visa urgently required for pregnant wife

[frustratedbrit]

I am a UK national. I met my wife 3 years ago in Vietnam, where I was living until last year. We married 1 year ago, and she came over with her son (from another marriage) to live with me in the UK on a 6-month family visitor visa. Whilst here we sought advice from the NHS (local walk-in clinic and GP surgery) and local schools about whether my wife/stepson were entitled to NHS care and state schooling, showed them the visas, and the answers came back yes. Indeed we were under the impression that we were legally obliged to send her 5-year-old son to school. All of this advice may have been wrong, but this is what we were told. My wife fell pregnant whilst here and started to receive NHS care.

Their visas expired in January and so they returned to Vietnam, to reapply for a visa. We did not feel confident to apply for a spouse settlement visa because at that stage I was only in very short-term (3 month) employment. She applied for another 6-month family visitor visa for her and her son, and heard this week that it was turned down. The reasons given were not particularly explicit, but seemed to suggest that she was not entitled to NHS care, despite our advice. Also they pointed to the fact that her son attended school as evidence we would break a 6-month visa.

Yesterday I heard I finally got a job. She is now 5.5 months pregnant. Spousal settlement visa processing times are apparently 2 to 3 months, which would take her over the 7-month-pregnancy flight restriction.

We are currently tearing our hair out about what to do. We don't want to live apart for 5 months, and yet I don't want to give up my newly-found, difficult-to-find, well-paid job. And in any case, we would very much prefer to have the birth in the UK. Obviously I would prefer not to pay 7,000 or however much it costs to have a private birth. Can anyone advise the best thing to do? Does an appeal stand any chance, given her pregnancy? Does anyone know whether we are/are not entitled to NHS care or state schooling on a visitor visa? Help please!!

[Lucapooka]

Most airlines operate a policy of 36 weeks being the limit but anyone beyond 28 weeks needs a doctor's letter saying there are no foreseen complications. I've not heard of visas being expedited for reasons of mothers wishing to avail themselves of the NHS rather than stay in their current location. Even if her location offers a premium settlement service, the fact that she has been refused a visa previously makes her ineligible for this.

[vinny]

Visitors are not normally entitled to free NHS (except at A&E) treatments nor state schooling (except some short programmes or exchange visits).

If she intends to settle, then she may apply for a spouse visa.

Her son may apply for a child settlement visa, subject to sole responsibility (assuming son's father is alive), etc.

[frustratedbrit]

It puzzles me why the doctors' surgery and school were not aware of this. We asked them whilst here whether my wife/stepson were entitled to NHS care and state schooling, emphasised we only had a visitor visa, showed them the passports, and the answers came back "yes".

In fact, according to the legal immigration rules here
http://www.ukba.homeoffice.gov.uk/polic ... ationrules
"public funds" is a precisely defined term (see Paragraph 6, on the Introduction page). It refers to housing and various state benefits, but nowhere is the health service or schooling system either directly or indirectly referred to. So the "no recourse to public funds" aspect of a visitor visa cannot be the aspect of the immigration rules that disallows access to the NHS and state schooling. Could you point me to which part of the immigration rules do talk about NHS and state schooling entitlement or lack of?

[vinny]

With the ever changing laws, I'm not surprised.

See also Overseas visitors accessing NHS primary medical services.

If you are a visitor to the UK or have temporary permission to live here (known as 'limited leave to remain'), you may be able to register with a GP in your area and receive free treatment. The GP can decide whether or not to register you. You may not be able to receive the full range of hospital treatment, because you must be a permanent resident or have lived here for a year to qualify for it. This applies even if you are a British citizen or have lived or worked here in the past.

In paragraph 320(22) and 322(12) of these Rules:
...
"relevant NHS body" means
...
"relevant NHS regulations" means
...

Education - 46A(vii)

[frustratedbrit]

Thanks very much for these pointers Vinny, this really helps.

Do you know of anything equivalent for schooling?

[vinny]

Education - 46A(vii)

[frustratedbrit]

Ah yes, thanks. So schooling itself is not an issue. It sounds like they are questioning the *intention* in applying for a visa - whether the intention is to be with me or to receive NHS care and state education.

I have a short term job in the UK, and after that I'm not sure what I'll be doing. Surely a visitor visa is the most appropriate. Personally, it sounds that an appeal would stand a good chance, and would be quicker and cheaper than applying for a settlement visa. I can show we have the funds to pay for a birth if necessary. Surely it is unreasonable to expect us to have arranged payment of those funds before my wife has actually secured permission to live here during her birth?

