May/02 IMMIGRATION DIRECTORATES' INSTRUCTIONS
ANNEX CONTENTS
ANNEX W
CHAPTER 1 PUBLIC FUNDS
SECTION 7
DEFINITION OF PUBLIC FUNDS
1. THE LIST OF PUBLIC FUNDS
2. INFORMATION ON SPECIFIC BENEFITS
2.1. Jobseekers' allowance (JSA)
2.2. Income Support
2.3. Working Families' Tax Credit
2.4. Disabled Person's Tax Credit
2.5. Child Benefit
2.6. Housing and Homelessness assistance
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May/02 IMMIGRATION DIRECTORATES' INSTRUCTIONS
ANNEX W
CHAPTER 1 PUBLIC FUNDS
SECTION 7
DEFINITION OF PUBLIC FUNDS
1. THE LIST OF PUBLIC FUNDS
The Immigration and Asylum Act 1999 and the Immigration Rules define public funds for immigration purposes. The Asylum and Immigration Act 1996 includes provision to make no recourse to public funds a condition of leave to enter or remain. A person subject to such a condition should normally only be given leave to enter or remain if he is able to satisfy the requirement that he can maintain and accommodate himself and any dependants without recourse to public funds.
The following is a list of public funds as defined in the Immigration and Asylum Act 1999 and the Immigration Rules:
• Income based Jobseekers’ Allowance (JSA);
• attendance allowance;
• severe disablement allowance;
• invalid care allowance;
• disability living allowance;
• income support;
• working families’ tax credit;
• disabled person’s tax credit;
• a social fund payment;
• child benefit;
• housing benefit;
• council tax benefit; or
• housing and homelessness assistance.
Where a person who is subject to a condition prohibiting recourse to public funds is in receipt of any of the benefits or assistance listed above his application for leave to enter or remain should normally be refused. There are certain exceptions to this and information about some of the benefits listed is given below.
2. INFORMATION ON SPECIFIC BENEFITS
More detailed information is given below on Jobseekers, allowance, Income Support (Urgent Case Payments), Working Families Tax Credit, Disabled Person's Tax Credit, Child Benefit and Housing and Homelessness assistance.
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2.1. Jobseekers' allowance (JSA)
The Jobseekers' Allowance is divided into income-based JSA and contributions-based JSA. Only income based JSA is listed as a public fund in the Immigration Rules. Claimants who have made the appropriate level of National Insurance (NI) contributions may receive contribution based JSA for the first 6 months of any claim. If a person on limited leave is free to take employment and he qualifies for contribution based JSA (for example, a working holiday maker who has been working and paid the appropriate level of contributions who is temporarily unemployed) he should not be refused leave to remain on the basis that he has had recourse to public funds. The criteria for claiming either JSA are that the claimant must be available for and actively seeking employment.
2.2. Income Support
Access to Urgent Case Payments (which fall within DWP's Income Support Regulations) should be regarded as recourse to public funds unless it is in one of the excepted categories listed below:
a person temporarily without funds through circumstances beyond their control (e.g. disruption to the financial sector in their home country). This payment will be for a maximum of 42 days in any one period of leave; or
port asylum seekers until initial negative decision; or
asylum seekers who are nationals of countries designated by the Secretary of State as upheaval exceptions and who have applied for asylum within three months of the declaration.
2.3. Working Families' Tax Credit
Working Families' Tax Credit is a non-contributory benefit which is payable to working families on low or middle incomes who are employed for at least 16 hours a week and who have at least one child to support. Although persons subject to the condition prohibiting recourse to public funds are not eligible to claim this tax credit, there is one exception; the foreign spouse or unmarried partner of a person present and settled in the United Kingdom.
Under Inland Revenue regulations a person is considered to be resident in Great Britain if his or her spouse or unmarried partner is settled here. Where a family includes a foreign spouse or unmarried partner and the family is in receipt of working families' tax credit this should not be considered as recourse to public funds.
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2.4. Disabled Person's Tax Credit
Disabled person's tax credit (DPTC) is payable to people on low or middle incomes who are employed for at least 16 hours a week and who have an illness or disability which puts them at a disadvantage in getting a job.
Under Inland Revenue regulations a person who lives with a partner is entitled to include their partner in the application for DPTC. Where a foreign spouse or unmarried partner is living with a person who is entitled to claim DPTC we accept that the spouse or partner may be included in the application. Under these circumstances we would not consider that there had been recourse to public funds.
2.5. Child Benefit
The Asylum and Immigration Act 1996 contains a provision to remove the entitlement to Child Benefit from a person subject to a condition requiring non-recourse to public funds. This part of the Act came into force on 7 October 1996. Applications from people who were claiming before 7 October 1996 should not be refused solely on the grounds that the applicant has had recourse to public funds, if Child Benefit is the only benefit they are receiving. If the caseworker is in doubt as to whether a claim pre-dated 7 October it may be appropriate to check the date of the first claim. The case should be referred to the DWP to decide whether they wish to review the claim for child benefit after the application for leave to remain has been completed. However, an application from a person whose first claim for Child Benefit was made after October 1996 should normally be refused and the Benefits Agency informed.
In the case of a married couple where one of the partners is a British citizen or has permanent residence, the British spouse/permanent resident is entitled to claim child benefit under DWP regulations. This may also apply where a person from abroad is the spouse of an EEA national who has satisfied the Child Benefit Agency UK residence criteria. Where the only extra benefit being claimed is child benefit it should not be considered as additional recourse to public funds.
2.6. Housing and Homelessness assistance
Under provisions in Part 6 and 7 of the Housing Act 1996 and section 118 of the Immigration and Asylum Act 1999, persons subject to immigration control are not eligible for an allocation of housing or grant of a licence or tenancy by a local housing authority, or for housing assistance under the homelessness legislation, unless they fall within a class of persons prescribed (or specified) by the Secretary of State. Broadly speaking, regulations made under Part 6 and 7 of the 1996 Act prescribe that the following classes of persons are eligible for an allocation of housing by a local authority and for homelessness assistance:
people with indefinite leave to remain who are habitually resident in the Common Travel Area;
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recognised refugees;
people with exceptional leave to enter or remain, who are habitually resident in the Common Travel Area and whose leave is not subject to any limitation or condition prohibiting recourse to public funds;
people who left Montserrat after 1 November 1995 because of the volcanic activity there;
people who are nationals of a state which has ratified either the European Social Charter or the European Convention on Social and Medical Assistance and are lawfully present in the UK.
Certain asylum seekers who claimed asylum prior to 3 April 2000 (and whose claim has not been determined) are eligible for housing assistance under the homelessness legislation (but not an allocation of housing).
The Persons Subject to Immigration Control (Housing Authority Accommodation and Homelessness) Order 2000 specifies that the following classes of person may be granted a non-secure tenancy or licence of housing accommodation by a local housing authority:
all the categories referred to above;
people attending a full time course at a specified education institution (where the accommodation is let to the institution for that purpose - and would otherwise be hard to let);
people attending a designated full time course at an educational establishment (where the accommodation is not let as a secure tenancy);
people owed a homelessness duty;
people owed a duty under the National Assistance Act 1948;
a child in need (or his or her parent);
asylum seekers owed a duty under the asylum support interim provisions;
people who are already a secure tenant of the housing authority.
Persons subject to immigration control other than those listed above are not eligible for local authority housing assistance except advice about homelessness and the prevention of homelessness.
