Flr spouse visa denied. Help!

[Petaltop]

, not even remotely and no free access to the NHS.

Please ignore that advise. It is wrong and misleading. If a person entered on Fiance visa, they are permitted to use NHS. If they apply for settlement before their visa arrives, then section 3C will be engaged.

Everyone can use the NHS but some have to pay at the point they use it.


https://www.gov.uk/healthcare-immigrati ... n/overview
Visitor visas and short-term visas

You don’t have to pay the healthcare surcharge if you’re applying from outside the UK for a visitor visa or any visa that lasts 6 months or less.

You don’t need to use the healthcare surcharge service or get an IHS reference number for your visa application. Instead, you’ll have to pay for any healthcare you get through the NHS at the point you use it.



A fiance visa is for 6 months. Which is why, as CR001 pointed out, they don't pay the IHS.

[Obie]

So in your view petaltop, FIance Visa is not a settlement visa but a visitors visa? Is that correct. If it is, then i clearly don't accept it.

[Petaltop]

So in your view petaltop, FIance Visa is not a settlement visa but a visitors visa? Is that correct. If it is, then i clearly don't accept it.

That is not what the above quote from the UK government site says. The Immigration Act 2014 changed the defination of"ordinary resident" for free NHS, to British and ILR.

[Casa]

I have to agree with Petaltop. Not a visitor visa in this case but "any visa that lasts 6 months or less".

[Obie]

Well one has to refer to the legislative provisions to help resolve this issue.

We need to ignore this 6 months issue, and focus on the language of the The National Health Service (Charges to Overseas Visitors) Regulations 2015

Firstly, in my view, a person on Fiance Visa, as opposed to marriage visitors visa, are not in a similar category. A person on marriage visitors visa will be expected to pay for non-exempted services he or she uses. A person on Fiance visa was issued with the view to settlement. It is part of a settlement application, which is why full fees are paid for it, like any settlement visa application.

Giving the purpose of a Fiance Visa, which provides for switching from within the UK unlike marriage visitors visa, and it is issued with a view to settlement, I am of the believe that a person on Fiance VIsa is not an Overseas VIsitors with the Meaning of the NHS (Charge to OVerseas Visitors) Regulations 2015, and are therefore not in a category of person from whom Regulation 3 of the above regulation applies.

Therefore my legal opinion and view is that, a person issued with a Fiance VIsa with a view to settlement, is ordinarily resident in the UK, does not fall foul of Regulation 3, and is not a person to whom recovery of cost could be made. That person in all the circumstance cannot be classified as an Overseas Visitor.

Even if for Argument Sake, I was to take Petaltop's argument at it highest, and conceded it is correct, as a result of Regulation 10(2)(a), Petaltop will still be wrong, as OP had in actual fact paid an NHS surcharge, and therefore for as long as her Section 3C rights are engaged, she is entitled to receive NHS treatment, and hence Petaltop's argument entirely falls away.

[Obie]

So in your view petaltop, FIance Visa is not a settlement visa but a visitors visa? Is that correct. If it is, then i clearly don't accept it.

That is not what the above quote from the UK government site says. The Immigration Act 2014 changed the defination of"ordinary resident" for free NHS, to British and ILR.

Section 39(1) is duly noted, but it does not assist your argument, even if i was to accept and concede that OP is an Overseas Visitors in relation to the 2015 Order.

For reasons I have already mentioned, OP can still rely on Regulation 10(2) of the 2015 order.

The Supreme Court has indeed interpreted Ordinary Resident in Regards to the Student Support Provision, but i will try to restrain myself and not bring it up in this thread.

[Petaltop]

Therefore my legal opinion and view is that, a person issued with a Fiance VIsa with a view to settlement, is ordinarily resident in the UK,

Now read the Immgration Act 2014 on the NHS and how it changed the definition of "ordinarily resident". This NHS part started April 2015.


Here is one immigration firm explaining this Act. Article written in 2014.

