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HMRC internal manual

Tax Credits Manual

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HM Revenue & Customs
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Eligibility - residency and immigration: Immigration control - exclusion exemptions (Info)

The general rule is that people subject to immigration control aren’t entitled to Child Tax Credit (CTC) or Working Tax Credit (WTC). However, they can qualify for either, or both, of the tax credits if they satisfy the conditions for one (or more) of a number of exemptions from the general exclusion. These conditions are set out in the guidance that follows.

Note: The International Team needs to check all cases where any of the household reside outside the UK. You mustn’t clear any verification failures in this instance. Instead, you must pass the case to the International Team(This content has been withheld because of exemptions in the Freedom of Information Act 2000) .

People who are subject to a maintenance undertaking

A customer whose leave to enter, or remain in, the United Kingdom (UK) is subject to a maintenance undertaking (sometimes known as ‘sponsored immigrant’) is normally excluded from WTC and CTC as a person subject to immigration control, but they can qualify for tax credits if

  • they’ve been resident in the UK for a period of at least five years beginning on or after their date of entry into the UK or the date they became a sponsored immigrant, whichever is later
  • they haven’t been resident for at least five years but their sponsor has died or where there was more than one sponsor, where they have all died.

The customer will have been resident in the UK for a period of at least five years if they lived in the UK permanently for a complete period of five years or more. A person lives in the UK permanently if they’re physically present here on a continuing basis, although absences for trips such as short holidays or business trips should be ignored. A person shouldn’t be treated as being here on a continuing basis if

  • they’ve been abroad for a continuous spell of six months or more

or

  • they’ve been present in the UK for less than three months out of any 12-month period (the 12-month period doesn’t have to be a tax year).

People whose funds from abroad are disrupted

A customer whose leave to enter, or remain in, the UK is subject to there being no recourse to, or charge on, public funds is normally excluded from WTC and CTC as a person subject to immigration control, but they can qualify for tax credits if

  • they normally support themselves without recourse to public funds - for example, a student who’s receiving funding from abroad

and

  • funds from abroad for them are temporarily disrupted but there’s a reasonable expectation that the supply of funds will be resumed.

This exemption can only be used for a total of 42 days during any single period of limited leave.

Exemptions from immigration control exclusion (WTC and CTC)

Non-EEA states that have an agreement for equal treatment of workers in the field of social security and have ratified the ECSMA or the CESC are

  • Turkey.

Exemption from immigration control exclusion (CTC only)

Customers who are lawfully working in the UK and are nationals of states that have concluded an agreement with the European Community providing for equal treatment of workers in the field of social security can claim CTC. This is allowable even if they are subject to immigration control.

The requirement to be ‘lawfully working’ in the UK can be satisfied by a customer who doesn’t have a restriction on working in the UK and is either

  • working in the UK

or

  • has retired from work on reaching pension age or given up work to look after children or because of pregnancy, widowhood, sickness or invalidity, an accident at work or an industrial disease.

Non-EEA states that have an agreement for equal treatment of workers in the field of social security are as follows

  • Algeria
  • Morocco
  • San Marino
  • Tunisia.

and, for claims made prior to 1 May 2004

  • Slovenia (for guidance on how to treat Slovenian nationals who make a claim after 1 May 2004, use TCM0128140).

Exemptions from immigration control exclusion (WTC only)

Customers who are ‘lawfully present’ in the UK and are nationals of states that have ratified the European Convention on Social and Medical Assistance (ECSMA) or the 1961 Council of Europe Social Charter (CESC) can claim WTC even if they are subject to immigration control.

Non-EEA states that have an agreement for equal treatment of workers in the field of social security for claims made prior to 1 July 2013, namely Croatia.

For guidance on how to treat a national of this state who makes a claim after 1 July 2013, use TCM0128140.

Exemptions from immigration control exclusion (CTC-only transitional provision for IS and income-based JSA)

These exemptions are set out below under the following headings

  • Nationals of ECSMA or CESC countries
  • Asylum claims before 5 February 1996
  • Asylum claims before 3 April 2003.

Nationals of ECSMA or CESC countries

The exemption detailed under the earlier heading also applies to CTC where the customer was entitled to support for their children through Income Support or income-based Jobseeker‘s Allowance for the period immediately before they were first awarded CTC.

Asylum claims before 5 February 1996

A customer subject to immigration control can still claim CTC if they’re entitled to support for their children through Income Support or income-based Jobseeker’s Allowance for the period immediately before they were first awarded CTC provided they

  • had claimed asylum before 5 February 1996 and were entitled to Income Support immediately before that date or, on 5 February 1996, they were a member of the family or such a person

and

  • haven’t ceased to be an asylum seeker. (A person ceases to be an asylum seeker for these purposes when the Home Office makes a decision on their claim. They can’t continue to benefit from this transitional exception after such a decision even if they are pursuing an appeal against that decision).

Note: It doesn’t matter if a person has experienced a break in their entitlement to Income Support between 5 February 1996 and the date they start to receive CTC. They must be receiving support for their children through Income Support or income-based Jobseeker’s Allowance for the period immediately before they were first awarded CTC.

Asylum claims before 3 April 2003

A customer subject to immigration control can still claim CTC if they were entitled to support for their children through Income Support or income-based Jobseeker’s Allowance for the period immediately before they were first awarded CTC provided they

  • claimed asylum on arrival in the UK from outside the Common Travel Area and that claim was recorded as being made before 3 April 2000 (the Common Travel Area is the UK, Republic of Ireland, Isle of Man and Channel Islands. ‘Arrival’ doesn’t include re-entry to the UK)

or

  • are nationals of the Democratic Republic of Congo and claimed asylum between 16 May and 15 August 1997 (inclusive)

or

  • are nationals of Sierra Leone and claimed asylum between 1 July and 30 September 1997 (inclusive).

Note: This transitional protection only lasts for as long as the person continues to count as an asylum seeker. A person ceases to be an asylum seeker for these purposes when the Home Office makes a decision on their claim. They can’t continue to benefit from this transitional exception after such a decision, even if they’re pursuing an appeal against that decision.