Pregnant fiancée - is a fiancée Visa Classed as 'Settlement' and is she entitled to use the NHS?

[MR439]

Hello,

My Russian fiancée has recently been granted her 6 month fiancée / bride visa to come to the UK. She will be 33 weeks pregnant when she comes (as noted in the visa application).

My query is as follows:

She will be here to settle, as we have booked our wedding in May 2018 (part of the visa requirement too). We are also expecting our first child in February 2018. Therefore, will she be entitled to free NHS care for the birth period?

During the application process we were not charged the IHS (immigration health surcharge). We (or I) am happy to pay this however we have not been asked to pay this, even though she is settling here in the UK via the fiancée visa route. Therefore I am confused as to whether she is technically classed as person that is here to settle or a visitor (if the latter she will not be entitled to any NHS care).

This subject seems to be not clear at all despite much research on the web... any clarity would be much appreciated.

Thank you!!

[secret.simon]

Therefore, will she be entitled to free NHS care for the birth period?

I doubt that she will be entitled to free health care.

The terms of the fiance visa are more akin to a visit visa than a spousal visa. It is time-restricted to six months, you are not allowed to work on a fiance visa and crucially no IHS is charged. The only major difference is that the applicant is allowed to extend his/her stay in the UK after the marriage has occurred.

Also, if IHS is not payable, the non-EEA citizen is charged 150% of the NHS cost.

[Casa]

secret.simon is correct. The IHS isn't charged for a fiancee visa and neither is it possible to pay it voluntarily. Unfortunately until your wife has been granted FLR(M) after you are married, all NHS treatment, including pre-natal, the birth of your baby and post-natal care will be charged at 150% of the cost.

Anyone on a fiance visa is recommended to take out private health insurance, but in your situation this won't cover pregnancy which will be considered as a pre-existing 'condition'.

Do bear in mind that if you apply for FLR(M) by post, this could take 3 months to process and your wife will have no access to free NHS treatment until this has been issued. If applying in person at a Premium Service Centre (PSC) for an additional fee of £590, the FLR(M) visa is generally issued on the same day. (Visa fee £933 + £590 + IHS £500).

In the circumstances, you may want to consider bringing the wedding date forward, unless you are in a position to cover the NHS fees which could run into several thousand pounds. If outstanding NHS fees aren't paid before applying for FLR(M), her visa stands to be refused.

[Obie]

The IHS is not charged for fiancee visa, as it is valid for under 6 months. However it is a settlement visa and the person paid a full settlement fee. It is not a marriage visitor visa.

A person is therefore entitled to free NHS in my opinion.

[FXR_1340]

My partner is a recent recipient of a Marriage Visa.

I think it is annotated as not permitting employment or access to public funds. I would expect the last bit to include NHS access as that is funded from public funds.

[Wanderer]

The IHS is not charged for fiancee visa, as it is valid for under 6 months. However it is a settlement visa and the person paid a full settlement fee. It is not a marriage visitor visa.

A person is therefore entitled to free NHS in my opinion.

From UKVI site..

Visitor visas and short-term visas

You don’t need to pay the surcharge or get an IHS reference number if you’re applying for a:

visitor visa
visa for 6 months or less from outside the UK

You will need to pay for any NHS care you get at the point you use it - unless it’s a service that’s free.

[Obie]

My partner is a recent recipient of a Marriage Visa.

I think it is annotated as not permitting employment or access to public funds. I would expect the last bit to include NHS access as that is funded from public funds.

Well unfortunately marriage visitor visa is not the same in terms of fees and the rights attached, as a fiance visa, which is issued with a view to settlement.

Therefore someone on marriage visitor will be expected to pay NHS fees.

[Obie]

The IHS is not charged for fiancee visa, as it is valid for under 6 months. However it is a settlement visa and the person paid a full settlement fee. It is not a marriage visitor visa.

A person is therefore entitled to free NHS in my opinion.

From UKVI site..

Visitor visas and short-term visas

You don’t need to pay the surcharge or get an IHS reference number if you’re applying for a:

visitor visa
visa for 6 months or less from outside the UK

You will need to pay for any NHS care you get at the point you use it - unless it’s a service that’s free.

Well wanderer your argument falls in itself . Visirors visa is distinctively different from fiance.

Fiance is issued with a view to settlement.

Visitors visa are not. Giving the fact that the difference between them in terms of cost, is about 12 fold, I will clearly expect them to.have access to the NHS, giving the purpose of the visa.

[vinny]

I think that before the introduction of the NHS Immigration Heath surcharges, both spouses and fiancé(e)s were exempted from NHS charges.

However, as the Immigration Health Surcharge applies to applicants for limited leave as spouses, this implies that spouses are not treated as having ordinarily residence for the purposes of the NHS. A person with limited leave as a spouse is not entitled to free NHS treatments without paying the Immigration Health Surcharge.

In this hostile environment, I doubt that fiancé(e)s have more advantages than spouses, i.e. not required to pay the Immigration Surcharge and be entitled to free NHS treatments.

See also NHS maternity care for women from abroad (in England).

[Wanderer]

The IHS is not charged for fiancee visa, as it is valid for under 6 months. However it is a settlement visa and the person paid a full settlement fee. It is not a marriage visitor visa.

A person is therefore entitled to free NHS in my opinion.

From UKVI site..

Visitor visas and short-term visas

You don’t need to pay the surcharge or get an IHS reference number if you’re applying for a:

visitor visa
visa for 6 months or less from outside the UK

You will need to pay for any NHS care you get at the point you use it - unless it’s a service that’s free.

Well wanderer your argument falls in itself . Visirors visa is distinctively different from fiance.

