Expired Spouse Visa, Refused visit Visa, what should we do?

[xy]

I arrived in the UK in 2000 on a visit visa and subsequently applied for asylum. My application was denied and i also lost the appeal.
I was asked to return in 28 days but i overstayed. Instead i sent many appeals to the HO as i was genuinely scared to return to my country. During the time in the UK i got into a relationship with a girl who was a non-eu student ( I had separated from my wife long before coming to the UK).

Around 2008 with the help of my girlfriend (who by that time had acquired ILR status) i applied via a solicitor for discretionary leave to remain as an unmarried partner of a settled person. However as this application was taking too long, in 2009 i wrote to the home office informing them of my intention to withdraw the application and left for my home country and applied from there for an unmarried partner visa. My partner who by that time had become a naturalized citizen traveled back with me. I was granted the visa in September 2009. We traveled together twice to the UK intending on starting our new life but due to both our parents being old and needing care we decided to stay in our home country indefinitely.

Between 2009 and today, i got a formal divorce from my ex, got married to my partner and have a two year old son. Last month we wanted to visit London but my visit visa was denied as the ECO didn’t think i would return as my wife was a Uk citizen (my son as well by decent). Despite the fact that i stated in a cover letter that we don’t intend re-applying for a spouse visa untl 2017 (in hindsight, maybe that was not so clever) when our son would need to start school.

Although it was not in the form when we applied before, the new NHS treatment question is a bit worrying as well, since i was registered at a GP during my overstay until i left in 2009 and didn't pay for visits except for dental treatment and for prescriptions. Although i read somewhere that they enforce this for people who used the NHS after 2011 in which case it may not apply to my application.

Now we are determined to bring forward the spouse visa application date and was wondering if any of the experienced members would be so kind as to advise us if the spouse visa route or the SS route would be more suitable. We have been both living overseas since 2009 but can show the required £62500 savings as we don’t want to travel separately.

Any advice would be much appreciated.

[CR001]

can show the required £62500 savings

Has this savings been held in an account which is accessible for at least 6 months in your name(s) with documented proof?

For a spouse visa, you will also have to pay the new IHS (NHS) Surcharge which is £600 for the initial first spouse visa of 33 months. This surcharge is on top of the visa fee. You would also need to prove you meet the English language requirement (A1 level) and suitable accommodation in the UK

SS route is if you and your spouse (British spouse exercising treaty rights)and live for 6-12 months in a EU country before moving to the UK.

[xy]

Many thanks for your reply.

We will have to keep the £62500/- savings for another two months to get past the 6 months requirement, but it'll take us about that long to get the accommodation proof sorted. We hope to get a letter from a friend who has a 6 bed-roomed house (only two people living there) to state that she will give us accommodation until we both secure jobs. I'll also get her to send me a copy of the deed showing that she's the owner and maybe some document from the local council showing that only two people reside there at present. I have a UK MBA so hopefully i wouldn't need to take the A1 language test.

The main reason we considered the SS route was the fact that UK immigration has less of a say when someone enters under the EU Free movement law, although we are both not too keen on this as we would waste 6-12 months of our lives struggling in a non-English speaking country (unless we move to Malta or Ireland).

Since i satisfied the requirement for the unmarried partner visa back in 2009 and now i'm married to the same partner and we have a child, the only concern i have since i was granted the spouse visa in 2009 is the new question about using NHS for free in the past. I read in some ECO guidelines that this was for outstanding NHS bills after Nov. 2011 (in which case it shouldn't apply to me), but would really appreciate clarification on this issue.

[CR001]

Your accommodation plans should be fine. Your UK Degree with meet the English requirement.

I cannot answer your question on the NHS on whether it will be an issue or not.

The new NHS surcharge of £600 is separate to your previous NHS use though and is a new requirement since April this year for entry clearance and visa extension applications.

[xy]

Good to know that the accommodation plan is acceptable, we'll start collecting the required documents for that asap. I'm ok with the £600 nhs surcharge, hopefully someone can also clarify if my using NHS for free prior to 2011 would be an issue. If so, how do I resolve it?

[xy]

Can somebody who knows please shed some light on the grounds for visa refusal based on unpaid NHS bills ? From what i have read, this applied to bills incurred on or after the 1st of November 2011. If this is correct, any charges prior to this date cannot be used as a reason for refusal.

http://www.entryclearanceservices.co.uk ... t-recovery

I have seen many contradicting posts on various forums regarding this, but most of the official documents seem to say its debt incurred AFTER 1st Nov 2011.

http://www.nat.org.uk/media/Files/Polic ... to-pay.pdf (2nd page)
https://www.gov.uk/government/uploads/s ... ndix_7.pdf

Would really appreciate confirmation of this from someone who knows for sure.

