Claiming Super living in UK but not a dual citizen

[Ian Horner]

I have been looking for an answer to my query everywhere without success so here goes. I moved to Australia on a permanent residency visa subclass126 from the UK in 1996. I lived and worked in Sydney until 2004 when I returned to live in the UK after loosing most of my savings in a mortgage scam. I was fully employed and my employers paid into my Australiansuper account with whom I have remained in contact with and have received a six monthly statement from them since leaving Australia. I recently turned 65 so I assumed I was eligible to withdraw money from my fund. I filled in their forms and provided all the verified proofs of identity but was then asked for proof of my citizenship or valid permanent residency. I didn't aquire dual citizenship and my visa has obviously expired so I only have an old expired visa to present to them. I have enquired as to my residency status and have been informed that once you are granted  permanent residency then as the visa states it is permanent, only the right to return is removed if the visa is not renewed after five years. So the question is, do I have an entitlement to my fund and if not what happens to it? Of course no further payments have been made into my fund since I left Australia but the fund has grown over the years and is a major contributor to my retirement plans. All the information online tends to lean towards regaining entry to Australia after a visa has expired. Any advice at all would be much appreciated as my super fund just responds with a stock reply requesting a valid permanent visa when I explain the situation. Thanking anyone in advance.....Ian

[Marisawright]

You are right, you are entitled to the money from the fund.  The important thing is that you were a member AT THE TIME you made the contributions.  So that is not a problem - if the super fund says it is, they are wrong, so argue with them.  If they persist, you may need some help:

https://www.afca.org.au/make-a-complaint/superannuation

The problem is the British taxman.  If you take a lump sum now, they could take over a third of the money!   

The safest solution is to ask the super fund to convert it to an "income stream", which is like a pension.  You can choose how much the pension payment is, and you can change it any time you like. So if you are still working, you might keep the amount low at first, then increase it later.

Edited May 15, 2021 by Marisawright

[Ken]

18 hours ago, Ian Horner said:

I have been looking for an answer to my query everywhere without success so here goes. I moved to Australia on a permanent residency visa subclass126 from the UK in 1996. I lived and worked in Sydney until 2004 when I returned to live in the UK after loosing most of my savings in a mortgage scam. I was fully employed and my employers paid into my Australiansuper account with whom I have remained in contact with and have received a six monthly statement from them since leaving Australia. I recently turned 65 so I assumed I was eligible to withdraw money from my fund. I filled in their forms and provided all the verified proofs of identity but was then asked for proof of my citizenship or valid permanent residency. I didn't aquire dual citizenship and my visa has obviously expired so I only have an old expired visa to present to them. I have enquired as to my residency status and have been informed that once you are granted  permanent residency then as the visa states it is permanent, only the right to return is removed if the visa is not renewed after five years. So the question is, do I have an entitlement to my fund and if not what happens to it? Of course no further payments have been made into my fund since I left Australia but the fund has grown over the years and is a major contributor to my retirement plans. All the information online tends to lean towards regaining entry to Australia after a visa has expired. Any advice at all would be much appreciated as my super fund just responds with a stock reply requesting a valid permanent visa when I explain the situation. Thanking anyone in advance.....Ian

If you can't get anywhere with the normal contact methods lodge it as a complaint (there's a lodge a complaint section on the AustralianSuper website) and if that still doesn't yield a result follow up with a complaint to the Australian Financial Complaints Authority (www.afca.org.au). The latter do expect you to have lodged a complaint with the service provider first. I suggest you state when making the complaint to AustralianSuper that you'll be escalating the complaint to the Authority if you don't get a satisfactory response within x working days.