[ElenaW]

Schools and GP surgeries are not well versed in immigration rules. They are also not required to be. You are expected to know the rules and follow them and being ignorant is no excuse.

[frustratedbrit]

Sorry, I need to be absolutely clear about where we stand, to focus our appeal on the right aspects. According to the following, we are entitled to free state school education if the local education authority is willing to provide it, even if we just have a visitor visa:

http://www.ukba.homeoffice.gov.uk/visas ... education/

and VAT 9.5 in the following only refers to student visitor visas, not to family visitor visas:

http://www.ukba.homeoffice.gov.uk/polic ... 9/#header5

Assuming that we can establish that exercising this entitlement is not the *purpose* of the visit, then this cannot be rightly used against us as part of a visitor visa rejection, surely. Am I right or not?

[vinny]

Schools and GP surgeries are not well versed in immigration rules. They are also not required to be. You are expected to know the rules and follow them and being ignorant is no excuse.

It may be unfair to expect visitors to know the complex Immigration rules when some Entry Clearance Officers do not.

[anniecc]

Based on your post, it sounds as though what you ultimately want is to live together with your wife and your stepson in the UK. The family visitor route isn't designed for that. It sounds as though UKBA has refused your wife's second application because they concluded that her intention wasn't really a temporary visit. They are understandably strict on repeat family visitor applications. I think the significance of the NHS and the school enrollment isn't that family visitors aren't allowed to use those services, but that to UKBA they suggest your wife's intention to remain in the UK longer-term. From their perspective her pregnancy may provide further evidence towards the same conclusion.

I don't know what the chances are of an appeal, but it sounds as though it might make more sense to focus on meeting the requirements for an application in the spouse settlement category. You say you don't want to be apart for 5 months, but presumably a separation was on the cards anyway, albeit six months later. I don't think you'll find it any easier to be apart once you have a young baby. I understand that you'd rather the baby was born in the UK, but if that was important to you perhaps you should have waited to become pregnant until your wife had settled status.

[frustratedbrit]

It may be unfair to expect visitors to know the complex Immigration rules when some Entry Clearance Officers do not.

That is shocking about the culture at the UKBA. Very interesting reading, and it explains the dismissive writing style in our refusal letter. It sounds like we got a "refusal king" processing ours. We think we would succeed in an appeal, but we're not going to appeal because apparently the backlog is currently about 3 or 4 months. Instead we're choosing another route.

Here are the listed reasons for rejection, in case anyone is interested:

- 1. you initially completed a long term visa application for 1 year stating that you intend to be in the UK from April 2012 to March 2012. You stated in an interview that this was an error and that you fully understand the rules of a visit visa and that a settlement visa only allows you to stay in the longer

[ we always intended to get a 6-month visa, but opted for a 12-month visa during the on-line application process, thinking this would save future hassle; the website only tells you the fee after you submit the application, and it is several times the fee of the 6-month visa; we contacted the British embassy who advised us to amend the printed out form by pen to 6 months ]

- 2. During the interview you stated that you are 5 months pregnant and that it is your wish to have the baby in the UK, and that you have the savings to meet the cost of the medical treatment. However, you have submitted no evidence of any arrangements or payments for the birth of your child in the UK. You also state that on your previous trip your son attended the local primary school. This leads me to doubt your intentions in the UK as a family visitor.

[ no acknowledgement of my wife's good record of visa compliance: she and her son left the UK when their 6-month visas expired, when she and the NHS already knew she was pregnant, she was already getting free care, and my stepson was already getting free schooling ]

- 3. I am also aware that during the interview at question 13 you stated that it is your intentions to apply for a settlement visa one month after arriving in the UK because you want to settle with your husband.

[ so hopes of eventually living in UK with British husband is reason to reject a family visitor visa????? ]

- Having considered all the information before me, I am not satisfied on a balance of probabilities that your are genuinely seeking entry to the UK as a visitor or that you intend to leave the UK on completion of your visit

Crazy.

[anniecc]

- 3. I am also aware that during the interview at question 13 you stated that it is your intentions to apply for a settlement visa one month after arriving in the UK because you want to settle with your husband.

