It is well known that those who have been granted leave to remain (LTR) in the United Kingdom but who have a ‘no recourse to public funds’ condition attached to their leave (including those who have applied under Appendix FM of the Immigration Rules) would be in breach of that condition if they claim ‘welfare benefits’, which are defined as ‘public funds’ in the Immigration Rules. Moreover, a person in that position would come within the general exclusion to most welfare benefits and to tax credits as someone who is a ‘person subject to immigration control’ pursuant to section 115 of the Immigration and Asylum Act 1999 (and s 42 of the Tax Credits Act 2002).

What is less well known is that the Immigration and Asylum Act 1999 (IAA 1999) contains a power to exempt persons of specified categories or descriptions from the general exclusion (s 115(3)–(4)).  This is acknowledged in paragraph 6B of the Immigration Rules, which reads:

6B. Subject to paragraph 6C, a person (P) shall not be regarded as having recourse to public funds if P is entitled to benefits specified under section 115 of the Immigration and Asylum Act 1999 by virtue of regulations made under sub-sections (3) and (4) of that section or section 42 of the Tax Credits Act 2002.

The relevant regulations are the Social Security (Immigration and Asylum) Consequential Amendments Regulations 2000, SI 2000/636, as amended by SI 2013/1474.

Regulation 2 and the Schedule to the 2000 Regulations make provision for certain people not to be excluded from entitlement to benefits under section 115 of the Immigration and Asylum Act who would otherwise be excluded under that section. In particular, regulation 2(2) provides that a person will not be excluded from entitlement to certain non-means-tested benefits (including child benefit) by section 15 of the IAA 1999 Act if s/he falls within one of the categories or descriptions of persons specified in Part II of the Schedule.  Paragraphs1 and 2 read:

1. A member of a family of a national of a State contracting party to the Agreement on the European Economic Area signed at Oporto on 2nd May 1992 as adjusted by the Protocol signed at Brussels on 17th March 1993 as modified or supplemented from time to time.

2. A person who is lawfully working in Great Britain and is a national of a State with which the Community has concluded an agreement under Article 310 of the Treaty of Amsterdam amending the Treaty on European Union, the Treaties establishing the European Communities and certain related Acts providing, in the field of social security, for the equal treatment of workers who are nationals of the signatory State and their families.

The exemption in regulation 2(2) therefore covers a claimant who is subject to immigration control but who claims an entitlement to child benefit on the basis that they are a member of a family of an EEA national.  This includes a British child, as the United Kingdom is a State contracting party to the EEA agreement as, unlike the Immigration (EEA) Regulations 2006 (SI 2006/1003), the 2000 Regulations do not exclude the United Kingdom from its definition of an “EEA State”.

Given the above, if someone with leave to remain that is subject to a public funds condition is part of a family unit which contains a British child, they should be able to claim child benefit under this exemption and the Home Office should not consider this as recourse to public funds pursuant to paragraph 6B of the Immigration rules.

The exemption for non-means-tested benefits under regulation 2(2) of the 2000 Regulations also covers carer’s allowance, disability living allowance and personal independence payments.

If someone has been recognised as a Zambrano carer under Regulation 15A of the Immigration (EEA) Regulations 2006 (SI 2006/1003) they are excluded from claiming child benefit pursuant to the Child Benefit and Child Tax Credit (Miscellaneous Amendments) Regulations 2012 (SI 2012/2612) which came into force on 8 November 2012.

In JFP-v-Department for Social Development (DLA) [2012] NICom 267 the Chief Commissioner of Northern Ireland held that a USA national, whose husband was a British national who worked in the UK, was entitled to claim disability living allowance under paragraph 2 of Part II of the Schedule [35], [44]-[46] and [56], and declined to follow the restrictive approach adopted by a Deputy Commissioner in CDLA/708/2007.

Whilst a decision of a Commissioner in Northern Ireland is not formally binding, it is treated as having equal authority when it rules on identical provisions, see CCS/4994/2002, para [30] and Secretary of State for Work and Pensions v Deane [2010] EWCA Civ 699, para [26].