[Ian Horner]

Thanks for the advice guys. I was beginning to believe that I was mistaken in thinking that the money was actually mine. Today I have found after much searching the replacement passport I had issued in Sydney containing another permanent resident visa so it is off to the solicitors again tomorrow to have a copy verified.  Taking the fund as a lump sum won't be a problem tax wise as we timed our UK and Australian pensions to be paid out in different tax years but thank you for the advice anyway. So fingers crossed I don't have to take any further action to release my fund. Stay safe....Ian

[Ian Horner]

On 16/05/2021 at 22:31, Ian Horner said:

Thanks for the advice guys. I was beginning to believe that I was mistaken in thinking that the money was actually mine. Today I have found after much searching the replacement passport I had issued in Sydney containing another permanent resident visa so it is off to the solicitors again tomorrow to have a copy verified.  Taking the fund as a lump sum won't be a problem tax wise as we timed our UK and Australian pensions to be paid out in different tax years but thank you for the advice anyway. So fingers crossed I don't have to take any further action to release my fund. Stay safe....Ian

Update.......Things not moving I'm afraid. After supplying my replacement visa I eventually received a letter in the post with the heading in bold print.....We can't pay your superannuation fund. Then one more line saying....You are not a permanent resident or citizen, apply for a DASP payment. Had a look online to see what one was but it seemed to be for claiming after holding a temporary working visa. Asked Australiansuper to please help as I was confused on how to proceed after trying to fill in the DASP form online and the site not recognising my visas as they were not temporary working visas. I got a reply back with the same list of options for claiming my fund as I had received from them two months earlier....nothing else. So back to square one and no wiser. I have sent an official complaint through their site and have received a confirmation message stating my concerns will be reviewed with the NEXT 90 DAYS!! Getting really frustrated.  Stay safe...Ian

[Ian Horner]

On 30/06/2021 at 19:06, Ian Horner said:

Update.......Things not moving I'm afraid. After supplying my replacement visa I eventually received a letter in the post with the heading in bold print.....We can't pay your superannuation fund. Then one more line saying....You are not a permanent resident or citizen, apply for a DASP payment. Had a look online to see what one was but it seemed to be for claiming after holding a temporary working visa. Asked Australiansuper to please help as I was confused on how to proceed after trying to fill in the DASP form online and the site not recognising my visas as they were not temporary working visas. I got a reply back with the same list of options for claiming my fund as I had received from them two months earlier....nothing else. So back to square one and no wiser. I have sent an official complaint through their site and have received a confirmation message stating my concerns will be reviewed with the NEXT 90 DAYS!! Getting really frustrated.  Stay safe...Ian

Thanks for the reply and advice. My original visa with which I emigrated to Australia was headed...Class AT Resident P sub class 126. My passport containing this visa ran out and was replaced in Sydney and I was issued a replacement visa headed Class BB Resident Return P sub class 155. Both visas state that I was permitted to stay in Australia indefinitely. Verified copies of both these visas have been rejected by Ausraliansuper without explanation except stating that I wasn't a permanent resident or citizen. Since my previous post I have received a typed letter from them stating that if I hadn't supplied any of the required documents they had asked for with 14days they would cancel my application for withdrawing my fund. The letter was dated June 1st and I received it July 1st!  Every document they have asked for I have supplied but the only reply I ever get is that I am neither a permanent resident or citizen despite requesting exactly what they require that I haven't already provided....... Stay safe...Ian

[rammygirl]

Have to actually spoken to them? Something seems to be getting lost in the correspondence.  It is your money and you are entitled to it. 

[Marisawright]

4 hours ago, Ian Horner said:

Thanks for the reply and advice. My original visa with which I emigrated to Australia was headed...Class AT Resident P sub class 126. My passport containing this visa ran out and was replaced in Sydney and I was issued a replacement visa headed Class BB Resident Return P sub class 155. Both visas state that I was permitted to stay in Australia indefinitely. Verified copies of both these visas have been rejected by Ausraliansuper without explanation except stating that I wasn't a permanent resident or citizen. Since my previous post I have received a typed letter from them stating that if I hadn't supplied any of the required documents they had asked for with 14days they would cancel my application for withdrawing my fund. The letter was dated June 1st and I received it July 1st!  Every document they have asked for I have supplied but the only reply I ever get is that I am neither a permanent resident or citizen despite requesting exactly what they require that I haven't already provided....... Stay safe...Ian

As Rammygirl says, have you tried phoning them?  I know it means working out the time zone and ringing at an ungodly hour, and I imagine it won't be easy to get a straight answer on the phone either, but at least you can insist the consultant  explains WHY you're not eligible, and ask to speak to a manager.