[ so hopes of eventually living in UK with British husband is reason to reject a family visitor visa????? ]

But she didn't say "eventually", she said she was intending to apply in one's month time. There is no visa that allows a person to come to live in the UK while they're waiting for their settlement application to be processed. UKBA don't want the hassle and expense of deporting all the failed applicants.

[frustratedbrit]

Anniecc, surely a subsequent visa application should be judged on it merits at the point in time at which the application is made, whenever that may be. If so, why should having an intention to make a future application make any difference to a current application? That future application, if inappropriate, will surely get thrown out if and when it is made.

[anniecc]

Yes, each application is judged on its own merits. For the purposes of a visitor application the immigration officer will need to be convinced that the applicant's intention is to visit the UK for a short period and to leave at the end of it. If the applicant says that they're coming to the UK to have a baby and apply for settlement, those are things that suggest an intention to stay for longer than six months. It's the applicant's intentions during the period covered by the visa that are crucial.

The fact that UKBA have rejected a visitor application should not have any bearing on your prospects of a successful application for settlement. Good luck to you and your family.

[vinny]

- 3. I am also aware that during the interview at question 13 you stated that it is your intentions to apply for a settlement visa one month after arriving in the UK because you want to settle with your husband.

[ so hopes of eventually living in UK with British husband is reason to reject a family visitor visa????? ]

Unfortunately, yes.

[frustratedbrit]

Anniecc, you missed my point. If an application is "judged on its own merits" then by definition this means not taking into consideration anything to do with other applications, past or future. The UKBA, it appears, don't do this.

Anyway, for those that are interested, what happened in the end was we applied again for a 6-month family visitor visa for my wife and stepson. We attempted to address all the concerns of the previous application:
- we pointed out that I have a 6-month employment contract, after which I did not know which country I would be living in;
- we emphasised that our motivation was simply to be together, not to use free state education or to use the NHS;
- we pointed out that we were legally obliged to send my 5-year-old stepson to a school whilst in the UK (and even that UKBA webpages point this out), so that was not fair to use as evidence against us;
- we showed evidence that we had looked into a private UK birth, showing correspondence with a private hospital, with a price quotation and me showing I had more than adequate savings to pay for it;
- we pointed out that my wife and stepson left the country at the expiry of their previous visitor visas, when my wife already knew she was pregnant and my stepson was already attending state school, and so this strongly suggested that they would abide by whatever visa conditions they were awarded;
- we pointed out that we had become aware that applications for a settlement visa were not allowed to be made from the UK whilst on a 6-month visitor visa, and so we obviously had no intention of making an application for a settlement visa during the visit;
- we even had a letter of support written by an ex-colleague of mine who is a professor and Fellow of the Royal Society.

The application was again rejected. They just said, despite what we said, they didn't believe that they would leave the country after 6 months, did not believe that my wife would have a private birth, and did not believe that her intention was primarily to live with me but to get free state education for her son and free NHS birth for herself. They even used the letter of support from the FRS against us: they nitpicked about the wording of his letter, in which he said "I support her application to *live* in the UK with her husband". Use of the word "live", rather than "visit", apparently suggests to them intention of permanence, and thus intention of breaking the 6-month term of the visa.

I cannot think how the application could possibly have been stronger. It is completely impossible, it seems, for a British man to get his pregnant wife and school-age stepson a 6-month visitor visa.

[pennylessinindia]

From all that you have posted you have not shown that your wife is a visitor but that she plans to live in the UK and give birth there too! Why did you not just apply for settlement visa and be done with it. You have wasted valuable time and your baby will not be born in the UK
If the purpose of the trip was private medical care she should have applied for a visitor medical visa

[geriatrix]

See also upcoming changes to family migration.

[frustratedbrit]

Hi Pennyless.

Here's the reasoning behind our decision:

We didn't see why a family visitor visa was particularly unsuitable for our case. When applying for the most recent application I had a 6-month employment contract, and may be working in another country when this expires. To us (not experts on UK immigration), a 6-month visitor visa seemed a perfectly logical path to take.

But to go back to the time leading up to this, she became pregnant whilst she was in the UK on a 6-month visitor visa. When this visitor visa ran out, she returned to Vietnam, just over 3 months pregnant. We knew that it would take at least 2 or 3 weeks to gather together the information required for a settlement visa, possibly more. Also, we heard that it takes 3 months to hear back from the UKBA once a settlement visa application had been made. Also, with the Olympics approaching, we expected average processing times might take even longer. This made us worried that she would not be able to fly because the airlines would not let her if she was over 7 months pregnant.

