CBTM10120 - Residence and Immigration: Immigration - People subject to immigration control

Section 115 of the Immigration and Asylum Act 1999, sub-section (9).

A person subject to immigration control is defined by section 115(9) of the Immigration and Asylum Act 1999. A person subject to immigration control is defined as a person:

  1. who requires leave to enter or remain in the UK but does not have it. (For example, this covers overstayers, illegal entrants, people who are subject to a deportation order, those allowed temporary admission to the UK and anyone whose immigration status has yet to be determined, or an EEA or Swiss national who has not applied for pre-settled or settled status under the EU Settlement scheme).
  2. who has leave to enter or remain but subject to the condition that they do not have recourse to public funds. Limited leave to enter or remain subject to there being no recourse to public funds is given under section 3 of the Immigration Act 1971.
  3. who has leave to enter or remain which is given as a result of a maintenance undertaking. (They are sometimes known as ‘sponsored immigrants’). A ‘maintenance undertaking’ is defined by section 115(10) of the Immigration and Asylum Act 1999 as a written undertaking given by another person in pursuance of the Immigration Rules to be responsible for the maintenance and accommodation of the person in question.
  4. who has leave to enter or remain only because they are appealing against certain immigration decisions. Under section 61 of the Immigration Act 1999, a person with limited leave has a right of appeal against a decision to vary, or refuse to vary, their leave. A similar right is given to asylum seekers by section 69 of this Act. While any appeal is pending, the leave to which the appeal relates and any conditions subject to which it is granted continue to have effect.

A person subject to immigration control is generally, excluded from entitlement to public funds, which includes Child Benefit. Even if a person is subject to immigration control, they may still be entitled to Child Benefit. These people are set out in CBTM10140.

A person who requires leave to remain but does not have it (i.e. sub-para (a) above), cannot rely on one of the exceptions set out in CBTM10140 to be able to access Child Benefit. This is because of the case of Shah v London Borough of Barnet [1983] 1 All ER 226, where it was decided that a person cannot be “ordinarily resident” if the person’s presence in the UK is unlawful, e.g. in breach of the immigration laws. This is particularly pertinent for those who require pre-settled, or settled, status but do not have it.