Home > yourrights > rights of immigrants/persons subject to domestic immigration controls > persons subject to domestic immigration controls
> No Recourse to Public Funds
No Recourse to Public Funds
Immigration Rules require a person arriving in the UK , whether to settle or for a visit, to be able to be maintained and accommodated without recourse to public funds. The only exemption is for the pre-existing families of recognised refugees.
The term “without recourse to public funds” is defined in Rule 6A of HC395:
“For the purpose of these Rules, a person is not to be regarded as having (or potentially having) recourse to public funds merely because he is (or will be) reliant in whole or in part on public funds provided to his sponsor, unless, as a result of his in the United Kingdom, the sponsor is (or would be) entitled to increased or additional public funds”
Public funds are exhaustively listed in Rule 6 of HC395. Any benefit not listed in Rule 6 is not considered to be public funds for the purposes of the Immigration Rules. For instance, incapacity benefit, education and health care benefits are not included in the definition.
The following are included:
Housing – accommodation as a homeless person and accommodation from a local authority register.
Benefits – income support/Income-based Jobseeker’s Allowance, Housing Benefit, Council Tax Benefit, Attendance Allowance, Severe Disablement Allowance, Carer’s Allowance, Disability Living Allowance, State Pension Credit, Child Tax Credit and Working Tax Credit.
Although child benefit is defined as a prohibited public fund in the Immigration Rules, the Home Office IDIs state that, where a spouse is seeking entry to the UK, the settled partner may claim working families’ tax credit and child benefit to which they are entitled in respect of the spouse/partner and children without this acting to the detriment of the spouse seeking entry.
Maintenance must be “adequate”. The test is objective and equated to the level of support that a person in receipt of income support and housing benefit would be receiving.
These principles are set out in the case of Uvovo (00/TH/01450) 15 June 2000. The court held:
“(3.) …It appears to us that, generally speaking, it can be shown that the family will be no worse off than a family drawing Income Support, the Respondent cannot properly argue that they will not be adequately maintained. Income Support is what would be provided for the family if they were British residents of the United Kingdom with no other resources: it is not suggested in the rules that family members seeking immigration should be better maintained than those who are already here; and the government can hardly say that the level of support it provides for its destitute citizens is not 'adequate'. What the recipient or holder of the funds spends money on is his own business. We should in general take the view therefore that if the Appellants can show a level of income at the lncome Support level or higher, that will be enough. It may not be an absolutely rigorous test, but it is a very good guide to what is 'adequate'.
(4.) It is, however, essential to maintain comparability. Income Support carries entitlement to a number of other benefits and, in particular, a family on Income Support will be able to obtain 'Housing Benefit'. The appropriate comparison is therefore between the Income Support level on the one hand and the family income net of accommodation costs on the other. (There are other Benefits to which Income Support is a 'gateway', such as free school meals and free prescriptions. These not always to be ignored, particularly where those seeking entry are of school age or have some medical condition.) It follows that, although we should be slow to enquire into the Sponsor' spending habits, we need to be satisfied that, at the date of decision, his income after paying his rent was sufficient to maintain himself and his wife. As a guide, we would require his income, net of rent, to reach a level of about £70.00 per week - the approximate Income Support level for a married couple.”
3rd Party Support:
It used to be acceptable for a 3rd party to contribute to the level of the required maintenance in order to meet the rules. This approach was confirmed by the High Court in the case of Arman Ali [2000] INLR 89.
The court, however, reconsidered the issue in the case of AM (3rd party support not permitted R281(v)) UKAIT 00058, which was a case of the entry clearance for a spouse whose sponsor wife was in receipt of benefits such as income support and disability living allowance who argued that her husband would be supported by a combination of money from her benefits and money provided by a daughter and a cousin who were both providing a substantial sum of money each month. The AIT held that the reference in the Rules (para. 281(v)) to the parties having to “maintain themselves” meant that 3rd party support was excluded: a couple had to show that they could maintain themselves out of their own resources; money provided by the cousin and daughter could not be taken into account in deciding whether the Rule was satisfied.
Specifically, the AIT stated:
“22. We are aware of the view, widely supported by those representing appellants, that because the rules are silent on whether third party support is permissible, it must necessarily be so. We take the opposite view. The issue of maintenance is of importance in many of the immigration rules. Had it been intended that third party support should satisfy a maintenance requirement we would expect the rules to say so and to set out the way in which such maintenance might satisfy the requirement.”
Further, the rules on children visas are specific as to who may provide support and do not allow 3rd party contributions to be taken towards the acceptable level of maintenance test.
Adequacy of accommodation:
Accommodation must be adequate for the person coming to the UK other than in the student category. There are two factors to be taken into account in assessing adequacy of accommodation.
1) The sponsor must “own or exclusively occupy” the accommodation in family cases.
The IDIs provide that: “Accommodation can be shared with other members of a family provided that at least part of the accommodation is for the exclusive use of the sponsor and his dependants. The unit of accommodation may be as small as a separate bedroom but must be owned or legally occupied by the sponsor and its occupation must not contravene public health regulations and must not cause overcrowding as defined in the Housing Act 1985”.
2) The accommodation must not be overcrowded with arrival of the Applicant. In the IDIs the test for whether a property will be overcrowded is based on the permitted number of persons in a room. There are two tests set out in the Housing Act 1985 for determining overcrowding. The Home Office in their instructions refer to the ‘space standard’ where the number of people that can stay in accommodation depends on the number of rooms available. A room must have a floor area larger than 50 Sq. ft. and normally used as a bedroom or living room. It relates number of rooms to number of persons, allowing for the fact that children aged between 1 and 10 years only count as half a person:
Rooms Persons permitted
1 - 2
2 - 3
3 - 5
4 - 7.5
5 - 10
with an additional 2 persons for each room in excess of 5.
