, reg 3(2)Tax Credits (Immigration) Regulations 2003 comes to your rescue. That sub-regulation says that where one of a couple is a person not subject to immigration control (you) and the other is subject to immigration control (your husband) then for Tax Credits purposes onlythey are both treated as not subject to immigration control. Accordingly a claim for Tax Credits is totally OK ... for a couple in your circumstances.

This is reinforced by para 6B of the Immigration Rules.

Summary

Go for it ... get both claims submitted as soon as possible, and certainly within three months of the birth of the child, otherwise benefit will end up being lost.'''

[bellboy86]

I claimed child benefit and tax credit and my wife was on no recourse to public funds, on the ilr form it ask you do you get public funds well your wife's current situation in this moment I'n time is NO, then it asked does your partner get public funds and that would be YES, Hope that info helps.

[bobrussell]

Just make sure that you start claiming child benefit instead of your wife. This 'squares the circle' and shows that you are trying to act within the rules.

Do not delay your claim as you can only claim retrospectively for the last three months (or could when I claimed). Sods law as soon as I claim something from Her Majesty's Government they change the rules so I cannot!

Edited May 31, 2011 by bobrussell

[marcjaiyenyen]

I claimed child benefit and tax credit and my wife was on no recourse to public funds, on the ilr form it ask you do you get public funds well your wife's current situation in this moment I'n time is NO, then it asked does your partner get public funds and that would be YES, Hope that info helps.

we will put on the form that my wife did apply and claim but once we knew this was wrong we cancelled the claim straight away and applied in my name, we did this in good faith and with the help of the child benefit people. if we say my wife did not claim or cancelled the claim and they then found out we would be in breach of the rules. always best to be honest. we applied in GOOD FAITH and i feel deeply it was an error on the part of the child benefit people.

plus we do not need the funds but it is a right for us to claim these funds as it is for the up keep of the child and that every child is intitled it if the recide in the uk , i believe.

if i thought i could claim at the time i would have but , i was under the impression a mother could only claim child benefit for the childern..... that is wrong i know now but at the time i thought this to be the case.

thanks to the replies so far hope people will be still able to give good advice to help us even more .

peace and light to one and all ...

[bangkockney]

For how many months was she in receipt of child benefit?

Edited June 1, 2011 by bangkockney

[bangkockney]

OK, I have been mulling this over for sometime now.

My conclusion is that you in fact have nothing to worry about. You can keep the claim in your wife's name and it won't impact on the ILR application.

Yes, Child Benefit is usually considered a Public Fund for the purposes of Immigration. However, there are several exceptions to the rule of public funds.

If a person is subject to immigration control and lives with a family member who is a British citizen or a national of a country in the European Economic Area (EEA) they can claim certain public funds if they have a right to reside in the UK.

Child Benefit is on this list. The full list is:

• Attendance Allowance

• Carer's Allowance

• Child Benefit

• Child Tax Credits

• Working Tax Credits

• Disability Living Allowance

• Contributory related Employment and Support Allowance - ESA ©

• Severe Disablement Allowance

• Social Fund Payment

Now, assuming you are a British Citizen, this makes your wife exempt from the no recourse to public funds endorsement, with regards to the above list.

Now let's progress assuming that you accept that your wife is exempt. What to do when the ILR application is prepared: does she tell UKBA about her CB claim or not?

Reading the UKBA Refusal Formula, you will find the following:

When an applicant has not disclosed material facts which relate to a current application, you must refuse their application under paragraph 322(1A).

When a material fact was not disclosed in a previous application you must refuse the application under paragraph 322(2).

A material fact is one which is relevant to your decision to grant leave to remain. You must not refuse an application when the information the applicant has withheld is not relevant to your decision or when failure to reveal information is an innocent mistake. For example:

• An applicant has applied for indefinite leave to remain as a spouse.

• Your casework checks show that the applicant receives Child Benefit but they have not declared this on their application form.

• The applicant is claiming child benefit legally under an exception to their conditions of leave which state 'no recourse to public funds.'

• You cannot refuse the applicant under paragraph 322(1A) because, if they had disclosed the information, it would be inappropriate to refuse their application.

If the applicant in the above example had been claiming Child Benefit illegally and had failed to disclose it, you could refuse their application under paragraph 322(1A) because the undisclosed information would be relevant to your decision.

So, you can see that it is entirely up to her whether she declares the CB claim or not.. They can't refuse the application if they subsequently discover the claim, as she is covered by the exception (i.e. had she told the UKBA about the CB, her application would not have been refused anyway).

Hope all of this makes sense to you. Welcome questions etc.

Some reading:

Guidance – public funds – v 4.0 Valid from 18 March 2011

General reasons for refusing Section 5 – v 6.0 Valid from 28 April 2011

Edited June 1, 2011 by bangkockney

[marcjaiyenyen]

For how many months was she in receipt of child benefit?

my wife was in reciept of child benefit from 28th june 2010 for our daughter, one being her daughter from thailand and our other daughter that was born in the uk, we cancelled my wifes application in her name on the 23rd may once we where told she could not claim in her name, so i straightaway applied in my name .

thanks for your advice ,

[marcjaiyenyen]

For how many months was she in receipt of child benefit?

my wife was in reciept of child benefit from 28th june 2010 for our daughter, one being her daughter from thailand and our other daughter that was born in the uk, we cancelled my wifes application in her name on the 23rd may once we where told she could not claim in her name, so i straightaway applied in my name .

thanks for your advice ,

spoke very briefly to an immagration lawyer today and they say it should be ok , got an appointment with them for next week , so i will keep people informed .

please feel free to leave comments .