What help for the UK’s stranded?

Our office has been asked to provide support to an American
woman and her British child because she can’t get benefits. Is that
right?

People who enter the UK because of a relationship with a British
citizen which later breaks up will find gaining benefits and
support difficult. Gary Vaux explains a highly complex
situation.

It looks as if the American woman has limited leave to remain in
the UK. The client entered the UK to marry her British boyfriend.
The marriage ended because of his violence after only 11 months.
The client has attempted to claim benefits, plus child support from
her ex-husband. At present, she is in a women’s refuge, and is
living on charitable payments and child benefit.

The client has limited leave to stay in the UK and may not have
recourse to “public funds”, as she is subject to immigration
control. Support under section 17 of the Children Act 1989, which
can include cash help, is not defined as “public funds” however. It
would be hard to see a situation where a homeless and penniless
family, at risk of violence, and with a small child, would not be
in need as defined in the Children Act.

My reading of the Immigration and Asylum Act 1999 (IAA) suggests
that the client is not prevented from getting section 17 payments
by virtue of her immigration status either. Section 122 of the IAA
bars local authorities from making section 17 payments to families
who come under section 95 of it, which applies to asylum seekers.
The IAA also amends section 21 of the National Assistance Act 1948
to prevent local authorities supporting adults too. The client is
not an asylum seeker, and so neither of these exclusions apply to
her.

Section 115 of the IAA defines persons subject to immigration
control, and excludes them from state benefits (unless they are in
exempt groups). This section does not prevent local authorities
from making section 17 payments.

A recent test case also supports the client’s right to support
under the Children Act, even if the local authority thought it was
reasonable for her to return to America (R v Barnet Council, ex
parte Roda Guleed).

In that case, the court ruled that a local authority was obliged
under the Children Act to house and support a mother and child, if
the child’s best interests were to remain with the mother and the
child was in need, even if the local authority considered the
mother’s refusal to return to her country of origin was
unreasonable.

Regarding benefits, the client can’t get income support or
housing benefit because she is a person subject to immigration
control and is not in an exempt group. She does not satisfy the
conditions for “urgent cases” payments of income support. She can,
however, claim child benefit because she is a family member of a
British citizen (the child).

Unfortunately, the child is not eligible for other benefits in
his or her own right, in spite of being a British citizen (children
under 16 can not claim income support for themselves).

Persons subject to immigration control whose marriages have
broken down owing to violence, are usually given limited leave to
remain in the UK. They may eventually be granted indefinite leave
to remain. If the client is granted indefinite leave to remain, she
will be eligible to claim benefits for herself and the child.

Meanwhile, until her immigration status changes or her
ex-husband starts supporting his family, or she is able to secure
paid employment, it would appear that she has no means of support
available to her other than child benefit and section 17 money.
This is yet another example of how social services are plugging
gaps in the welfare state.

Gary Vaux is head of money advice, Hertfordshire Council. He
regrets that he is unable to answer queries in person, either by
post or by telephone. If you have a question to be answered in
Welfare Rights please write to him c/o Community Care.