Mixed status couple

Hi all, just want to double check something befiore I advise -

Cl is British citizen, wife is currently on 2 year visa with public funds restriction.  They have just had their first baby.  Am I correct in thinking they will be alright applying for Child Benefit (provided he is the claimant) and Child Tax Credit, but that applying for Housing / Council Tax Benefit could affect her rights to stay in the UK?  He works 15 hours per week and earns slightly above JSA levels so this is not an issue. 

Thanks.

Off the top of my head: the HB/CTB issue is about claiming EXTRA benefit because you have a partner who has a public funds restriction. He would not be able to claim with a couple rate in his applicable amount, but could claim the amount of benefit he would get if he was a single person. LHA might come in here somewhere to limit what he could claim. But if he is only getting what he would get anyway he isn’t claiming extra benefit for her.
I’m fairly sure there was a thread about this a year or so ago.

Different rules apply to different benefits but for HB they will be treated as a couple when working out the applicable amount.  If they are not currently getting full HB this could lead to an increase in HB and this could be treated as recourse to public funds.  The HB guidance states that the local authority are not required to notify the Home Office about this.  I my experience I have not come across anyone who has had their immigration status affected by such a claim but it may be worth recommending they get advice from someone expert in immigration advice.

He is not claiming anything at the moment.  Whether he included her on the claim or not it would be the 2 bed rate because of the baby, but I always understood that making a claim implies he cannot support her and thus it might jeopardise her chances of getting permanent residence in future…or am I being overly paranoid?

you’re surely being overly paranoid.

it’s the baby that needs the second bedroom

assume, for the sake of analogy, that he was on his own with the baby .. what would that entitle him to?

I have recently had a case very similar to this and due to similar concerns I spoke to an immigration solicitor. The conclusions were these;
- CB fine, the UK national claims
- HB/CTB fine, UK national claims (claim was dealt with by the LA on the basis of the UK nat. entitlement - 2 bed LHA)
- CTC/WTC was an issue because as the clients lived together they would have to claim as a couple and this would mean the non- uk national having recourse to public funds which breached immigration conditions. In my case the solicitor was sure that this would not impact immigration status - you should check this because solicitor noted UKBA do not take the same approach with all people, it is dependent on their visa/entry conditions etc.

My understanding is that they have to claim benefit as a couple.  As stated above it is all about them getting extra benefits for them being a couple. 

I see no problem with getting the 2 bed rate of LHA as this is what a lone parent would get.  Therefore no extra benefit here.  However, unlike JSA, etc, you cannot separate up the couple allowance as far as i am aware,  This means that the couple rate would be included in the applicable amount for HB and CTB regardless of status.  This should not be an issue if the claimant is getting maximum HB anyway as they would not get any extra.  Problems arise however if the claimant is working and only getting partial help with HB.  The reason being that there will be an increase in the amount of HB due to the couple status.

For Tax Credits the If you or your partner have different immigration statuses and you partner is exempt for the “person subject to immigration control’ definition for CTC but not WTC, you can get CTC.  Equally the reverse is true (see chapter 59 of CPAG if you have it avaialable).

If your client has an immigration advisor then I would suggest that they also speak with them to ensure taht any claims would not cause any porblems from an immigration perspective.

I hesitate to take issue with an immigration solicitor on this, but suggest you look at the Tax Credit Immigration Regs. 2003.  Reg 3(2) provides that for couple claims if one of the couple is not subject to immigration control & the other one is, then it is OK to make a claim.

There are of course some qualifications, but my understanding has been that in most cases these Regs. solve the problem.  I assume that anything UKBA does must be in accordance with these Regs.

I’m not aware of these Regs. having been amended, but do check before going ahead.

You don’t make a joint claim for HB. Only tax credits and in some cases JSA require a joint claim. The other “public funds” benefits which are means-tested have special provisions in them to ensure that there is no possibility of a couple amount in these circumstance, but it’s a have-your-cake-and-eat-it sort of way.
Thus, the lawfully resident person has an applicable amount as if they were a single person rather than claiming for a couple. However, they do in fact have a partner and thus can’t get any extra amounts that might apply to single parents (on the whole, not a problem now). More to the point, aggregation of capital and income is still used, so the partner’s earnings, if working legally (as a person on a spouse visa may well be) is taken into account.