[vinny]

A member reported being charged from 2006.

See also ‘Health tourists’ will pay the price for their NHS debts

Statement of changes to the Immigration Rules: HC1511, 10 October 2011

Refusal is under

(22) where one or more relevant NHS body has notified the Secretary of State that the person seeking entry or leave to enter has failed to pay a charge or charges with a total value of at least £1000 in accordance with the relevant NHS regulations on charges to overseas visitors.

where:

(i) The National Health Service (Charges to Overseas Visitors) (Amendment) (Wales) Regulations 2004 (2004 No 1433);
(ii) The National Health Service (Charges to Overseas Visitors) (Scotland) Regulations 1989 as amended (1989 No 364);
(iii) The Health and Personal Social Services (Provision of Health Services to Persons not Ordinarily Resident) Regulations (Northern Ireland) 2005 (2005 No 551); or
(iv) The National Health Service (Charges to Overseas Visitors) Regulations (2011 No 1556).

Case laws:
W & Ors, R (On the Application Of) v Secretary of State for the Home Department [2014] EWHC 1532 (Admin) (15 May 2014)
OA141542012 [2013] UKAITUR OA141542012 (30 October 2013)
VA140432013 [2014] UKAITUR VA140432013 (19 November 2014)

[Amber]

If you and your British spouse could get to the UK, then it is feasible that you could apply for SET(M) [Indefinite Leave to Remain]. Providing that you meet the requirements and could show that a subsisting relationship existed when you were abroad. It would depend on the reason why you were abroad and didn't return sooner, for example an ill family member ought to be a good reason, a letter from a medical practitioner confirming this would be supportive.

[xy]

Thanks a lot vinny.

So, based on the statement of changes to immigration rules (https://www.gov.uk/government/publicati ... tober-2011) the rule can only be applied if

Refusing entry or stay NHS
7.17 The Immigration Rules change will provide that where a person subject to
immigration control has failed to pay charges of £1,000 or more due to one or more
relevant NHS body in respect of NHS treatment charges invoiced on or after 1
November 2011, the person should normally be refused permission to enter or remain
in the country or have their leave cancelled.

But reading the case records which you so kindly supplied via links, i see that people appealing decisions where they have been refused for unpaid NHS bills which are prior to November 2011 ??

I'm sure i'm missing something, but cant figure it out for the life of me

Not sure i mentioned this before, but i was registered with a GP from 2000 - 2009 but never was hospitalised or required any major treatment. I paid for prescriptions but didn't pay for GP consultations during this period. Hence the concern regarding tmy upcoming spousal visa

[Casa]

If you and your British spouse could get to the UK, then it is feasible that you could apply for SET(M) [Indefinite Leave to Remain]. Providing that you meet the requirements and could show that a subsisting relationship existed when you were abroad. It would depend on the reason why you were abroad and didn't return sooner, for example an ill family member ought to be a good reason, a letter from a medical practitioner confirming this would be supportive.

Amber, surely this wouldn't work as if I've understood correctly, the OP is no longer married to the person who sponsored his original spouse settlement visa?

[Amber]

The way I have read it Casa is that he got leave to enter as an unmarried partner (2+ years) and subsequently married that same person. He never had leave in relation to his first wife, rather applied for refugee status. Least that what I think?

[xy]

Thanks Amber for the advise. We are trying to make sure that we can get to the UK again with a new spouse visa so we can apply for ILR.
But this NHS question has us worried.

Also, we are the same couple from the onset. Only difference is that now we are married and have a child. When we applied for the earlier settlement visa we were not married, so it was an unmarried partner visa

[xy]

Correct, I was separated from my first wife in 1999 well before coming to the UK or meeting my current wife.

[Amber]

GP treatment is free and so is emergency treatment so you shouldn't have an issue.

[Casa]

Thanks Amber. My brain is in Sunday sofa mood and not up to speed!

[xy]

We just re-read Amber's original post, so what you suggest is that we do not apply for another new spouse visa but instead apply for ILR based on the original unmarried partner visa? The actual reason was the fact that our parents were ill. I can get a letter from a doctor to that effect as well. But the big question is how do we both get to the UK without a new spouse visa?

I'm not sure if i quite understood what Amber is suggesting, but if i have understood correctly, this option sounds much better and its something we never considered. Instead we were thinking of going down the 5 year route for ILR once we get the new spouse visa(hopefully).

[xy]

Slightly off topic as I'm back on the NHS debt issue. The link below seem to be HO guidelines for ECO's. Page 63 is on visa refusal based on NHS debt.

http://alturl.com/mbxbs

If the above document is correct, how come people get refused for much older debt?

[Obie]

The difficulty with Amber's advise is that, it does not state how you will enter the UK without a visa.

If you get visa under any route, that option will be closed.



