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PSIC - advice required

Brian JB
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Advisor - Wirral Welfare Rights Unit, Birkenhead

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Couple have three children - eldest two are British citizens.

CHB and tax credits have been stopped (and overpaments raised) because parents have limited leave to remain with condition of no recourse to public funds (NRPF).

Husband works, but has a low income - work is permitted by Home Office.

Home office letter says they have been granted limited leave “to remain on the 10 year parent route under para D-LTRPT.1.2 of Appendix FM” as it is in the best interest of the British children to remain in a family unit in the UK.

It goes on to say the application does not meet the requirements of paragraph GEN.1.11A of Appendix FM, so the grant of leave is subject to a condition of NRPF.

I have advised them to seek approved immigration advice urgently. However, husband told me immigration advice in the past had been that they did qualify for child benefit and tax credits.

I think the decisions are correct, but would be grateful if anyone with a better knowledge of this area is able to point out if I am missing anything

Elliot Kent
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What nationality are the parents?

Brian JB
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Sorry Elliot, didn’t see your reply until this morning -  they are from Bangladesh.

DebbieS
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I’ve had a variety of clients subject to NRPF but parents of Britixh citizens who have been granted child benefit. MOre recently HMRC has been declining these claims and we have two currently at appeal stage.

The Home Office guidance on public funds states that a person will not breach the NRPF condition if they claim child benefit. The child benefit technical manual states:

People who are subject to immigration control are not excluded from entitlement to child benefit if they are a family member (spouse or partner) of a person who is a UK national, or an EEA or Swiss national Qualified Person.


Arguably children are also family members: it will be interesting to see if the Tribunal agrees!


[ Edited: 26 Sep 2019 at 10:45 am by DebbieS ]
Elliot Kent
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Yeah - I can’t see how there would be a tax credit entitlement in these circumstances but as Debbie says, it may be that there is an entitlement to ChB.

See the third point down: https://www.gov.uk/hmrc-internal-manuals/child-benefit-technical-manual/cbtm10140

Brian JB
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thanks Debbie and Elliot. I would have to say I think the “family member” argument is unlikely to succeed, looking at the regulations referred to in that guidance. I think it would be limited anyway to a spouse or partner because the child cannot be entitled to child benefit in his or her own right, but a family member at para 3 of Part II of the Schedule has to be a member of the family of a person lawfully working in GB who is a national of a State, etc, and I don’ think that applies to Bangladesh -

1. A member of a family of a national of a State contracting party to the Agreement
on the European Economic Area signed at Oporto on 2nd May 1992 as adjusted by the
Protocol signed at Brussels on 17th March 1993(b) 1as modified or supplemented
from time to time.
2. A person who is lawfully working in Great Britain and is a national of a State
with which the Community has concluded an agreement under Article 310(c) of the
Treaty of Amsterdam amending the Treaty on European Union, the Treaties establishing
the European Communities and certain related Acts(d) providing, in the field of social
security, for the equal treatment of workers who are nationals of the signatory State
and their families.
3. A person who is a member of a family of, and living with, a person specified in
paragraph 2.
4. A person who has been given leave to enter, or remain in, the United Kingdom
by the Secretary of State upon an undertaking by another person or persons pursuant
to the immigration rules within the meaning of the Immigration Act 1971, to be
responsible for his maintenance and accommodation.

Elliot Kent
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It’s the first point you’re looking at rather than the third:

“A member of a family of a national of a State contracting party to the Agreement on the European Economic Area signed at Oporto on 2nd May 1992 as adjusted by the Protocol signed at Brussels on 17th March 1993 as modified or supplemented from time to time.”

On the face of it, a British child is a national of such a state (because the UK is a contracting party to the agreement) and their parents are their “family members”.

The first case on this is CDLA/708/2007. Deputy Commissioner Poynter (as then) holds that the provision must be interpreted in line with the purposes of EU law so that only the family members of someone with a right to reside such as a worker can qualify and “family member” is to be read in EU law terms (i.e. spouse or certain relatives in the ascending or descending line).

However in JFP v DSD (DLA) [2012] NICom 267, Chief Commissioner Mullan considers CDLA/708/2007 was wrongly decided as it takes too restrictive a view of the provision which must be interpreted as it reads.

The controversy is dealt with by Judge Hemingway in MS v SSWP (DLA) [2016] UKUT 42 (AAC) where he indicates that he considers that CDLA/708/2007 should be preferred to JFP - see para 42-43. But this is expressly obiter and so not binding.

So I suppose where you are left is that if CDLA/708/2007 and MS are right, then there would be no ChB entitlement but if JFP is right, then there is. Presumably the situation described by Debbie has come about because the government view has been revised following MS.

Brian JB
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Thanks Elliot for, as usual, your comprehensive and detailed input - I must admit I had rather wandered past point 1 as I am also drafting some advice for Social Services about a complaint on something entirely different and an outline submission for the other case you have commented on. From the client’s perspective in this case, a problem is that he didn’t have the CHB decision letter - only a later letter referring to earlier correspondence about the overpayment, so he is certainly outside the normal time limit for MR, although could still be within the absolute time limit.

Food for thought (probably when I have finished the other two!!