NHS access and the spouse visa

[Davec]

My wife (outside the EU and EEA) received the UK spouse visa in 2016. It expires in July 2019. However, she has not been in the UK for the life of the spouse visa to qualify for UK residence at the end of the visa, when it expires.

I paid for my wife to have NHS at the time of applying for the spouse visa, through the health surcharge.

Even though at the end of this visa, she will not qualify for the second visa and later for UK residence, can she still use this visa to have NHS access before it expires in July?

After all, the UKVI could only determine that she does not qualify for UK residence in 2019, at a point after after the visa expires. You can argue that until then, she is free to use free NHS services like someone who wil eventually qualify for UK residence.

What's the situation on this please?

[Casa]

Yes, your wife continues to have free access to the NHS.

Ensure you apply for FLR extension before her current visa expires, when she will have to pay another NHS surcharge fee.

If she has a shortfall in the 5 year qualifying period she will have to make up the gap by submitting a second FLR(M) application. On what date did your wife enter the UK on her Spouse Settlement visa

[secret.simon]

Casa, won't the wife be subject to the Habitual Residence test?

As I understand it, even British citizens resident abroad and EEA citizens are subject to the test, so it is not impossible that the non-EEA spouse would be subject to the test, even if they have paid the IHS.

[Casa]

Casa, won't the wife be subject to the Habitual Residence test?

As I understand it, even British citizens resident abroad and EEA citizens are subject to the test, so it is not impossible that the non-EEA spouse would be subject to the test, even if they have paid the IHS.

I had assumed (perhaps wrongly), that the OP's wife is residing in the UK on her Spouse visa but a delayed entry will leave a shortfall in the 2.5 year qualifying period.

[seagul]

As per OP initial post what he might be asking that her partner's spouse visa extension is not looking possible perhaps they might not be able to meet the requirements but he has paid IHS for his partner's initial visa. So what he is trying to ask that whether will his partner be able to access NHS even not by remaining on same visa which is going to expire in July 2019.

[Davec]

Hi Casa

In answer to this query from you

"Ensure you apply for FLR extension before her current visa expires, when she will have to pay another NHS surcharge fee.

"If she has a shortfall in the 5 year qualifying period she will have to make up the gap by submitting a second FLR(M) application. On what date did your wife enter the UK on her Spouse Settlement visa."

My understanding of spouse visa rules is that if the holder of the visa fails to live in the UK for half or more of the time allocated in the visa, their application for the second visa to UK residency will automatically fail. As she failed to meet that criterion. If I have this right, she fails by quite a wide margin to meet that qualification. So, if I have this right, we have no plans to try to move onto the next step, for UK residency, since it would be pointless.

Because of this, she is strongly considering simply applying for a 2 years visitor visa to come here when the spouse visa ends. Of course, under visitor visa rules she has to leave the UK for 6 months in each year. And of course she loses the right to free NHS treatment, as it's a different type of visa.

Maybe, when her situation is better in her home country, she might re-apply for a spouse visa. This time ready to make the commitment to live here for at least 6 months in a year. Whether UKVI will be very interested in giving her a second spouse visa until a period of time has elapsed, after failing to use the first one sufficiently, is another question.

[Casa]

In the circumstances, your wife is unlikely to be granted a visitor visa due her previous intention to settle.

Spending 6 months on a visitor visa each year may be seen as 'residing' rather than 'visiting'.

For any visitor visa application to succeed, she would have to submit evidence of stronger ties to her home country than she has in the UK. With a husband living in the UK this would be a considerable challenge.

[Davec]

Just to contunue a bit. I'm not clear what you refer to when you write:

"If she has a shortfall in the 5 year qualifying period she will have to make up the gap by submitting a second FLR(M) application. On what date did your wife enter the UK on her Spouse Settlement visa."

So far as I am aware, if she failed to live in the UK for anywhere near enough time with her first visa (the spouse visa) lasting the first 2.5 years, that's the end of the story for UKVI. If for example, she only lived in the UK for a total of 6 months during the life of the spouse visa, so far as I know, there's no chance she can "make this up," since UKVI will conclude that there's no way she can apply for the second visa with a remote chance of success. She would be wasting her time and money by so attempting.

On the second message, we have ownership of a large apartment in her home country, she has family ties there, and we are hoping to start a business there next year. So she has strong ties to her home country. These ties, in fact, are the reason she decided after all to live there and not in the UK. In order to keep in touch as a married couple, I regularly go to her home country to see her and our family. She more occasionally comes here.

I am informed that under the 2 years visitor visa regime, she can stay here for a maximum of 6 months in a year as a visitor. However, it may be the case she is only initially given a 6 months visitor visa. Depends on what happens.

[Davec]

BTW - This may be confusing responders. By "second visa" I mean the visa for indefinite leave to remain (ILR). Leading to UK residency after 2.5 years. Making the 5 years total process referred to by responders. The "spouse visa" she has is only for temporary leave to remain. Leading to ILR if the applicant met the TLR rules on UK residency (over 6 months UK residency in each year). So what I'm saying is that she is wasting time and money by applying for IRL if she fails to meet the UK residency rules for temporary leave to remain (lasting for the first 2.5 years).