Changes to Public Funds provisions ... from 31 March 2009

The changes to the Immigration Rules, published yesterday, deal mostly with the new Tier 4 (student visas) but also have other content. In particular they contain changes relevant to the Public Funds provisions.

Let's analyse the changes, and apologies in advance if this is going to get a bit technical.

Para 6A of the Immigration Rules currently reads :-

6A. For the purpose of these Rules, a person is not to be regarded as having (or potentially having) recourse to public funds merely because he is (or will be) reliant in whole or in part on public funds provided to his sponsor, unless, as a result of his presence in the United Kingdom, the sponsor is (or would be) entitled to increased or additional public funds.

-: and that is being changed to :-

6A. for the purpose of these rules, a person (P) is not to be regarded as having (or potentially having) recourse to public funds merely because P is (or will be) reliant in whole or in part on public funds provided to P’s sponsor unless, as a result of P’s presence in the United Kingdom, the sponsor is (or would be) entitled to increased or additional public funds (save where such entitlement to increased or additional public funds is by virtue of P and the sponsor’s joint entitlement to benefits under the regulations referred to in paragraph 6B).

So we are introduced to P, who is the visa applicant. Their sponsor is also mentioned. The main difference is that there is now a part in brackets .... "(save where such entitlement to increased or additional public funds is by virtue of P and the sponsor’s joint entitlement to benefits under the regulations referred to in paragraph 6B)" .... and actually I think that is mere confirmation of the existing situation, as regards a joint claim to Tax Credits. The existing para 6B effectively takes precedence over the existing para 6A .... and in the new para 6A we get confirmation that is the case.

So the changes to para 6A are nothing to be concerned about. Let's turn to para 6B. The existing version reads :-

6B. A person shall not be regarded as having recourse to public funds if he is a person who is not excluded from specified benefits under section 115 of the Immigration and Asylum Act 1999 by virtue of regulations made under sub-sections (3) and (4) of that section or section 42 of the Tax Credits Act 2002.

-: and from 31.03.09 that is changed to :-

6B. subject to paragraph 6C, a person (P) shall not be regarded as having recourse to public funds if P is entitled to benefits specified under section 115 of the immigration and asylum act 1999 by virtue of regulations made under sub-sections (3) and (4) of that section or section 42 of the Tax Credits act 2002.

-: to which I say, yes we need to consider the new para 6C, but apart from that the only other change is that again P is mentioned.

So we need to look at the new para 6C. This does not exist in the existing Immigration Rules, but as from 31.03.09 it reads :-

6C. a person (P) making an application from outside the United Kingdom will be regarded as having recourse to public funds where P relies upon the future entitlement to any public funds that would be payable to P or to P’s sponsor as a result of P’s presence in the United Kingdom, (including those benefits to which P or the sponsor would be entitled as a result of P’s presence in the United Kingdom under the regulations referred to in to paragraph 6B).

The first thing to note is that para 6C only affects those "making an application from outside the United Kingdom". So let's just stop there for a moment. Because of what we have already concluded about the new 6A and 6B, for those making visa applications in the UK there is really no difference to the current situation. That is, P is introduced to us, and there is a bit of confirmation about something we knew anyway, but in reality for those making applications in the UK there is no difference at all. Good news!

So returning to para 6C, and only for those applying outside the UK, we are faced with working out what "where P relies upon the future entitlement" actually means. I think it comes down to this. Because of the way the current 6B is worded, it could currently be argued by the applicant that any benefit claims OK because of 6B can be taken into account in working out whether the financial test is passed, or not.

Example .... say the application is for a spouse visa .... and if that is granted .... when the successful applicant arrives in the UK there will be an increased ability to claim Tax Credits .... and the applicant needs to take that increased income into account in order to pass the financial test, then now because of the new 6C, which is mentioned at the beginning of 6B, such extra Tax Credits cannot be taken into account in working out whether the financial test is passed.

The conclusion is thus that where the sponsor has low income then it might be even more difficult than before to pass the financial test.

However if the visa granted, and then the person comes to the UK, there is nothing to stop that enhanced claim for Tax Credits to be made. That is, I think the extent of 6C is merely in determining whether the visa should be granted, and thereafter it effectively has no effect. That is, it does not stop that Tax Credits claim being made; it merely stops such enhanced benefit being taken into account is assessing the success or not of the visa application.

As said above, this is very technical, and if anyone else has any comments I shall be delighted to read them.

Holy sh!t batman, that ain't just technical, that is a fundemental change.  This basically means that if they think you might relay upon public benefits (including 6B benefits), whether you actually do or not, they can consider the applicant as having recourse to public funds and refuse them.

Now, the actual sitaution doesn't change once you end up in the UK, but this is basically a blanket excuse to refuse someone if their sponsor is on benefits.  We will see A LOT of 6C refusals because of this, and I suspect a lot from the US based on how many people we have seen across this board trying to marry someone on benefits.  What is especially evil is the inclusion of 6B benefits, which some very productive families really really really need to survive in the UK.

Thanks goodness you keep your eyes open for this type of stuff.

It's really only putting into writing what has been practice for some time. Personally, I welcome the clarification.