One of the effects of the new Act is to change the definition of an Ordinary Resident. Non-EEA nationals subject to immigration control will no longer be classed as ordinarily resident unless they have indefinite leave to remain (ILR) in the UK.
http://www.fergusonsnell.com/news/immig ... -migrants/

And another

Secondary healthcare (e.g. NHS hospital treatment) will remain chargeable to migrants who are not ordinarily resident in the UK and who are not exempt from charging. The definition of 'ordinarily resident' will be amended on 6 April 2015, in accordance with section 39 of the Immigration Act 2014, which will limit this to migrants who have settled status in the UK (indefinite leave to remain).
http://www.nrpfnetwork.org.uk/News/Page ... harge.aspx


This was how the UK was able to bring in the Immigration Health Surcharge from the 6 April 2016
and the "any visa that lasts 6 months or less" "you’ll have to pay for any healthcare you get through the NHS at the point you use it".
https://www.gov.uk/healthcare-immigrati ... n/overview

Even if for Argument Sake, I was to take Petaltop's argument at it highest, and conceded it is correct, as a result of Regulation 10(2)(a), Petaltop will still be wrong, as OP had in actual fact paid an NHS surcharge, and therefore for as long as her Section 3C rights are engaged, she is entitled to receive NHS treatment, and hence Petaltop's argument entirely falls away.

She didn't pay the IHS as she was on "any visa that lasts 6 months or less", a fiance visa . She had to pay the NHS at the point she used it.
She married and applied for a spouse visa and that was refused. Her IHS fee will be returned.

You’ll get a full IHS refund if:

you paid twice
your visa application is refused
you withdraw your visa application
https://www.gov.uk/healthcare-immigrati ... on/refunds


Are you saying that while on appeal, 3c allows her to have free use of the NHS, even though her fiance visa didn't allow this? Can she work while on appeal under 3c, even though her fiance visa didn't allow her to work?

[Obie]

Petaltop what you quoted those people as saying is inconsistent with the 2015 order, and Section 39(1) which the purport to derive it from.

Section 39(1) clearly did not say, only those with ILR or British Citizenship will be considered as Ordinary, that will breach the UK's obligation under the communities treaty. It does not say that, if that is what the link you provided alleged section 39(1) says, then i respectfully disagree.

By Virtue of Regulation 10(1)(b) of the 2015 Order, which i had cited in Previous post, OP qualifies under 10(2)(a), as she made a variation application, and when she made that, she would have paid the NHS surcharge, therefore for as long as Section 3C is engaged she is covered.

The second argument is just an alternate argument. So even if for argument sake i was to concede that you are correct on the 6 months issue, your comment that OP will be charged will still be wrong under regulation 10(2)(a).

Had OP not made a variation application, perhaps you may well have been correct, if i was in agreement with the Section 39(1) point, which is not the case.


I am not saying anything about Section 3C, I am merely stating what the law says. Section 3C does not only deal with work right.

The law says, if OP has made a variation application, which is pending, then she will be entitled to NHS treatment for as long her her variation application is unresolved.

By virtue of Section 10(2)(a), OP would have paid for NHS surcharge when she made her variation application, and as a result, that provision exempt an Overseas visitor from the Recovery of fees provision.

[Petaltop]

Petaltop what you quoted those people as saying is inconsistent with the 2015 order, and Section 39(1) which the purport to derive it from.

These legal firms and hundreds of thousands of others if you search the internet, are all commeneting on the changes for who can use the NHS for free, made via the Immigration Act 2014.

If you search between 2012 when the Immigation Act was just a Bill and then all through 2014 (when the Bill became a law) you can read what all these solicotors are saying about the changes that law made.

[Petaltop]

By virtue of Section 10(2)(a), OP would have paid for NHS surcharge when she made her variation application, and as a result, that provision exempt an Overseas visitor from the Recovery of fees provision.

Are you saying that even though her fiance visa did not allow her to use the NHS for free, or be allowed to pay the IHS (as her visa was only for 6 months), or be allowed to work - now she has had her visa refused and her IHS fee returned, she can use the NHS for free but can't work?

The NHS check the persons BRP to see if they can use the NHS for free. They also check their SPINE system, where UKVI place a banner for them: Green banner on the name means must not be billed, Red Banner on their name for must be billed. Why would UKVI change her red banner (fiance visa) to a green banner on her name, if they had refused her a visa and returned her IHS fee?

[michali]

I have to agree with Petaltop. Had the OP been on a previous visa which allowed free access to the NHS, she might have been entitled to continue that free access while her appeal was being considered. The link from the GOV. U.K. site says that the IHS fee is refunded after the appeal has been refused, suggesting that while the appeal is active, the applicant is entitled to get free NHS treatment but, again, I would think that only applies if the applicant has been on a visa that allowed free treatment, which a fiancé visa does not allow. We know that applicants for fiancé visas do not pay the IHS fee when applying. I feel that if she is sure she meets the financial requirements, she should ask for an Administrative review or reconsideration , even though I understand that was not given as an option in her refusal letter.