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sponsorship maintenance issues

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Diogenes
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My client came to UK from Pakistan last year with his wife , he is over retirement age wife is under it. they live with their son who is of Pakistan origin, son’s wife ifs Hungarian with indefinite leave to remain in UK.
I was happy to advise that as the family member of an EU national with leave to remain client could challenge the refusal of Universal Credit which he got in fen this year, [yes its a very late MR ] but then noticed that if the clients daughter in law has given a maintenance agreement my client cannot claim benefits and the sponsor could be in deep trouble too. I have tried to find if any maintenance agreement was done but have only ben shown a copy of my clients visa application which asks if the sponsor, [ his daughter in law ] give shim any income, the answer to that question was yes, £100 per month.
How could I or my client find out if a form maintenance undertaking has been entered into by the sponsor , as my client and his family don’t seem able to provide any more information and what will happening if my client tries to challenge the UC refusal which was on grounds of failing the HRT

Paul_Treloar_AgeUK
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You need to be very cautious about pursuing a benefit claim if they have got a sponsorship undertaking in place - they usually stipulate that the person concerned will be maintained for at least five years and will not claim public funds. If there is such an agreement in place and you get the UC award put into payment, you risk them losing their right to remain in the UK, as well as possible arrest, detention or deportation.

As such, I would strongly suggest that you refer your client to a regulated immigration adviser if you are in any doubt about this.

Diogenes
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thanks Paul, yes I think I will do, the client is very unsure of what is going on and its his wife who has the EU rights and we have never seen her in person, the parents came over to UK with no income and no prospects of any so we are not risking losing any at present for them, the risk appears to be to the children

Paul_Treloar_AgeUK
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Diogenes - 10 August 2022 02:34 PM

thanks Paul, yes I think I will do, the client is very unsure of what is going on and its his wife who has the EU rights and we have never seen her in person, the parents came over to UK with no income and no prospects of any so we are not risking losing any at present for them, the risk appears to be to the children

My reading of the CPAG Migrants Handbook is that your client’s right to remain in the UIK could be affected if they claim a benefit which is classed as a public fund when they are subject to a sponsorship agreement, whether formally undertaken or not, and that the sponsor could also be asked to repay any benefit claimed. If you have a condition of stay that says you cannot claim public funds, you are a person subject to immigration control and looking at the daughter’s status insofar as being a Hungarian national with ILR doesn’t materially affect that situation.

So I repeat, I strongly suggest you advise your client to get some immigration advice about their situation before you do anything else about progressing a benefit claim.

Diogenes
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thanks Paul, yes I would not certainly do that before entertaining any benefit claims or appeals. Just trying to find a local immigration specialist at the right level

Paul_Treloar_AgeUK
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Diogenes
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thanks Paul, client has now produced something new, a biometric card indicating residence under the EUSS scheme , presumably as a family member, it gives permission to work on it but no mention of public fund or benefits !!!!!

Elliot Kent
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If they are here under EUSS, they cannot be subject to a maintenance undertaking.

Diogenes
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thanks Elliot, I think I will get them back to check this ss status out, so is it the case that if they have EUSS status they are ok to claim UC, they failed the HRT and were refused back in February this year, no MR was requested t that time and their children have been supporting them

Diogenes
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further to previous, I understand my client is in a protected group if they have eu pre settled status, they are a family member of an EU citizen who has indefinite leave to remain in UK , I am wondering why my client has his UC claim refused on HRT grounds !!!

Elliot Kent
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Diogenes - 16 August 2022 10:45 AM

further to previous, I understand my client is in a protected group if they have eu pre settled status, they are a family member of an EU citizen who has indefinite leave to remain in UK , I am wondering why my client has his UC claim refused on HRT grounds !!!

Your understanding isn’t correct insofar as being a family member of someone with indefinite leave to remain gives you no rights at all.

In order to have an eligibility for benefit, your client would need to demonstrate that:
(a) Their daughter in law is exercising an EU law right to live in the UK - i.e. as either a qualified person or a permanent resident with in the meaning of EU law (e.g. through 5 years exercise of treaty rights), and
(b) That they are a relevant family member - i.e. through proving dependency in this case.

I will bet that the DWP in your case say that (1) there is no proof that the daughter in law is a qualified person or permanent resident and (2) that there is no proof of dependency.

The fact that the Home Office have accepted these things to be true already will carry no weight with the DWP. Your client will have to prove it all again.

Diogenes
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thanks Elliot, the daughter in law does have a document confirming indefinite leave to remain, she is working also,
the client has an EU pre settlement ID card confirming they are here under a family member status. the daughter in law did sign a home office document to confirms she is supporting the parents to the tune of £100 per month, when the parents applied to come to UK. they use a solicitor to help with the application for admittance to UK. would this be enough to warrant a challenge to the refusal of UC ??? , it was refused in February 2022 but the cl has only just sought advice on the issue

Diogenes
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update on case, now have the MR outcome, refused, DWP say daughter is not a qualified person, she is unemployed after having a child, she ended her maternity leave at the time her parents came to live in UK, she is expecting another child so will not be working again for some time I am told.
Is there any ground of appeal at all left open ???

Elliot Kent
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The issue is still the same as it was before. Is the daughter a qualified person or a permanent resident and, if so, is the mother dependent on her.

The DWP are correct insofar as, if she has given up work in order to look after kids, then she will no longer have status as a worker.

There may still be a case about permanent residence. We don’t have enough information to advise. You would need to establish the daughter’s history.

Diogenes
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Thank you Elliot, I will check out daughter’s history, that looks like the only hope, parents are dependent on daughter , they have no income at all of their own

Diogenes
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now totally confused, I called the cl son who is appointee to get evidence of his wife’s residence in UK for an appeal, the son now says UC are paying money into his mother’s UC account, they have told her that they can pay her but only as a single person as her husband is over pension age, its a joint claim for UC and the immigration status of the wife and husband is identical. we only got the MR outcome in in October this year refusing UC as the claimant .[ the wife is named claimant [ does not have right to reside.