The term “without recourse to public funds” is defined in Rule 6A of HC395:
“For the purpose of these Rules, a person is not to be regarded as having (or potentially having) recourse to public funds merely because he is (or will be) reliant in whole or in part on public funds provided to his sponsor, unless, as a result of his in the United Kingdom, the sponsor is (or would be) entitled to increased or additional public funds”
Public funds are exhaustively listed in Rule 6 of HC395. Any benefit not listed in Rule 6 is not considered to be public funds for the purposes of the Immigration Rules. For instance, incapacity benefit, education and health care benefits are not included in the definition.
The following are included:
Housing – accommodation as a homeless person and accommodation from a local authority register.
Benefits – income support/Income-based Jobseeker’s Allowance, Housing Benefit, Council Tax Benefit, Attendance Allowance, Severe Disablement Allowance, Carer’s Allowance, Disability Living Allowance, State Pension Credit, Child Tax Credit and Working Tax Credit.
Although child benefit is defined as a prohibited public fund in the Immigration Rules, the Home Office IDIs state that, where a spouse is seeking entry to the UK, the settled partner may claim working families’ tax credit and child benefit to which they are entitled in respect of the spouse/partner and children without this acting to the detriment of the spouse seeking entry.
Maintenance must be “adequate”. The test is objective and equated to the level of support that a person in receipt of income support and housing benefit would be receiving.
These principles are set out in the case of Uvovo (00/TH/01450) 15 June 2000. The court held:
“(3.) …It appears to us that, generally speaking, it can be shown that the family will be no worse off than a family drawing Income Support, the Respondent cannot properly argue that they will not be adequately maintained. Income Support is what would be provided for the family if they were British residents of the United Kingdom with no other resources: it is not suggested in the rules that family members seeking immigration should be better maintained than those who are already here; and the government can hardly say that the level of support it provides for its destitute citizens is not 'adequate'. What the recipient or holder of the funds spends money on is his own business. We should in general take the view therefore that if the Appellants can show a level of income at the lncome Support level or higher, that will be enough. It may not be an absolutely rigorous test, but it is a very good guide to what is 'adequate'.
(4.) It is, however, essential to maintain comparability. Income Support carries entitlement to a number of other benefits and, in particular, a family on Income Support will be able to obtain 'Housing Benefit'. The appropriate comparison is therefore between the Income Support level on the one hand and the family income net of accommodation costs on the other. (There are other Benefits to which Income Support is a 'gateway', such as free school meals and free prescriptions. These not always to be ignored, particularly where those seeking entry are of school age or have some medical condition.) It follows that, although we should be slow to enquire into the Sponsor' spending habits, we need to be satisfied that, at the date of decision, his income after paying his rent was sufficient to maintain himself and his wife. As a guide, we would require his income, net of rent, to reach a level of about £70.00 per week - the approximate Income Support level for a married couple.”
3rd Party Support:
It used to be acceptable for a 3rd party to contribute to the level of the required maintenance in order to meet the rules. This approach was confirmed by the High Court in the case of Arman Ali [2000] INLR 89.
The court, however, reconsidered the issue in the case of AM (3rd party support not permitted R281(v)) UKAIT 00058, which was a case of the entry clearance for a spouse whose sponsor wife was in receipt of benefits such as income support and disability living allowance who argued that her husband would be supported by a combination of money from her benefits and money provided by a daughter and a cousin who were both providing a substantial sum of money each month. The AIT held that the reference in the Rules (para. 281(v)) to the parties having to “maintain themselves” meant that 3rd party support was excluded: a couple had to show that they could maintain themselves out of their own resources; money provided by the cousin and daughter could not be taken into account in deciding whether the Rule was satisfied.
Specifically, the AIT stated:
“22. We are aware of the view, widely supported by those representing appellants, that because the rules are silent on whether third party support is permissible, it must necessarily be so. We take the opposite view. The issue of maintenance is of importance in many of the immigration rules. Had it been intended that third party support should satisfy a maintenance requirement we would expect the rules to say so and to set out the way in which such maintenance might satisfy the requirement.”
Further, the rules on children visas are specific as to who may provide support and do not allow 3rd party contributions to be taken towards the acceptable level of maintenance test.
Adequacy of accommodation:
Accommodation must be adequate for the person coming to the UK other than in the student category. There are two factors to be taken into account in assessing adequacy of accommodation.
1) The sponsor must “own or exclusively occupy” the accommodation in family cases.
The IDIs provide that: “Accommodation can be shared with other members of a family provided that at least part of the accommodation is for the exclusive use of the sponsor and his dependants. The unit of accommodation may be as small as a separate bedroom but must be owned or legally occupied by the sponsor and its occupation must not contravene public health regulations and must not cause overcrowding as defined in the Housing Act 1985”.
2) The accommodation must not be overcrowded with arrival of the Applicant. In the IDIs the test for whether a property will be overcrowded is based on the permitted number of persons in a room. There are two tests set out in the Housing Act 1985 for determining overcrowding. The Home Office in their instructions refer to the ‘space standard’ where the number of people that can stay in accommodation depends on the number of rooms available. A room must have a floor area larger than 50 Sq. ft. and normally used as a bedroom or living room. It relates number of rooms to number of persons, allowing for the fact that children aged between 1 and 10 years only count as half a person:
Rooms Persons permitted
1 - 2
2 - 3
3 - 5
4 - 7.5
5 - 10
with an additional 2 persons for each room in excess of 5.
