Entitlement to benefits for UK visa holders



A recent story from the media concerns a cardiac physiologist, Paul Ermitano, and his wife Jamila, who are Philippines nationals residing in the UK. Mr Ermitano holds a Tier 2 General visa and his wife is his dependant, and they were told by the Home Office that they had to leave the UK because they were in breach of their immigration conditions.

It appears from the media reports that they had claimed child benefit for their young son in the mistaken belief that they were entitled to it. But when they discovered their mistake they refunded the money to the relevant Government agency.

However, the Home Office evidently took the view that the crime had been done and that restitution did not avail, and they curtailed the Ermitanos’ visas and said they had to leave the UK.

This happens to a lot of people and it does not get usually into the media but this time it did, presumably because a cardiac physiologist is eminently a highly skilled and very useful person (and we hasten to add that Jamila is a nurse, and also presumably quite useful).

Anyway, this story had a happy ending. The Home Office reconsidered its decision and has allowed them to stay after all. We cannot help noticing how helpful it is to get your story into the media. If the facts are compelling the Home Office – or indeed the Home Secretary himself – may scrutinise the decision more carefully than usual and make a favourable new decision. It appears that they do not want to appear in the media to be too heartless or too mindlessly bureaucratic.

But what are the rules about entitlement to benefits for UK visa holders? In the case of many migrants, whether in work, family or study categories, the dreaded words appear in the relevant immigration rule:

No recourse to public funds

The same words should appear on the migrant’s visa or biometric residence permit, and they mean what they say. Some people seem to think that “public funds” does not include child benefit, but it does. (The Home Office publishes a helpful list of what constitutes public funds and what does not: https://www.gov.uk/government/publications/public-funds–2/public-funds)

So not being in receipt of public funds is, for many categories of migrant, a condition of their immigration leave and, to look at it in a slightly different way, they are not in any case entitled to receive them. So if such a migrant applies for such public funds their application should be refused but, as we saw in this instance, sometimes the relevant Government agency incorrectly pays the benefit to the claimant. And, as we also saw, it is not necessarily a good defence for the claimant to say that they should not have been paid it because they were not entitled to it.

And there is a further aspect to the Ermitanos’ case. Mr Ermitano had a Tier 2, ie points-based system, visa. These days there is no right of appeal to the Immigration Tribunal against either the refusal of a points-based system visa application or against the curtailment of a points-based system visa.

So, unlike in previous times, it is no longer possible to make representations to an Immigration Judge about how the claimant did not realise they were in breach, how unfair it is and what a good contribution they make to British society and so on. Historically such cases could succeed, with the benefit of an Immigration Judge’s human touch.

In fact the legal landscape is now horribly harsh. The law does not require that the migrant had knowledge of the breach of immigration conditions (ie does not need to have had a “guilty mind”) and not only is there no right of appeal but there is not even any right of Administrative Review. It was no doubt only the media interest that helped the Ermitanos to succeed.

Bu there are some exceptions to the no recourse to public funds rule. The most obvious exception is EEA nationals and their family members. These migrants may claim those state benefits they are entitled to without sanction (with a few exceptions).

And there are various other exceptions where a foreign Government has a reciprocal agreement with the UK Government. In such cases a migrant from the relevant country may be able to legitimately claim benefits in the UK and not be penalised by the Home Office. This scheme is quite complicated, and you are advised to take professional advice if you think you may be able to benefit from it.

One thing is certain: it is best not to take any risks on this subject. The Ermitanos were not the only people who have worked hard and lived law-abiding lives, only to discover that they were in breach of conditions concerning benefits, the consequences of which can be very serious.

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