TCTM02105 - Entitlement: Immigration rules

People who are subject to a maintenance undertaking

The Tax Credits (Immigration) Regulations 2003, Reg. 3(1), Cases 1 and 2

A person whose leave to enter, or remain in, the United Kingdom is subject to a maintenance undertaking is normally excluded from WTC and CTC. But they can qualify for tax credits if:

• they have been resident in the United Kingdom for a period of at least 5 years beginning on or after their date of entry into the United Kingdom or the date on which the maintenance undertaking was given, whichever is the later; or
• the person who gave the undertaking has died, or, if more than one person gave the undertaking, all of them have died.

The residence test here will be satisfied if a person has lived in the UK permanently for a period of at least five years since the later of their date of entry into the UK or the date on which the maintenance undertaking was given. A person lives in the UK permanently if they are physically present here on a continuing basis, although absences for trips such as short holidays or business trips should be ignored.

In deciding whether a person has been here on a continuing basis, the following rules should be applied. A person should not be treated as being here on a continuing basis if

• they have been abroad for a continuous spell of 6 months or more; or
• they have been present in the UK for less than 3 months out of any 12 month period. (The 12 month period does not have to be a tax year. If the person has been present in the UK for less than 3 months out of any 12 month period, they should not be treated as being here on a continuing basis.)

Note that the period must be a complete period of five years or more, without interruption. A person who had been resident in the UK for two two-and-a-half year periods interrupted by a period when they were not resident in the UK would not qualify.