Working tax credits question?

[pencil]

Hope someone can help?
I am a British Citizen and my Wife is subject to immigration control and not allowed public funds and is currently still on FLR for 2 years. We have no children.

She is in employment however I am not in employment.

I would like to confirm it would not breach the conditions of her visa and would in no way jeopardize her application for ILR when the time comes, if we receive Working Tax Credits as we have made a joint claim and of course she ticked she was subject to immigration control and normally lives in the UK (as she now does of course)

I have been told it is fine to make a claim based on our circumstances and we have just been told the claim has gone though and we are getting the second adult element but am getting worried, as someone said we can apply but as your wife is subject to immigration control you can not receive the 2nd adult element as per below?

http://www.hmrc.gov.uk/manuals/tcmanual/tcm0284385.htm

Following a change in legislation from 6 April 2010, the second adult element of Working Tax Credits (WTC) will not be paid on a WTC only claim from a couple where only one customer is subject to immigration control and not a national of Croatia,

But then I have also read that Child and working tax credits are claimed jointly by couples. If only one member of a couple is subject to immigration control, then for tax credits purposes, neither are treated as being subject to immigration control.

So I am confused as surely if we are treated as if neither of us are subject to immigration control, ie like two UK Citizens for instance, then we should be able to get the 2nd adult element as we are meant to be treated like neither of us are subject to immigration control so why does it say the second adult element of Working Tax Credits (WTC) will not be paid on a WTC only claim from a couple where only one customer is subject to immigration control?

I also saw this thread below on the same subject but nothing about the 2nd adult element?

http://filipinaroses.com/showthread.php/45972-Working-tax-credit-and-child-tax-credit-award-advise-needed-to-make-sure-it-s-ok

Hope someone can help here?

[Terpe]

Here's what UKBA state :-


..A person subject to immigration control is not considered as accessing public funds if it is their partner who is receiving the funds they are entitled to.

Child and working tax credits are claimed jointly by couples. If only one member of a couple is subject to immigration control, then for tax credits purposes, neither are treated as being subject to immigration control.

A person subject to immigration control can claim certain public funds when they have a right to reside in the UK if they live with a family member who is:
- a British citizen, or
- a national of a country in the European Economic Area (EEA).

If you feel that any of the above puts you or your wife out of the scope then you must seek professional advice before claiming.
Everyone has different personal circumstances.
Your starting point should be DWP and UKBA to clarify yours.

The 'second adult element' applies if you're claiming as a member of a couple. You legally have to claim as a couple if you live with a partner. This includes same-sex partners as well as opposite-sex partners.

- Working Tax Credit is normally paid directly to a working claimant. In your case, this happens to be your wife, who also happens to be subject to immigration constraints.

- Normally, but depending on personal circumstances, a couple where one is subject to immigration
(and no claims for children) won’t normally get the couple element.
But you still need to make a joint claim. (This is a legal requirement)

From where I sit, it comes down to a question of legal precedents, but personally at the end of the day I would be uneasy at having my wife as the claimant receiving payment without sound legal advice.
If you were the main claimant (but still joint claim) and you were the one in receipt of payment there'd be no issues whatsoever.

Whenever claims are made for benefits the authorities must always be clearly made aware of the UKBA constraint of 'No Recourse to Public Funds' on any family member.

[pencil]

Thanks for the reply

Who do you think we should get legal advice from?

I wrote to UKBA and HMRC before claiming and UKBA wrote back and said that:

A person subject to immigration control is not considered as accessing public funds if it is their partner who is receiving the funds they are entitled to.

Child and working tax credits are claimed jointly by couples. If only one member of a couple is subject to immigration control, then for tax credits purposes, neither are treated as being subject to immigration control.

If you are in any doubt you should contact the department or agency that issues the benefit

HMRC said "where one member of a couple is subject to immigration control and the other one is not the couple should be treated as if neither of them are subject to immigration control. I can not advice if this will affect your wifes immigration status you will need to contact the Immigration Department who will advise on that."

SO I do not know? I really dont know what to do? Who should I get professional advice from? I mean I wrote to both places before making the claim for advice on the matter.


Here's what UKBA state :-



If you feel that any of the above puts you or your wife out of the scope then you must seek professional advice before claiming.
Everyone has different personal circumstances.
Your starting point should be DWP and UKBA to clarify yours.

The 'second adult element' applies if you're claiming as a member of a couple. You legally have to claim as a couple if you live with a partner. This includes same-sex partners as well as opposite-sex partners.

- Working Tax Credit is normally paid directly to a working claimant. In your case, this happens to be your wife, who also happens to be subject to immigration constraints.

- Normally, but depending on personal circumstances, a couple where one is subject to immigration
(and no claims for children) won’t normally get the couple element.
But you still need to make a joint claim. (This is a legal requirement)

From where I sit, it comes down to a question of legal precedents, but personally at the end of the day I would be uneasy at having my wife as the claimant receiving payment without sound legal advice.
If you were the main claimant (but still joint claim) and you were the one in receipt of payment there'd be no issues whatsoever.

Whenever claims are made for benefits the authorities must always be clearly made aware of the UKBA constraint of 'No Recourse to Public Funds' on any family member.

[pencil]

I also wanted to add to my question the following information which may help in answering my question,

In view of reg 3(2), Tax Credits (Immigration) Regulations 2003, for Tax Credits purposes only, both of the couple are treated as not subject to Immigration Control. Technically, even though Tax Credits is within the definition of Public Funds as defined in rule 6 of the Immigration Rules, in respect of this, as a couple one British spouse (myself) and one non-British (my wife), because of rule 6B, Tax Credits are not within the definition of Public Funds as stated in rule 6B and indeed the Tax Credits (Immigration) Regulations 2003.

http://www.legislation.gov.uk/uksi/2003/653/contents/made

[Terpe]

.....Who do you think we should get legal advice from? .....

I wouldn't necessarily agree that either UKBA or HMRC will provide accurate or meaningful advice.

The issue, imho, remains on the question of precedents.
1. A person subject to immigration control is not considered as accessing public funds if it is their partner who is receiving the funds they are entitled to.

2. Child and working tax credits are claimed jointly by couples. If only one member of a couple is subject to immigration control, then for tax credits purposes, neither are treated as being subject to immigration control.

If you ask UKBA or HMRC they will only ever state the rules. Period.

UKBA make decisions that often get challenged in the courts.
The Judge decides who is correct.

If you have a doubt you need to secure independent advice. Solicitor/Tax Consultant/Immigration Advisor who has experience or knows caselaw.

If you have time consider lodging a Freedom of Information question to:-
HMRC
DWP
UKBA
It's free and the information may be used to support any appeals.

You should not rely upon forum opinion. The outcome can be life impacting.

My advice is that if you have any doubts about the position then do allow your wife to claim

[pencil]

Thanks again,

I have taken your advice and have secured independent advice from an excellent OISC Immigration Advisor who has experience and knows caselaw and understands about benefits etc. She gave me alot of information and advice and the conclusion was she said the actual claim itself is not in breach of the terms of the visa so your not doing anything wrong

So I now have correspondence from HMRC and UKBA saying we can apply and now have secured independent advice from an excellent OISC Immigration Advisor who has advised us that our claim is not in-breach of my wife's visa. Not much more I can do now other than the freedom of information.