Entry clearance and NHS Bill

[halifax1]

Hi Amber, Obie & other Moderators,

I would appreciate your help on this matter.
My wife came to the UK in 2013 while she was pregnant and give birth sucessfully, A few days before her visitors visa was to expired, I made an application the the UKBA for leave to remain on article 8. Unfortunately, HO refused and it went to tribunal(first Tier) which was granted but shortly the HO appealed for error of law whicg they were also granted. We then followed it through to the upper tribunal and the upper tribunal found out that, the first tier tribunal erred in law so they set aside the old determination and made a new one, which went against us.

Okay, now... we can't appeal to the court of appeal as i believe it won't make sense for us to do so. Everything I have said ealier include my wive has a british child and currently expecting our second child in a few months. The upper tribunal said, she can voluntarily return after her delivery or when she's well to travel. Now that it looks like she will be making an entry clearance application... We were not issued with NHS bill for our first child ( Will this have a negative effect on her entry clearance application if we don't ask NHS for the bill for her delivery?)

I want to know if she will be refused on her entry clearance when we decide to apply from her home country?
Remeber NHS didn't issue us any bill- what advice can I get from the experts please? Or should I make a new
leave to remain application when our second child is born? any help with the above questions?
Thank you

[Wanderer]

You need to contact the NHS and pay the bill. Remember it's 150% of the actual cost.

Seems a crazy way of doing things, this will probably be a millstone around your neck for years....

[Amber]

So you are British/have ILR and your spouse will be making an in-Country application under Appendix FM?

Under the 2015 charging regulations, to be considered ordinarily resident in the UK, non-EEA nationals must have ILR, so you should have paid (excluding those with IHS).

People applying for settlement as a family member should not be refused under 320(7B) but would be subject to the suitability requirements namely S-EC.1.8. Also consider 320(11) where the applicant has contrived to frustrate the intentions of the rules.

S-EC.1.8. The applicant left or was removed from the UK as a condition of a caution issued in accordance with section 22 of the Criminal Justice Act 2003 less than 5 years prior to the date on which the application is decided.

As neither are the case you should be OK, but nonetheless should contact the NHS payment authority to make payment.

[halifax1]

Hi Amber

Yes, a British. Also as we have gone through the first tier tribunal and was successful but that was put aside by the upper tribunal and it has now been dismissed.

...So we have the option to consider entry clearance and because she is pregnant, she have to give birth before she will voluntarily leave the uk- according to the midwife, she's not fit to fly. We don't want to consider another leave to remain application as the first attempt was not successful.

Remember her first son was born in 2014, that was before the charging regulation 2015 came in place.. So what do you say about that?

The applicant is still in the UK but upper tribunal judge has said, she should give birth first and decide when she will want to return to the home country to make entry clearance application. Should we have to contact NHS authority for invoice for our first child? and request for another invoice when the second is born?

Do I have to make full payments before she commence her entry clearance application or she should be okay if she pays more than half the invoice they issue to her?

Do you think our case represent "Also consider 320(11) where the applicant has contrived to frustrate the intentions of the rules" ?

Amber, if she clears the NHS bill, should her entry clearance be OK if she can meet all requirements?

Thank you

[halifax1]

Hi Amber & Moderators,

Can entry clearance officer refused a spousal application based on the person using her visitors visa to apply for leave to remain in the UK but was successful at the first tier tribunal but decision was set aside and upper tribunal dismissed it.

Do you think this situation warrant 320(7B) for refusal?

Do you consider this as a way to fustrate the rule? I need you take on this as the fustration of the rule is not only to do with overstaying....

[Amber]

You may argue that it was circumstances which lead to the 'overstaying' rather than an intention to frustrate the rules.

[halifax1]

Amber, I think I am not making myself clear or something.

She did not overstayed.. She made application for leave to remain before a 6 months visa was up, so she has not overstayed.

Since the refusal by the homeoffice and back and forth with the tribunal. She's ready to return back to her home country to make entry clearance application but I want to know if they would refuse her?

Do you think she can sought permission to appeal to the court of appeal from the upper tribunal or it is not wise for her to consider as such

[Amber]

So what right has she got to be here?

[halifax1]

I am thinking because she won her appeal at the first tier tribunal for leave to remain based on Article 8 (Britisk child and husband) but the homeoffice has now won their appeal at the upper tribunal. So I am thinking since this process is going on, and her initial application was made before her visa expires. she still had right until now that the Judge saying, she should be allowed to give birth to her second child and then go back home to make entry clearance application.

1. Making application for leave to remain before visitor visa expires( Do they cosider you to be overstayer)?
2.At the moment, her right to stay was given to her by a judge( The said she should birth and returns afterwards) we are thinking of appealing to the court of appeals.
3. What do you think her chances would be if she returns to make an application?
4. Is there a way I can email tribunal letters to you so you advise her on what to do? It looks like you are not understanding my query.

Thanks

[Amber]

Overstayer, if not further leave was granted. But that doesn't necessary mean she'll be refused re-entry considering what's already been discussed.

[halifax1]

Thanks Amber. I am now hopeful for re-entry for her.

Thanks for your help

[halifax1]

Hi Amba & Moderators,

I hope someone can help with my question.
My wife entered the Uk on a visitors visa and gave birth to our first child. The husband and the baby are both british citizens. She made application for flr fp for leave to remain. Home office refused the application and she was given the right to appeal.

We then went to the first tier tribunal and the appeal was heard and granted. Home office then appealed to the upper tier tribunal and it was granted. The hearing took play e and the UT judge set aside the FTT decision and remade a new decision, the decision was that, the appeal was dismissed. She applied to the upper tribunal to request for permission to go to the court of appeal, which was also refused by the UT judge.

