Public Funds Part 2: Claiming Child Benefit
In this second post, following on from Public Funds Part 1: Public Funds and Coronavirus we examine the one benefit that can potentially be claimed by migrants subject to the no recourse to public funds condition – child benefit.
Claiming Child Benefit – Entitlement
When applying for further leave to remain or indefinite leave to remain, questions the forms almost inevitably ask are whether public funds have been claimed.
In the Public Funds guidance, version 14.0 published for Home Office staff on: 07 January 2019 child benefit is a public fund, but there are exceptions to those who can claim this. They are set out at page 21 and 22 of the guidance.
The general rule is that no person subject to immigration control is entitled to child benefit (Section 115 of the Immigration and Asylum Act 1999, sub-sections (1) and (3)). However, a person falling under one of the following exceptions cannot be denied child benefit on the ground they are subject to immigration control.
Exception 1 A person who has been given leave to enter, or remain in, the United Kingdom by a maintenance undertaking by another person or persons (pursuant to the immigration rules within the meaning of the Immigration Act 1971).
Exception 2 Nationals of a state with which the European Community has concluded an agreement for equal treatment for workers in the field of social security who are lawfully working in the UK. Note: countries which are covered by such agreements are Algeria, Morocco, San Marino, Tunisia, and Turkey
Exception 3 Persons who are the family member of a person who is a UK, EEA, or Swiss national. The parent of a British child will not be excluded from entitlement to child benefit on the ground that they are subject to immigration control. However, if a child benefit claimant has a right to reside in the UK as a Zambrano-type carer they are excluded from entitlement to child benefit by virtue of the Child Benefit (General) Regulations 2003.
Exception 4 A national of, or a person who has come to live in the UK from, a country that has a reciprocal social security agreement with the UK which covers child benefit. Countries that have such an agreement are Barbados, Canada, Israel, Jersey and Guernsey, Mauritius, New Zealand and the former Yugoslavia (i.e. applies to Croatia, Bosnia-Herzegovina, Serbia, and Montenegro, and the former Yugoslav Republic of Macedonia).
Exception 5 Persons who were entitled to child benefit before October 1996 are not excluded from entitlement to child benefit because they are subject to immigration control.
There are also exemptions for those of certain nationalities.
Therefore, many families, subject to immigration control, can still claim child benefit for their British child or British children without breaching the conditions of no recourse to public funds.
Note: The information in this post was correct at the date of publication. Since this post was published, the Home Office guidance was updated on 12 June 2020 to Guidance – Public funds – v15.0. Exception 3 is now updated and reads:
“Exception 3
A person who is the Family Member of an EEA or Swiss national who is a Qualified Person. A Qualified Person is:
- an EEA or Swiss national person who is living in the UK as any of the following:
• Jobseeker (for specific timeframes)
• Worker
• Self-Employed person
• Self-sufficient person
• Student - a person who is a Family Member of a British national where they have resided together in another Member State, the British national was a Qualified Person in that Member State (in the same way that an EEA or Swiss national would be a Qualified Person in the UK as described immediately above), and they have returned to reside in the United Kingdom”.
Children’s Society Report – May 2020
The Children Society published a report A Lifeline for All Children and Families with No Recourse to Public Funds May 2020. The introduction sets out the background to the report:
This report builds on The Children’s Society’s ‘Making Life Impossible’ report which looked at the experiences of destitution among migrant children (Dexter et al., 2016). In this report we focus on the experiences of families who have NRPF conditions attached to their leave to remain in the UK and make a series of recommendations for policy, practice and further research. Among these are an urgent call on government to suspend NRPF conditions, immigration fees and Immigration Health Surcharge so families can access the lifeline of benefits if they need it and can prioritise any savings they have on protecting their children during the Covid-19 outbreak, instead of spending it on Home Office fees. The government should also automatically extend all leave to remain, including for those on the ten-year route to settlement whose home is here. While suspending NRPF is not the only change that is needed, it is an important way to provide some much-needed safety and security to children and parents in very desperate circumstances, including many of those who are key workers.
The report is timely in its publication given the Covid-19 situation and the very difficult economic circumstances many families find themselves in. The report acknowledges this:
“In the final stages of writing this report, the Covid-19 pandemic had spread rapidly, affecting families and communities across the UK, causing great heartache, loss and struggle. Though this pandemic will take an irreparable toll on millions of UK families, for some who lose their jobs or income, they will at least have access to the lifeline provided by mainstream benefits, however inadequate. They may be eligible for Universal Credit (UC), income-based Employment and Support Allowance, Local Welfare Assistance Schemes (LWAS)6 as well as ongoing support through housing benefit, Disability Living Allowance (DLA) and Child Benefit. Indeed, the Department for Work and Pensions figures showed that nearly a million successful applications for Universal Credit were made in the last two weeks of March 2020, when people were advised to work from home as the Coronavirus pandemic worsened7 . However, this vital support will not be accessible to thousands of children and families who are restricted from applying to the lifeline of mainstream benefits because of NRPF conditions, even during a crisis”.
The report considers the experiences of families with dependent children who have NRPF conditions on their leave to remain in the UK. The families have been granted leave under the Family and Private Life Migration Rules, and who face a ten-year route to settlement.
The report notes that many vulnerable families in our society are already disadvantaged by the NRPF conditions and face many other obstacles and poverty.
The report noted the following:
- Most of the families spoken to said while they had NRPF, they struggled to meet their children’s even most basic needs and struggled daily;
- Children missed out on other opportunities families get to enjoy;
- Families face accommodation problems and are liable to exploitation, which leads to difficulties in protecting the children and instability;
- Most families interviewed were single parents and the children had additional needs;
- Many parents had key worker roles;
- Destitute families had to access other safety net means;
- Families face the additional costs of the Immigration Health Surcharge and increasing application fees. Although applications for fee waivers can be made, the threshold is high and risks families becoming overstayers;
- There is no publicly available data on those with the NRPF condition;
The report notes the combination of stress and hardship can have a “significant detrimental impact on the health and wellbeing of the family”., The report continues: “It was alarming to hear about the very direct effect that these experiences had on the health and well-being of the children and their ability to participate effectively in their education and social development”.
The report refers to immediate plans that should be made, including calling on the government to suspend NRPF policy during the Covid-19 crisis, no conditions should be added to current grants of leave, charges for applications and Immigration Health Surcharge should be suspended for 12 months. There should be greater protection and there should be an extension to eligibility under the Domestic Violence Immigration Rule to any migrant survivor of domestic abuse so they can more easily secure a permanent status.
The report refers to longer term including not applying the NRPF conditions to parents with leave to remain in the UK where they have children under 18 years old. Fees should be reduced to the cost price for children. The ten year route to settlement should be abolished and reduced to five years. The deadline for the EUSS should be extended.
We wait to see whether any of the recommendations will be implemented. In the meantime families can apply to have NRPF conditions lifted through a Change of Conditions application, which we will examine in the next post Public Funds Part 3: How to apply for a change of conditions to allow access to public funds.
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