I agree that Amber view is correct, but the difficulty is you cannot fly into the UK without a visa.

But if you can enter the UK without any leave being granted, then Amber's advice is correct, although i beg to defer that it is realistic.

[xy]

In order to satisfy the financial requirements of the spouse visa, we sold some land and as we only intend applying in about 3-6 months from now, have invested this money.

I hope someone can clarify some concerns i have about how this money could be invested and used to show that we satisfy the requirements.

The quotes below are from the following document,
https://goo.gl/BwemmD

Proceeds from a sale of property,

7.4.11. This means that, where the cash savings held at the date of application are the proceeds of an applicable property sale; the period the property was owned in the 6 months prior to the date of application, before it was sold to produce cash savings, can be counted towards the 6 month period. So money held as cash savings at the date of application can have resulted from the sale of a property for the first part of the period of 6 months prior to the date of application and as cash savings for the rest of that 6 month period if the decision-maker is satisfied that all the requirements in paragraph 7.4.10. have been met in addition to the requirements being met when the funds are held as cash savings (see the table in 7.4.3. for a summary of the cash savings requirements). The rules do not specify what evidence must be submitted as individual circumstances and local property laws and taxes will vary.

However for the money to qualify as cash savings, the accounts in which they are held should satisfy ALL the requirements below,

7.4.3. The following table illustrates all the requirements that must be met: Summary of all the requirements that must be met for funds to be considered as cash savings held in a deposit or investment account

1 The account is held within a bank or building society

2 The bank/building society is a financial institution regulated by the appropriate regulatory body for the country in which that institution is operating

3 The bank/building society is not on the list of excluded institutions under the Immigration Rules

4 The account is a current account or a savings account

5 Regular bank statements are provided

6 The statements cover the necessary time period required in the Immigration Rules

7 The savings are held in cash (or their cash value is clear)

8 The savings can be immediately withdrawn (with or without penalty)

9 The funds are under the control of the person and/or their partner for the necessary time period required in the Immigration Rules

10 The source of the funds is legal

11 The source of the funds has been declared

My interpretation of this is that the money i have invested in fixed term accounts would not qualify as current/savings accounts even though they are invested in banks. The way i understand it, i have to cash them in and move them to a savings account at the time of application.

7.4.9. This means that, where the cash savings have previously been held as investments (including where they have been held in an investment account which does not meet the requirements of paragraphs 11 and 11A(a)), stocks, shares, bonds or trust funds that were owned by and under the control of the applicant, their partner or both jointly, this ownership period can be counted towards the 6 month period. So money held as cash savings at the date of application can have been liquidated or transferred by the same owner(s) from investments and may have been held as investments for the first part of the period of 6 months prior to the date of application and as cash savings for the rest of Appendix FM 1.7: Financial Requirement April 2015 52 that 6 month period (see the table in 7.4.3. for a summary of the cash savings requirements).
Evidence must be provided showing that: 

1. The investments, stocks, shares, bonds or trust funds were in the ownership and under the control of the applicant, their partner or both jointly for that part of the 6 month period prior to the date of application before they were liquidated into cash savings; 

2. The value of the investments, stocks, shares, bonds or trust funds at or before the beginning of that 6 month period was at least equivalent to the amount of the cash savings relied upon in the application; and 

3. The cash savings meet the requirements of Appendix FM-SE.

So my question is, although i have now invested all the money in fixed term (12 month) deposits, do i really have to cash them prematurely at the time of application and move them into a savings account ?

More importantly, is money from the sale of land invested as described above in fixed term investments, still allowed to be used without waiting for the 6 month period stipulated for other sources of funds, even if they are moved into a savings account at the time of applying?

[xy]

We would appreciate some advise on the following,

My wife (British Citizen via Naturalisation) and myself (non Eu husband), both living outside of the EU, plan to apply for a Spouse visa later this year. We have a 2 year old son who was born outside the UK after my wife was naturalised as a British Citizen, our understanding is that he is automatically British (other than by decent). However we have not yet registered his birth in the UK or got him a British passport yet.

My question is, when we apply for my Spouse visa, do we need to prove that our son is British by either getting a COE for the right of abode on his foreign passport or by getting him a British passport? Or is the fact that his birth certificate shows that he was born after the date my wife was naturalised suffice?

We plan to get him a COE for the right of abode stamp on his local passport so he could travel freely with my wife, as getting a British passport could take anything from 6-12 months for applications made from our part of the world.

Thanks in advance for any comments/advise.

[Casa]

In the absence of a British passport you will need a COE

[geriatrix]

1. The child born outside UK to a naturalised British parent is British by descent.
2. Whether British passport or CoE-RoA (on an Indian passport), you are looking at 6-12 months wait time. On a British passport the child will also need either an exit visa or OCI.