There are two possible reasons why they're refusing you.  One is that your claim is being processed by a clerk in an office consulting a list of visas that are eligible, and the 126 isn't on it because it's an old visa. The other possibility is that their interpretation of the law is that you must hold a current visa.  Neither of your visas is current. That is not what the legislation says - it just says you needed to be a permanent resident when you were paying the contributions.  

I suggest being prepared for those excuses, have your answers ready and offer to send them links to web pages which prove they're wrong (a link to the govt website showing the 126 visa, a link to the govt website about eligibility).    If none of that works, then complain to the Australian Financial Complaints Authority (www.afca.org.au)

Edited July 7, 2021 by Marisawright

[Marisawright]

Note to administrators - I note one of my earlier replies has been deleted, presumably because this is an "Ask Vista" thread.  Please note that Andrew has chosen not to reply to this thread but has "liked" some of the posts instead.

Edited July 7, 2021 by Marisawright

[Ian Horner]

18 hours ago, Marisawright said:

Note to administrators - I note one of my earlier replies has been deleted, presumably because this is an "Ask Vista" thread.  Please note that Andrew has chosen not to reply to this thread but has "liked" some of the posts instead.

Thank you once again for your help everyone. As I mentioned in a previous post I have a complaint active with Australiansuper which hopefully I should get a reply to before long but the advice on actually speaking to them would appear to be the best solution. I have a couple of weeks holiday scheduled at the end of the month so I shall prep my Q&As and give them a ring then. Yesterday I came across a Web site specialising in the ins and outs of Australian visas and have requested advice from them on exactly what my expired visas entitle me to with regards to my fund. Thanks again.....stay safe...Ian

[Nemesis]

5 hours ago, Ian Horner said:

Thank you once again for your help everyone. As I mentioned in a previous post I have a complaint active with Australiansuper which hopefully I should get a reply to before long but the advice on actually speaking to them would appear to be the best solution. I have a couple of weeks holiday scheduled at the end of the month so I shall prep my Q&As and give them a ring then. Yesterday I came across a Web site specialising in the ins and outs of Australian visas and have requested advice from them on exactly what my expired visas entitle me to with regards to my fund. Thanks again.....stay safe...Ian

If you are going down that road you would be better speaking to a registered migration agent, than to a random website which may or may not be up to date and may or may not have experience of super funds and entitlements. Honestly, be careful who you take advice from. 

[Marisawright]

5 hours ago, Ian Horner said:

 Yesterday I came across a Web site specialising in the ins and outs of Australian visas and have requested advice from them on exactly what my expired visas entitle me to with regards to my fund. Thanks again.....stay safe...Ian

If the website asks you to pay for that advice, don't pay it.  Or at least, let us know what the website is so we can tell you whether it's genuine or just one of (many) scam sites.

[Ian Horner]

On 08/07/2021 at 23:57, Marisawright said:

If the website asks you to pay for that advice, don't pay it.  Or at least, let us know what the website is so we can tell you whether it's genuine or just one of (many) scam sites.

