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Overstayer partner and benefits
Hello,
I would like some help on a case please. We have a family who are facing eviction. Mrs, has indefinite leave to remain and is currently working part time. Mr had limited leave to remain after serving in the Forces but this has now expired. They have 2 children and Mrs has a tenancy with Local Authority. They are from Fiji originally and have been in the UK 6+ years. She receives CB & CTC. They were fine financially until Mr can no longer work due to his visa expiring. Can he claim CB JSA or will his immigration status affect that? Can Mrs claim any benefits with him as a non dependent whilst his visa is sorted out?
Many thanks
Lauren
You need immigration advice before giving any benefits advice - if he claims something, or his wife claims something, and this is in breach of his immigration conditions or status, he could be imprisoned and/or deported.
https://www.gov.uk/government/organisations/office-of-the-immigration-services-commissioner
Hi, yes we have advised that. We are still trying to establish what Mrs is claiming at present but she’s in hospital. I thought that contribution based JSA was not affected by immigration status though?
Contribution based JSA is not effected by his immigration status - amendments that would have stopped this in the Welfare Reform Act 2012 have not yet been brought into force. Nor is contribution based JSA listed as public funds so even if had a NRPFs condition claiming it would not violate that condition.
[ Edited: 1 Mar 2018 at 03:14 pm by hkrishna ]Contributory JSA is not on the list of affected benefits for somene who is a ‘person subject to immigration control’ (PSIC) at p.66/67 of CPAG Migrants Handbook 9th edition.
I wouldn’t feel at all comfortable, however, advising someone about making a benefit claim in such a scenario, the description about potential consequences for overstayers at p.49 are quite serious.
Ok thanks everyone
Sorry, think we cross posted there Paul.
On whether a claim for anything which is public funds (eg not contribution based JSA) might have any effect on future immigration applications is one to ask an immigration specialist. However, would point out a couple things: a) did his expired LTR have a NRPFs condition because if it didn’t explicitly then there would appear to be no danger; b) even if he did have LTR with a NRPFs condition, as that has expired and presuming no application for an extension or variation was made prior to it expiring, that NRPFs condition is no longer current so claiming public funds now would not be violating the conditions of any LTR as he doesn’t have LTR; c) if he has no current LTR then he is a PSIC for the purposes of s115 Immigration and Asylum Act 1999 which does exclude him from most benefits as a PSIC but that still does not include contributions based JSA - being a PSIC includes someone who has a NRPF condition as part of their current leave but not all PSICs have NRPFs.
But to be safe or if you have any doubts or uncertainty check with whoever is helping with current immigration applications first.
Whilst I’d second (or third) the importance of seeking immigration advice before claiming anything isn’t there a more fundamental problem with CB JSA? The OP says ’ Mr can no longer work due to his visa expiring. Can he claim CB JSA or will his immigration status affect that?’ If he can no longer work due to his immigration status, he won’t be available for work and thus can’t claim JSA…
Oh yes - good point!
https://www.gov.uk/guidance/immigration-rules/immigration-rules-appendix-armed-forces
was thinking army, immigration rules, surely he should be getting leave so unless he totally blotted his copybook in the army ....
so yes immigration advice but strikes me as a bit odd! probably typical home office making a muck
Sorry, think we cross posted there Paul.
On whether a claim for anything which is public funds (eg not contribution based JSA) might have any effect on future immigration applications is one to ask an immigration specialist. However, would point out a couple things: a) did his expired LTR have a NRPFs condition because if it didn’t explicitly then there would appear to be no danger; b) even if he did have LTR with a NRPFs condition, as that has expired and presuming no application for an extension or variation was made prior to it expiring, that NRPFs condition is no longer current so claiming public funds now would not be violating the conditions of any LTR as he doesn’t have LTR; c) if he has no current LTR then he is a PSIC for the purposes of s115 Immigration and Asylum Act 1999 which does exclude him from most benefits as a PSIC but that still does not include contributions based JSA - being a PSIC includes someone who has a NRPF condition as part of their current leave but not all PSICs have NRPFs.
But to be safe or if you have any doubts or uncertainty check with whoever is helping with current immigration applications first.
No worries Henri, I don’t disagree with what you’ve said.
What I would say is why are welfare rights advisers being put in such difficult situations as to have to speculate as to what may, or may not, be possible, because of the spectacular paucity of specialist advice, free at the point of contact? Immigration in this case, mortgage interest loans elsewhere, they make life deliberately difficult it seems.