Spousal Visa Access To Benefits

Spousal Visa Access To Benefits

The term ‘benefits’ includes a wide range of public funds, including universal credit, child benefit, and housing benefit.  If you are currently living in the UK on a Spouse Visa, you may be wondering if you are entitled to access public funds.  Understandably this is a significant cause of confusion for many immigrants who are unsure of their position and do not wish to jeopardise their immigration status.

In this article, we will outline the immigration rules for those on a Spouse Visa in relation to benefit entitlement and any exceptions which apply.

What benefits are covered by the term ‘public funds’?

There are a wide range of benefits available in the UK for those on a low income, to assist with costs associated with children, housing, care, income, disability, and other needs; these include:

•    a social fund payment
•    an allocation of local authority housing
•    attendance allowance
•    carer’s allowance
•    child benefit
•    child tax credit
•    council tax benefit
•    council tax reduction
•    disability living allowance
•    domestic rate relief (Northern Ireland)
•    housing benefit
•    income support
•    income-based jobseeker’s allowance
•    local authority homelessness assistance
•    personal independence payment
•    severe disablement allowance
•    state pension credit
•    universal credit
•    working tax credit

Some benefits, however, are not classified as ‘public funds’, but rather are based on your personal National Insurance (NI) contributions (which are paid alongside your income tax); these include:

•    contribution-based jobseeker’s allowance
•    incapacity benefit
•    retirement pension
•    maternity allowance
•    widow’s benefit and bereavement benefit
•    guardian’s allowance
•    statutory maternity pay

There are a number of other exceptions to the ‘public funds’ rule, including housing provided by a housing association.

Can I claim benefits if I hold a spouse/partner Visa?

Most non-EEA nationals subject to immigration control, including those holding a Spouse Visa in the UK are not eligible to claim benefits.  You will most likely have a specific condition – “No recourse to public funds (NRPF)” on your Spouse/Partner Visa which restricts access to public funds.  This is also referred to as an NPRF restriction.  If you have leave to enter or remain with the NRPF condition, ‘no public funds’ will be stated on your residence permit, entry clearance, or biometric residence permit (BRP).

Are there any circumstances in which the ‘no recourse to public funds condition’ can be lifted?

Yes, Home Office officials have the discretion not to impose (or lift) the NPRF restriction if you meet the requirements of paragraph GEN.1.11A of Appendix FM or paragraph 276A02 of the Immigration Rules, which state:

•    having provided satisfactory evidence that they are destitute or there is satisfactory evidence that they would be rendered destitute without recourse to public funds
•    having provided satisfactory evidence that there are particularly compelling reasons relating to the welfare of a child on account of the child’s parent’s very low income
•    having established exceptional circumstances in their case relating to their financial circumstances which, in your view, require the no recourse to public funds condition code not to be imposed or to be lifted

You will be considered ‘destitute’ if you have no adequate accommodation (or the means to obtain it) or if you do have adequate accommodation (or the means of obtaining it), but you cannot meet your other essential living needs.  Other factors including whether you have a physical or mental disability may be taken into consideration.

The guidance clearly states that the Home Office official must “consider all relevant personal and financial circumstances raised by the applicant, and any evidence of these which they have provided….Whether to grant leave subject to a condition of no recourse to public funds, or whether to lift that condition where it has been imposed, is a decision for the Home
Office decision-maker to make on the basis of this guidance”.

Can my UK partner claim benefits?

If you are restricted from accessing public funds, this does not prevent your UK partner from doing so.  That said, the amount of benefit your UK partner can claim may be affected (up or down) because the entitlement of a couple differs from that of an individual.  Your income may lower the amount of available benefit, but on the contrary, if you do not work, it may increase.

What happens if I claim benefits I am not entitled to?

Claiming benefits when subject to immigration conditions may impact your legal immigration status and any future applications, including extensions and ILR.  If you are unsure if you are entitled to access public funds, either because you are not aware of any specific restrictions on your Visa, or you are unsure if they type of benefit you are seeking is included in the definition of ‘public funds’, it is imperative to seek legal guidance before you proceed.  

Likewise, if you have claimed for a benefit while under the NPRF restriction, it is important to seek the advice of  immigration Solicitors as soon as possible.

Can I claim benefits if I have Indefinite Leave to Remain (ILR)?

Typically, once you have Indefinite Leave to Remain (ILR) (as opposed to Limited Leave to Remain), you should be eligible to access public funds without any restriction.  Even so, don’t make this assumption.  Check if you have any conditions on your Visa, and if you are unsure, ask your Home Office case officer or an immigration Solicitor.  

Final words

Anyone subject to immigration controls should work on the assumption that they are not entitled to access public funds unless they know otherwise.  If you have specific circumstances which may mean your NPRF restriction should be lifted, or if you think you may have breached this restriction, it is important to seek the professional guidance of immigration Solicitors.  And remember, not all benefits are included in the definition of ‘public funds’; it is, therefore, important to check first.

The harsh reality is that at present, the UK Government is unlikely to move towards a less restrictive policy on access to public funds for those holding Spouse Visas.  We will keep you updated with changes to immigration policy which may affect you over the coming months. 

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