Excellent news. Today I got a reply from Australiansuper regarding my  complaints acknowledging that the information I supplied in May was infact all they needed to process my fund withdrawal and that a cheque had been issued!!!! Not much in the way of an apology as the whole message pretty much concentrated on how their complaints procedure solved the problem for me. Oh and they did acknowledge that the letter stating I needed to apply for a DASP payment was also blunder. Perhaps I should request a further cheque to cover the hours off work visiting solicitors and their fees for verifying documents they needlessly asked for! Nah just relieved the nightmare has come to an end and my wife and I can look forward to a slightly more comfortable retirement. Thank you everyone once again for your help, without which I would most definitely just have assumed that the fund was not rightfully mine. STAY SAFE... Ian

[Marisawright]

Brilliant 

[paulswin]

That’s great news!  I’m an Australian citizen but moved back to UK and will have to figure out getting my super!  How does it not get taxed as you said you’d get the pension at a different time to UK one?

[Marisawright]

44 minutes ago, paulswin said:

That’s great news!  I’m an Australian citizen but moved back to UK and will have to figure out getting my super!  How does it not get taxed as you said you’d get the pension at a different time to UK one?

Not sure what you mean, @paulswin. Firstly, you can't claim your super early, you're still subject to the same rules as if you were living in Australia.  So, you can claim your super when you retire, either as a lump sum, or ask the super fund to convert it a pension (called in "income stream").  

There is no way to transfer your super to a British pension fund.

I hope you've written to the super fund, telling them your new address and instructing them to cancel all insurances (because they're probably not valid anyway while you're overseas, and they're costing you fees).

Taxation - this is the nasty bit

If you're living in Australia, your super is not taxed.  If you're living in the UK, it is taxed (not by Australia, but by the Inland Revenue).

In fact if you take a lump sum, the Inland Revenue will grab about a third of it, so taking a lump sum is not a good idea!   Even if you take it as a pension, you'll have to declare it as income - but by that time your annual income will be a lot lower, so it shouldn't be so painful.

[Ken]

7 hours ago, Marisawright said:

Not sure what you mean, @paulswin. Firstly, you can't claim your super early, you're still subject to the same rules as if you were living in Australia.  So, you can claim your super when you retire, either as a lump sum, or ask the super fund to convert it a pension (called in "income stream").  

There is no way to transfer your super to a British pension fund.

I hope you've written to the super fund, telling them your new address and instructing them to cancel all insurances (because they're probably not valid anyway while you're overseas, and they're costing you fees).

Taxation - this is the nasty bit

If you're living in Australia, your super is not taxed.  If you're living in the UK, it is taxed (not by Australia, but by the Inland Revenue).

In fact if you take a lump sum, the Inland Revenue will grab about a third of it, so taking a lump sum is not a good idea!   Even if you take it as a pension, you'll have to declare it as income - but by that time your annual income will be a lot lower, so it shouldn't be so painful.

There will be a lot of young people in the UK wondering what the Inland Revenue is. It hasn't existed since 2005! Otherwise spot on.

[paulswin]

Thanks Marisa. Was a bit confused with what Isn wrote “  Taking the fund as a lump sum won't be aproblem tax wise as we timed our UK and Australian pensions to be paid out in different tax years”. Wasn’t sure what he meant by that!

[Ken]

6 minutes ago, paulswin said:

Thanks Marisa. Was a bit confused with what Isn wrote “  Taking the fund as a lump sum won't be aproblem tax wise as we timed our UK and Australian pensions to be paid out in different tax years”. Wasn’t sure what he meant by that!

I assumed that it wasn't a large lump sum and so he was able to stay within his UK tax free threshold. Splitting a lump sum either side of 5th April can allow you to use two years of tax free thresholds (assuming you don't have any other taxable income) and delaying taking his UK pension to the following tax year could mean he didn't have any other taxable income. It's all in the tax planning - but each individuals circumstances are different so what works for one person doesn't work for another.

[Marisawright]

8 minutes ago, Ken said:

I assumed that it wasn't a large lump sum and so he was able to stay within his UK tax free threshold. Splitting a lump sum either side of 5th April can allow you to use two years of tax free thresholds (assuming you don't have any other taxable income) 

This is the key bit of information!

[paulswin]

Ah now that makes sense!  Thanks for the info that’s good to know!