Fiance is issued with a view to settlement.

Visitors visa are not. Giving the fact that the difference between them in terms of cost, is about 12 fold, I will clearly expect them to.have access to the NHS, giving the purpose of the visa.

It quite clearly says visitor visa AND short-term visas of six months or less.

From Maternity Action;

Am I exempt from the health surcharge?

The Immigration Health Surcharge (IHS) cannot be paid if the visa is for 6 months or less (e.g. visit and fiancée visa). People with those visas are chargeable for their NHS maternity care.

I think the distinction isn't the term, it's being ordinarily resident, even returning UK citizens are not oridinarily resident, and would have to pay, intending to settle or not.

From same site

UK nationals, who have been living/working abroad, may also have to prove their ordinary residence. If you have emigrated, you are likely to be charged for NHS care on visits to the UK but you are not chargeable if you can show that you are still ordinarily resident here.

Guess the issue is whether a fiance(e) is ordinarily resident or not, and more importantly what the law says, and, as Vinny says, the treatment of spouses which opposes your opinion.

[Obie]

Paying NHS surcharge is not an indication that someone is ordinary resident in the UK.

There are people who did not pay NHS surcharge and still eligible to use NHS. When i apply for people who are seeking exemption from the application fee, they do not Pay NHS surcharge, and this does not stop them from being entitled to use the NHS.

The Secretary of State has discretion as to whom she requires to pay the surcharge.

The question is whether a person who enters the UK with a fiance visa, with a view to settlement, is ordinary resident in the UK, and in my opinion they are. The Home Office may choose not to charge them the NHS surcharge, ans she has a discretion in that area. But they are clearly ordinary residence here, they are not here as a visitor, they entered the UK with a view to settlement.

[Casa]

3.10. It is important to note that since 6 April 2015, non-EEA nationals who are subject to
immigration control must have indefinite leave to remain (ILR) in the UK in order to be
ordinarily resident in the UK. They must also still meet the other requirements of the
test set out at paragraph 3.12; having ILR on its own is not sufficient since that person
may no longer be, for example, residing in the UK on a properly settled basis, and may
only be visiting.
AND
Q: Can a non-EEA national without ILR be ordinarily resident in the UK?
A: A non-EEA national without ILR can only pass the ordinary residence test if they are not
subject to immigration control, e.g. they are diplomat posted to the UK, or have a right of
residence here by virtue of their relationship with an EEA national who is resident here.

https://www.gov.uk/government/uploads/s ... idance.pdf

[FXR_1340]

My partner is a recent recipient of a Marriage Visa.

I think it is annotated as not permitting employment or access to public funds. I would expect the last bit to include NHS access as that is funded from public funds.

Well unfortunately marriage visitor visa is not the same in terms of fees and the rights attached, as a fiance visa, which is issued with a view to settlement.

Therefore someone on marriage visitor will be expected to pay NHS fees.

Sorry. The visa issued to my wife to be is a Fiance visa not a marriage visa per se.

Apologies for my misleading comment.

The Fiance Visa states empoyment not permitted and no recourse to public funds. Think that means no acces to free treatment by NHS.

[Casa]

3.10. It is important to note that since 6 April 2015, non-EEA nationals who are subject to
immigration control must have indefinite leave to remain (ILR) in the UK in order to be
ordinarily resident in the UK. They must also still meet the other requirements of the
test set out at paragraph 3.12; having ILR on its own is not sufficient since that person
may no longer be, for example, residing in the UK on a properly settled basis, and may
only be visiting.
AND
Q: Can a non-EEA national without ILR be ordinarily resident in the UK?
A: A non-EEA national without ILR can only pass the ordinary residence test if they are not
subject to immigration control, e.g. they are diplomat posted to the UK, or have a right of
residence here by virtue of their relationship with an EEA national who is resident here.

https://www.gov.uk/government/uploads/s ... idance.pdf

My understanding from the official guidance above is that a fiance isn't entitled to free NHS treatment.

[FXR_1340]

Paying NHS surcharge is not an indication that someone is ordinary resident in the UK.

There are people who did not pay NHS surcharge and still eligible to use NHS. When i apply for people who are seeking exemption from the application fee, they do not Pay NHS surcharge, and this does not stop them from being entitled to use the NHS.

The Secretary of State has discretion as to whom she requires to pay the surcharge.

The question is whether a person who enters the UK with a fiance visa, with a view to settlement, is ordinary resident in the UK, and in my opinion they are. The Home Office may choose not to charge them the NHS surcharge, ans she has a discretion in that area. But they are clearly ordinary residence here, they are not here as a visitor, they entered the UK with a view to settlement.

Interesting points.

However, to say ".....they entered the UK with a view to settlement" is not necessarily the case. The Fiance Visa is lifed for up to 6 months and they could leave. It follows surely that the recipient is not settled? Should the recipient wish to remain they must lodge FLR(M) or similar and only then, if agreed, do they become "settled" and just for the period of the new visa?

Grateful for some clarification and/or correction on this as it could have considerable implication in our position.

[Casa]

Q: Can a non-EEA national without ILR be ordinarily resident in the UK?
A: A non-EEA national without ILR can only pass the ordinary residence test if they are not
subject to immigration control, e.g. they are diplomat posted to the UK, or have a right of
residence here by virtue of their relationship with an EEA national who is resident here.

https://www.gov.uk/government/uploads/s ... idance.pdf

Referring to the Overseas visitor charging regs guidance above:
Without being ordinarily resident there will be no free access to NHS facilities unless they have paid the IHS. A fiance doesn't have the option of paying the health surcharge.