Also, at that stage I did not have a job, and although hard to get good information about this, we heard that I needed a job in order for her to get a settlement visa. Another factor was the 800 GBP per person application fee for a settlement visa, which means 1,600 GBP for mother plus child - we could easily afford this from my savings, but it is not an insignificant amount of money to shell out, especially when not having a job, for something that might not succeed.

Taking all of this into consideration, we thought that it would be most sensible to apply for another family visitor visa. Nothing at that stage had given us the impression that in some ways it might actually be more difficult to get a 6-month family visitor visa than to get a 27-month settlement visa (but having heard some posts here, it sounds like this might be the case). But anyway, to our surprise our family visitor visa got turned down, and we applied again one month later for the same thing (see my above post) and that got turned down as well.

With the benefit of hindsight I'm not sure what we could have done better. I still think that the settlement visa application would have been very likely to have failed because I didn't have a job at that time, and even if it did succeed then there would have been significant risk that it would be processed too late for her to fly anyway. Certainly everyone I talk to in the UK about this (other than experts such as on this forum) is in complete disbelief that it would be so difficult to get my wife into the UK. It is a nasty shock for us to go through this experience. The arrogant style in which the ECOs write their rejection letters only serves to rub it in further.

[Casa]

Unfortunately, unless you are in a position to submit a Spouse settlement visa before the 9th July you will be subject to the new rules, which are even tougher.

[frustratedbrit]

My employment contract in the UK has now expired and I'm now back in Vietnam to join my wife, stepson and newly-born daughter. I have been forced to live apart from my family over the past 11 months, except for short term visits to Vietnam, because 2 spousal visit visas have been refused and I do not yet meet the financial requirement for sponsoring spousal settlement visas (and I'm not even sure I want to follow the somewhat precarious settlement visa route anyway). I plan to rent out my flat in the UK, but have not done so yet.

I want to bring my family over to the UK for 6 months, possibly to live with in my parents' house or possibly to live in my flat. My parents have not seen their grandaughter yet. Also, I may have another 6-month employment contract in the UK lined up shortly. We do not plan at this stage to live permanently in the UK, although that is a possibility for the future. The type of work I do is very well paid when I can get a contract, and there aren't really any opportunities to do it anywhere else other than the UK (apart from perhaps Germany or Belgium).

So, my questions:
1. Who would be the best sponsor for a visitor visa for my wife and stepson - me or my parents? If I am the sponsor again, would it be highly likely that they would reject the application again (on the same old grounds of suspecting that my wife/stepson intend to settle in the UK)? Would we stand a better chance if my parents were sponsors?
2. Does my wife stand a signficantly better chance given that she is no longer pregnant? A secondary reason mentioned in the last refusal was that she was pregnant and intending to come to the UK to use the NHS for free. And indeed do we now stand a better chance because we now have a daugther (who has joint British and Vietnamese nationality)?
3. Do we have to address the reasons for the last refusal in our new application? I tried to do that last time and the ECO just seemed to ignore everything I had written.
4. Do supporting letters make any difference at all? Last time a senior British university professor who I have known professionally for several years kindly wrote a letter of support, and it didn't seem to help at all. The ECO even nit-picked about the wording of his letter, using it as evidence that we intended to settle in the UK rather than visit. I don't want to bother this eminent man again if it doesn't make any difference.
5. Is an English language certificate important at all? My wife's IELTS exam result recently lapsed (i.e. is more than 2 years old).

[Franko]

The type of work I do is very well paid when I can get a contract, and there aren't really any opportunities to do it anywhere else other than the UK (apart from perhaps Germany or Belgium).

Have you looked into the EU route? you can take your non EU spouse to live with you in any EU country, No english requirement, no income requirement nothing. Simply that you be married are an EU national yourself and your intending to go to that country to live and work. (Treaty Rights)

[frustratedbrit]

Hi Franko,

Yes, good question, but don't I need a job in a non-UK EEA country first? I am currently looking for such a job. In the interim, I can't handle being apart from my family any longer, and yet would like my parents to see them and would like not to turn down a lucrative 6 month UK work contract if offered one. If push came to shove and I was offered work in both the UK and Europe, I would take the Europe option, to bring a long term solution to this chaos.