Can anyone confirm the Rightsnet news story that Tax Credits are public funds (according to a Government website which can't spell available)? Surely it would take Parliamentary action to alter Section 115 of the Immigration and Asylum Act 1999 (if that's where the list comes from)?

hi andrew -

been doing a bit of digging around ...

the list is not provided for in section 115 but is in the immigration rules ... the mechanism for changing the imm rules seems to be via 'statements of changes to the Immigration rules' ... however the last statement published to the IND site (@ http://194.203.40.90/default.asp?PageId=3185) is april 2004

we're checking further whether there have been any post-april statements and will post a further update here

in the meantime, i will update the news story to say that we're checking it out

cheers - shawn

I looked into this for a client last year and understood the position is the same as it was for WFTC. If you go to the IND home page and type - "public funds" definition - into the search box you will come up with a ref. to Annex W, which is the list of public funds.

Needless to say, this list has not been updated and still contains WFTC and DPTC, but no reference to CTC or WTC! However, it has a para. 2.3 which makes it clear that WFTC was not public funds in certain family situations. My client was within this situation (she was British and her husband a non-EU overstayer) and - after a lot of delay and chasing - was given CTC & WTC. However, as I understand it, a single parent who is subject to the "no recourse to public funds" rule could not claim WTC or CTC.

Stop press - CPAG have clarified with the Home Office that the list of what constitutes public funds has not been updated to include the new tax credits.

The information contained on the Home Office and Foreign and Commonwealth Office 'UK visas' website is therefore wrong.

So this means that a lone parent who is subject to the "no recourse to public funds" rule, or a couple who are both subject to the rule, can claim CTC (and - if working - WTC) even though they cannot claim Child Benefit. Seems illogical somehow! Is this really the case? Has anyone any experience of clients getting tax credits in these circumstances?

I know someone getting CTC/WTC but not child benefit.

Hello - has there been any further news on this - is it correct to assume that CTC cannot be treated as public funds?

I may be way off here but i can't help thinking that it doesn't matter that CTC or WTC are not listed in the Immigration Rules as public funds. My reasoning is:

Firstly if you have leave to enter or remain in the UK subject to a condition that you do not have recourse to public funds you are a person subject to immigration control (s.115(9)(b)) regardless of whether the benefit concerned is listed in section 115(1) or in the immigration rules.

The Tax Credit (Immigration) Regulations 2003 SI 2003 No 653 then provide for the conditions in which a person subject to immigration control can access WTC and CTC. The state at reg 3 that "No person is entitled to child tax credit or working tax credit while he is a person subject to immigration control, except in the following cases..."

Following this logic, they do not need to list CTC or WTC as public funds as the restriction on entitlement is found in the TC regs.

tim ... isn't the situation you've described the same as for income support, for example .... which is a public fund

ie if you're "subject to immigration control" as defined because you've got a "no recourse to public funds" restriction, you can only get benefit if you fall into one of the excepted categories provided for, this time in the Social Security (Immigration and Asylum) Consequential Amendments Regulations 2000 (SI.No.636/2000)

Shawn - i may have completely missed your point but yes it is similar. 636/2000 specifically lists circumstances where for example groups who have a no recourse condition can get IS etc.

My point is that whether or not CTC and WTC are public funds entitlement is effectively restricted unless within the circs in the regs.

Isn't the absence of the listing of CTC and WTC as public funds not an entitlement issue but rather an immigration issue? i.e. if someone manages to circumvent the restrictions on entitlement even though they are a PSIC, this may not be a breach of the immigration rules because they are not public funds. However, it would surely require an error in the first place to award CTC/WTC unless they come within the excepted groups.

It matters a lot to couples where one is a PSIC and the other isn't. If the non PSIC claims Tax Credits they are treated as as if both are non PSICs. If tax Credits were public funds it would make a mockery of this provision as it would have no use ie they still couldn't claim because of the risk of deportation.

Agree, but surely the potential problem is limited to childless couples because the presence of children would mean no additional public funds (ie the amount of WTC/CTC would be the same whether or not the partner was there or not)

What about the couple element of WTC? That would be additional public funds. And there are quite a few childless couples around...

I wouldn't think that the couple element is a problem for those with children as it shouldn't be an additional fund. The non-PSIC would otherwise be entitled to the same amount as a lone parent.

At present, tax credits are indeed not a public fund. The list of these is, as already mentioned, to be found at Immigration & Asylum act 1999 115 (1). If it's not on the list, it's not a public fund.
Also, it may be worth looking at Tax credits (Immigration) Regs 3(2).

Our sources suggest that there is a plan to introduce a statutory instrument that will, amongst other things, make it a public fund but we have no idea when.

That's all there is to it, not on the list = not a public fund.

