Claiming HB - partner has ‘no recourse to public funds’

My client currently lives alone and gets full HB. Her husband is in the UK on a spousal visa but has no recourse to public funds. He is supporting himself with employment, though I don’t know if his work is on the books. I don’t know if he is in the UK subject to a mainenance undertaking but can find out - I assume not as my client is on benefits herself.

They want to move in together but are unsure if this is wise given the ‘no recourse to public funds’ clause in his visa. I don’t want to get him deported for having recourse to public funds when he is not entitled to it.

As my client is already getting full HB, I don’t see how her HB entitlement could get any higher from living with the husband. If anything, her HB will go down due to his employment income. However, the CPAG book repreatedly says seek specialist advice. I can refer them to a solicitor or law centre but I’d be interested to hear any thoughts that people have about this issue for future reference.

Well- I’ve had many clients in exactly this position over the years and have yet to encounter anyone who later had a problem in obtaining ILR (or whatever the current equivalent is) as a result of the HB claim. Having said that, the potential is always there (especially in the current climate) and I’ve always erred on the side of caution & advised the person with no recourse to run it by their immigration solicitor/an immigration specialist.

From memory, and I haven’t done one of these for a while so rules may have changed, claimant with leave to remain is treated as a single person (so subject to single room rent, etc) but partner without leave to remain’s income/capital is taken into account when calculating benefit entitlement. So you can lose benefit but not gain it, as you say.

As 1964 says, if in doubt re Public Funds bit, always refer to immigration advisor

Immigration Rules paras 6A to 6C deal with this, but there is a lacuna where HB is concerned.

It won’t be held against the Person Subject to Immigration Control (PSIC) if his/her sponsor claims benefits during his/her limited leave as long as the sponsor doesn’t get more as a result of the PSIC being there.  Working age DWP benefits are structured in such a way that it is impossible to get more benefit through the PSIC because the applicable amount is limited to single rate while income/capital/working hours are all aggregated; in Pension Credit the PSIC is completely ignored so the effect is neutral.

Nor will it be held against a PSIC if they claim something they are allowed to claim under the limited exemptions from s115 of the Immigration & Asylum Act 1999 (joint Tax Credit claim by couple is the main one).

But HB is a problem: uniquely among the means tested benefits it is possible to qualify for more HB than you would have got as a single person simply because your PSIC partner exists.  HB does not have a modified applicable amount, it’s a normal couple’s assessment in every respect, so the PSIC partner could narrow the gap between the income and applicable amount.  They could also trigger the self-contained one-bed LHA instead of the shared accommodation rate.  The Immigration Rules do not provide any indemnity for the PSIC in such circumstances.

But as 1964 says, it is a theoretical risk - I have only ever heard of one case where someone was refused ILR.  A British man who owned his home was claiming JSA(ib) and CTB.  As a single person he had a CT discount, so the amount of CTB was based on 75% CT.  When his Pakistani wife moved in, CTB was based on 100% CT liability and for that reason she didn’t get ILR.  That was a few years back and I have never heard of another case.

To be on the safe side it is probably a good idea to consult someone with day to day experience of immigration case work.

Thanks for all the answers, really useful. I will refer them to the local Law Centre so that they are clear about the possible implications of them living together.

I forgot to mention that the wife is also receiving IB. I don’t know very much about IB as I’ve only been working in benefits for a few years, but I noticed that there is an addition for dependent adults of £60.40 p/w. Could this cause problems if the husband moved in and then his wages fell to a level that made the addition payable? I guess it would be counted as him having recourse to public funds as her IB award would be increasing because of the husband…

The adult dependant increase is not paid automatically and requires the IB recipient to make a separate claim for it.  There are further rules for entitlement to the increase for a resident spouse: it’s only paid if either the IB claimant receives child benefit or the spouse has reached qualifying age for PC.