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McGill & Co is a Scottish immigration law firm specialising in UK immigration, nationality and refugee law.

UK spouse/partner visas - access to benefits

23 March 2020 Jack Freeland Blog

Spouse visas are granted on the condition that the successful applicant can have’ No recourse to public funds (NRFP)’ in the UK. There is often confusion around what is meant by ‘public funds’ and what benefits fall under this definition, with many migrants are worried about the possibility of jeopardising their immigration status by claiming certain benefits. In this article we outline the rules on access to benefits for non-EEA spouses in UK, and answer some of their key questions.

What benefits cannot be claimed on a UK spouse/partner visa?

Public funds include a range of benefits that are given to people on a low income, as well as housing support. The term ‘public funds’ is defined in paragraph 6 of the Immigration Rules as including:

  • attendance allowance;
  • carers allowance;
  • child benefit;
  • child tax credit;
  • council tax benefit;
  • council tax reduction;
  • disability living allowance;
  • discretionary support payments by local authorities or devolved administrations in Scotland and Northern Ireland which replace the discretionary social fund;
  • housing and homelessness assistance;
  • housing benefit;
  • income based jobseeker’s allowance;
  • income related employment & support allowance – ESA (IR);
  • income support;
  • personal independence payment;
  • severe disablement allowance;
  • social fund payment;
  • state pension credit;
  • universal credit;
  • working tax credit.

UK spouse/partner visa holders are therefore not entitled to claim the above benefits.

What benefits can be claimed on a UK spouse/partner visa?

‘Public funds’ does not include benefits that are based on National Insurance contributions. Benefits to which a person is entitled as a result of National Insurance contributions include:

  • contribution-based jobseeker’s allowance;
  • guardian’s allowance;
  • incapacity benefit;
  • contribution based Employment and Support Allowance (ESA);
  • maternity allowance;
  • retirement pension;
  • statutory maternity sick pay;
  • statutory sickness pay;
  • widow’s benefit and bereavement benefit.

Whilst these are the main benefits that can be claimed by those on a UK spouse visa, this is not an exhaustive list. If you are in any doubt you should check the definition of public funds in Paragraph 6 of the Immigration Rules. Where the benefit is not included under this definition, it should not be considered as a public fund for immigration purposes.

It should be noted that state funded schooling is also not considered to be a ‘public fund’, and al foreign national children of compulsory school age thus have access to state school education.

Can my British partner claim benefits?

In short, yes. 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.

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

What about the NHS?

The Department for Health has its own rules on whether people who are not ordinarily resident in the UK can receive free NHS treatment, and it does not count as public funds for the purpose of the Immigration Rules whether it is paid or unpaid.

In any case, UK spouse/partner visa holders are fully entitled to access the NHS, and they have paid for the privilege of doing so by way of their Immigration Health Surcharge (IHS) payment at the time of application.

Our advice is to always exercise caution when seeking to claim benefits as the holder of a UK/spouse visa. In most cases, you will not be able to claim UK benefits and should check with an immigration adviser before proceeding. If you have any concerns or questions about your entitlement to UK benefits, please do not hesitate to contact us and we would be happy to assist.

 

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