What I've been finding, though, is that for all of my clients who have married asylum seekers or people subject to Immigration control in the normal way a peculiar thing happens. Their cases experiences (and I quote) "Exceptional Technical Problems". All of them. Every last one. The office in Preston has not, as yet, bothered to disclose what these technical problems are, they appear to be so technical that no one I've since spoken to can tell what they are.

Has anyone else had similar 'technical problems'? If so, have they been resolved? If so has anyone managed to get as far as a complaint to the adjudicator yet & what was the outcome?

Any insight would be appreciated.

Our benefits franchise supervisor, Chris Hughes, has spent some time looking into this issue and I've taken the liberty of posting the entire memo he circulated on the topic. It's a bit long, but it is pretty complete and doesn't seem to leave much out.

SUBJECT: TAX CREDITS AND PUBLIC FUNDS.

I gather that there was a measure of disagreement as to the status of Tax Credits in the Immigration Rules. Specifically: are they “public funds”? This memo seeks to resolve that issue.

The issue relates to benefit entitlement for a “person subject to immigration control” (“PSIC”). There are 4 groups of such persons, but the one relevant to this issue is that group of people who have been granted leave to enter or remain in the UK subject to a condition that they do not have “recourse to public funds”.

There is considerable scope for confusion on this issue, because a person in this situation is affected by 2 entirely different sets of rules – benefits rules & immigration rules. It is important to be clear about the distinction.

The Benefits Rules

Under these rules (specifically Regulation 3 of the Tax Credit (Immigration) Regulations 2003) the general rule is that a PSIC is not entitled to Tax Credits. This rule has nothing to do with “public funds”, which is a concept that exists only in the immigration rules (see below).

Therefore, for most people in this situation, the issue of whether Tax Credits are or are not “public funds”, for the purpose of the immigration rules, is irrelevant. Under the benefits rules they are not entitled anyway.

However, the above mentioned Tax Credit Regulations list 4 specific groups of people who are exempt from this general rule. I set out more detail on this below. A person in one of these groups can be entitled to one or other or both of the Tax Credits – under the benefits rules, that is. In addition, a PSIC who is the spouse of a person who is not a PSIC is in a special position. This is also covered below.

The Immigration Rules

As everyone knows, if a PSIC claims a benefit – including a Tax Credit – the fact that they have done so is brought to the attention of the Home Office who check whether, under the Immigration Rules, the person is in breach of any condition that they do not have recourse to “public funds”.

The Immigration Rules (specifically HC 395. paragraph 6) contain a list of benefits that have been designated as “public funds”. At the time of writing that list includes all benefits apart from health/education benefits, contribution based benefits, Non-Contributory Incapacity Benefit & Tax Credits. Accordingly, any PSIC who is currently eligible to claim a Tax Credit under the benefit rules does not fall foul of the immigration rules.

Forthcoming Changes

As Paul Bradshaw reported last week, the Government plan to introduce an amendment to the Immigration Rules that adds Tax Credits to the list of “public funds”. This may have implications for the various groups who are currently eligible, under the benefits rules, to claim them. The 4 groups are:

• Sponsored immigrants who have been in the UK for more than 5 years
• Sponsored immigrants who have been in the UK for less than 5 years whose sponsor has died
• People with limited leave who depend on funds from overseas, whose source of funds is “temporarily disrupted”
• Turkish Nationals who are “lawfully present”

It is to be hoped, of course, that the amendment to the Immigration Rules will protect these groups. We will have to see what it says.

The position of spouses

(This issue has been very helpfully researched & analysed by Chris Cawley)

Where only one of the members of a married or unmarried couple is a PSIC (note that this does not include polygamous unions) the claim is decided as if neither of them were. In other words the spouse of a person who is not a PSIC is also exempt from the general rule in the Tax Credit Regulations. S/he can, under the benefit rules, be party to a claim for Tax Credits. For a person in this situation a particular issue arises.

If a person claiming Tax Credit becomes part of a “married or unmarried couple”, that is a change of circumstances that the person has to report. When s/he does so the claim ceases. A new – joint – claim may be made. At this point the couple have a choice. Either they do not claim, or they do. Under the benefit rules they would be entitled to a joint claim.

At the present time the 2nd option is not a problem, but the anticipated amendment to the Immigration Rules would appear to make it a very serious problem. I believe that this is the main reason why Paul Bradshaw raised the issue. Existing or would-be spouses are a potentially large group.

Again, it is to be hoped that the amendment will protect people in this situation, but there is no basis for confidence on this point.

The foregoing is derived from my understanding of the various legislative sources, but I make no claim to infallibility, & if anyone can demonstrate an error it is, of course, vital that they do. If anyone thinks that any of this is mistaken, please let me know & I will gladly issue a correction. If anyone does identify an error it would be helpful if they could demonstrate it by reference either to the legislation itself or other authoritative source.

Really helpful thank you

But out of date now? Any chance of an update now that TCs are public funds and an extra fiddly bit was done that I've never understood, and also to address HB/CTB issues with partners?

I'm not asking much am I??