Vicky

It's really only putting into writing what has been practice for some time. Personally, I welcome the clarification.

Yeah but including the 6B stuff, that is just mean.  I know ECOs can't be experts at social benefits (though obviously UK based case workers need to be), but there is a reason why 6B stuff is excluded, because it is basic family formation stuff that people in a fair and equitable society need.  Clarification is good, the fact that this is the policy, is bad, but at least we now have something to tilt against instead of something nebulous.

I guess I need to ask where does this leave me? On spousal, DH only one working & as a family we're getting Child Benefit, Working Families Tax Credit & Child Tax Credit as well...will this hurt my chances for ILR?

I guess I need to ask where does this leave me? On spousal, DH only one working & as a family we're getting Child Benefit, Working Families Tax Credit & Child Tax Credit as well...will this hurt my chances for ILR?

No, nothing changes for those applying from within the UK... Basically the same has it always has been, except for now you are "P"... 

Child Benefit and Child Tax Credit falls outside of 6A/B anyways as it isn't your presence that has bearing on that at all. (If I understand 6A/B properly, which sometimes I don't)

John me old mucker!  I am PROFOUNDLY grateful for your analysis! 

The nuances you pointed out flew right over my head.  We'll definitely need to get on top of this next week.  Please accept my encouragement to press on with your analysis if you were planning to enlarge it.

No, nothing changes for those applying from within the UK... Basically the same has it always has been, except for now you are "P"... 

COOL! I've always wanted to be the variable in an equation! Why is it that Trig & Calculus seem easier than immigration law sometimes?

From the horses mouth:

Public funds
7.19 These Changes amend the definition of public funds in the Immigration Rules to make it clear that where a sponsor’s increased entitlement to public funds is due only to an increase that he and the dependant are jointly entitled to receive by virtue of the relevant regulations, this will not be treated as recourse to public funds. The new Rule at paragraph 6C makes it clear that anticipated entitlement to public funds payable either to the person or to the sponsor as a result of the dependant’s presence in the UK cannot be relied upon to satisfy the maintenance and accommodation requirements of an Entry Clearance application.

Jalexa, having done the analysis without reading what you have kindly posted, I have to say that those words sum it up nicely! In other words, nothing to worry about ... except as regards a visa application outside the UK where a potential increase in benefits needs to be ignored when deciding whether the financial test is passed.

John me old mucker!  I am PROFOUNDLY grateful for your analysis!

The nuances you pointed out flew right over my head.  We'll definitely need to get on top of this next week.  Please accept my encouragement to press on with your analysis if you were planning to enlarge it.

Of course!

Child Benefit and Child Tax Credit falls outside of 6A/B anyways as it isn't your presence that has bearing on that at all. (If I understand 6A/B properly, which sometimes I don't)

Sorry, it is not possible to say that CB and CTC fall outside of 6A/B!

The problem is that it is not possible to say that every reader of this board is in the same circumstances. We know they are not. For example some are here as a spouse of a British Citizen. Others are here on Tier 1 and their spouse is here on a Tier 1 dependent visa. etc etc.

Accordingly some readers of this board will be able to claim CB and CTC, and others will not. That is, the effect of 6A and 6B will vary dependent upon personal circumstances.

Actually, that is something I had missed.  If P is bringing over their wife and child, they can't count child benefit and child tax credits as part of their future budget...even if the child is British.  Is that right?

John, many thanks for this!

Vicky

If P is bringing over their wife and child, they can't count child benefit and child tax credits as part of their future budget...even if the child is British.  Is that right?

Let's just go through this slowly. P is the visa applicant. Their spouse is presumably British, which explains why their child is British. And now the whole family wants to move to the UK and as the only non-British person in the family, P needs a spouse visa.

Vicky, I think it comes down to this. A careful read of 6C shows us that its impact is upon benefits to be paid "as a result of P’s presence in the United Kingdom". Now I think it is obvious that the Child Benefit would be paid to P's spouse, even if P does not come to the UK, so I do not think that is caught by 6C, for this family. But the Tax Credits? Would the amount of the Tax Credits be any higher because P is in the UK? Again I think the answer is no, and the reason for that is that the allowances built into the Tax Credits calculations are the same for "single parent with one child" as they are for "couple with one child".

That is, if P's spouse and child move to the UK there would be an entitlement to say £x per week Tax Credits. Assuming the family income to be the same, if P is there as well, the entitlement to Tax Credits would still be exactly £x per week. So for this family I think the effect of 6C is .... nil!

Another example! Husband is British and lives in the UK. He now wishes to bring is his newly-acquired non-EEA wife, and also her child, also non-EEA. So if visas granted to the wife and child, husband would be entitled to claim Child Benefit, and the husband and wife jointly could claim Tax Credits. Accordingly, in working out whether the financial test is passed, from 31.03.09 we cannot take those potential benefits into account. I say this because as regards the Child Settlement visa, it is the child that is P, and their sponsor is the British citizen, and clearly the sponsor would potentially get more benefits if the Child Settlement visa is granted.

But the point is if, even ignoring those potential benefits, the financial test is still passed, and the visas issued, then those benefit claims are still OK, when the family are all in the UK.