We are now thinking of making a new flr fp leave to remain application, as my wife is pregnant with our second child. Do I stand a chance of making a new application or she don't stanf=d a chance? I want to know if she stand a chance of making a fresh application? Also, am I not doing myself any good if I take no solicitor? I need your help to consider this situation.

[member]

Hi Amba & Moderators,

I hope someone can help with my question.
My wife entered the Uk on a visitors visa and gave birth to our first child. The husband and the baby are both british citizens. She made application for flr fp for leave to remain. Home office refused the application and she was given the right to appeal.

We then went to the first tier tribunal and the appeal was heard and granted. Home office then appealed to the upper tier tribunal and it was granted. The hearing took play e and the UT judge set aside the FTT decision and remade a new decision, the decision was that, the appeal was dismissed. She applied to the upper tribunal to request for permission to go to the court of appeal, which was also refused by the UT judge.

We are now thinking of making a new flr fp leave to remain application, as my wife is pregnant with our second child. Do I stand a chance of making a new application or she don't stanf=d a chance? I want to know if she stand a chance of making a fresh application? Also, am I not doing myself any good if I take no solicitor? I need your help to consider this situation.

Can't she simply make a UK Spouse Visa application from her country?

[halifax1]

That could have been an option but..
1. UKBA would frustrate her application if she try applying from home country because of her decision to try to apply from within the uk.
2. little kids are involved so it will be very difficult for her to take the kids back to apply from home country

[joelondon]

That could have been an option but..
1. UKBA would frustrate her application if she try applying from home country because of her decision to try to apply from within the uk.
2. little kids are involved so it will be very difficult for her to take the kids back to apply from home country

Hi ..when did she got refused and what was the reason for refusal ?

[halifax1]

Reason for refusal was for her to go back to home country to make a spousal application.

Are you a moderator? if so, can I get your take. It seems you're asking same questions.

[Casa]

Firstly, moderators simply help to keep the forum running smoothly...they don't necessarily have more immigration knowledge than many other members.
The only comment I can make is that if your wife returns to her home country to submit a spouse visa application from there, she can't be refused under 320(7b) for the overstay or her failed appeal. Her application however could be rejected under 320(11) if she has 'frustrated the Immigration Rules' by using deception or the use of false papers. Unpaid NHS bills could also be an issue for refusal.
However, an out of the country spouse visa application would still have to meet all the standard requirements, including the minimum income level of £18,600 and English A1 level (if applicable).
After the failed appeals, in my opinion you really need professional legal advice.

[halifax1]

Thanks for your feedback. Very helpful.

I don't mind paying the NHS bill and I meet the financial threshold.
My issue is, i am worried they might use "frustration of immigration systems" my way of making application with a visitors visa. That is my concern.
The initial application was led by a solicitor and i have huge sum of pounds, so i was hoping to complete a new application again. Remember the FFT granted the appeal and later the UT refused.

[geriatrix]

Will the fact that a "second British child" is expected add weight to FLR(FP) requirements under EX.1?
If it was refused earlier with one child, can't it be refused with 2 children?

That said, is having a "valid leave" a requirement for FLR(FP) under EX.1 (I haven't checked)?
Under which rule(s) was the earlier FLR(FP) application refused?

[Casa]

Trawling back through your previous posts, I can see that you were given advice on this in your other thread. It would have helped to advise if you had continued there. http://www.immigrationboards.com/genera ... l#p1311463

As I see it, your wife wasn't a visitor who decided to stay on in the UK...she entered while pregnant with the intention to give birth here and then apply to remain. As you are obviously now well aware, a visitor can't switch to spouse from within the UK. The HO has probably taken the view that she didn't enter as a genuine visitor and they are now taking a firm stand against applications that are submitted with an 'anchor baby'...however cynical that may seem. Unfortunately this situation is all too common and is a main reason foreign national husbands/wives are being refused visitor visas, due to the high number of spouses that decide not to go home when their visa expires.

[geriatrix]

Trawling back through your previous posts, I can see that you were given advice on this in your other thread. It would have helped to advise if you had continued there. http://www.immigrationboards.com/genera ... l#p1311463

Thx Casa! Topics merged.

[halifax1]

@Casa, .. That was not the case but it doesn't matter at this point. She was successful with the FFT hearing. So obviously, a judge reckon she had a case to be granted but UTT dismissed.

Are you saying no need to make another application and also she wouldn't be successful applying from home country? You are confusing me with your last post.

[halifax1]

@Geriatrix, It was refused on the same basis. They wanted her to return home to make a spousal application. any advice

[Casa]

@Casa, .. That was not the case but it doesn't matter at this point. She was successful with the FFT hearing. So obviously, a judge reckon she had a case to be granted but UTT dismissed.

Are you saying no need to make another application and also she wouldn't be successful applying from home country? You are confusing me with your last post.

What wasn't the case in your last thread...and what exactly is confusing you in my last post?

[halifax1]

"As I see it, your wife wasn't a visitor who decided to stay on in the UK...she entered while pregnant with the intention to give birth here and then apply to remain. As you are obviously now well aware, a visitor can't switch to spouse from within the UK. The HO has probably taken the view that she didn't enter as a genuine visitor and they are now taking a firm stand against applications that are submitted with an 'anchor baby'...however cynical that may seem. Unfortunately this situation is all too common and is a main reason foreign national husbands/wives are being refused visitor visas, due to the high number of spouses that decide not to go home when their visa expires".

Your insunuation above wasn't the case. She didn't know she was pregnant and mind that she has been travelling to the uk since 2000. We figured it out when she got to the uk and she was advised by the midwife not to travel back. That was the factor with out decision to then make an for fp application. So your point of saying she did't enter as a genuie is totally false and disrespectful. She entered purely on visit but the situation mounted for an application to be made. You should advice based on your experience. What do you think she should do now?