I work in a mainly immigration firm, so many of our benefit cases are immigration related. I am continually seeing cases where benefit is refused on the basis that the applicant is in the UK under a sponsorship agreement, when in fact they are here under the family reunion rules, and therefore there is no restriction on public funds.

I did see some guidance on this in a HB circular I think, so could anybody point me to that. Also is there any similar guidance for the DWP, as this is happening far too often.

S115 of the Immigration and Asylum Act 1999 excludes a "person subject to immigration control" from most non-NI benefits, and defines PSIC as :

(9) "A person subject to immigration control" means a person who is not a national of an EEA State and who-

(a) requires leave to enter or remain in the United Kingdom but does not have it;
(b) has leave to enter or remain in the United Kingdom which is subject to a condition that he does not have recourse to public funds;
(c) has leave to enter or remain in the United Kingdom given as a result of a maintenance undertaking; or
(d) has leave to enter or remain in the United Kingdom only as a result of paragraph 17 of Schedule 4.
(10) "Maintenance undertaking", in relation to any person, means a written undertaking given by another person in pursuance of the immigration rules to be responsible for that person's maintenance and accommodation.

If the leave to enter/remain is as a result of a maintenance undertaking they're caught even if there's no restriction on public funds.

We've had some success in the past arguing that an undertaking only counts if it is REQUIRED by the Home Office, and that the informal "sponsorship" documents that people often sign as evidence that they can maintain a relative should not be treated as undertakings.

there is no maintenance undertaking in family reunion cases. the immigration rules do not require one, and so this does not apply. the problem is that the visa includes the word sponsor and this leads to an automatic rejection on this basis.

all of these people are not subject to immigration control in any way, but are refused because the dwp staff are not aware of the rules. i need some guidance to show to them which deals with this point.

think the hb guidance you saw may have been HB/CTB A40/2003 ... at para 4 it says -

'The use of the term sponsor is causing problems for some offices when dealing with applications to income-related benefits. People who are settled in the UK can apply to the Home Office for relatives to join them. The Home Office refers to this as "sponsoring", but for social security purposes only one form of sponsorship arrangement can affect access to benefits. The following paragraphs explain the two types of sponsorship arrangements sponsored immigrants, where a written undertaking has been made; and use of the term sponsor in the family reunion scheme'

thats the one. thanks for that.

i do seem to recall some cases that said it did not matter what the sponsorship undertaking was, as long as it played some part in the grant of leave to enter. the actual nature of the form was not important. but i would still say the dwp should prove there is a sponsorship undertaking of some kind, as these are not always required or used, certainly not for spouses or dependant children.

there is very little evidence that they are here under family reunion, only that the vvisa states family reunion. it also says sponsor, so this does not usually help.

i will look at the dwp guidance for inspiration.

David,
You are probably aware that this problem is caused by the fact that the Entry Visa says

"VISA FAMILY REUNION - Sponsor"

As usual with public servants we adopt the if in doubt say no approach.
Unfortunately the immigration rules make no specific reference to the absence of a public fund restriction. I have persuaded our homelessness team by showing them the references in the JCWI handbook (p 223)and the CPAG "Migration" handbook (page 234).
I am seeking something more heipful from the Immigration Service since they are the ones who use this unhelpful turn of phrase. Unfortunately there seems to be a gulf between the well intentioned strategists and the operational end at JCP here in the West Midlands so I too would welcome reference to something I could quote at DWP/JCP staff.
Adrian Randall
Birmingham City Council