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Senior Partner
Senior Partner, Solicitor
Category: UK Immigration Law
Satisfied Customers: 13248
Experience:  Solicitor
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Dear Sir or Madam I am contacting you to request your help

Resolved Question:

Dear Sir or Madam:

I am contacting you to request your help in resolving a dispute over the legal classification of my wife residential status in the UK. Here is a quick summary of our background:

We are recent migrants to the UK. We moved here because I have accepted a job offer after completing my PhD degree in the USA. I am an EEA citizen and by working here I am exercising a European Union treaty right. My wife of over 10 years is a citizen of the USA and allowed residence here due to her marriage to me; she indicated intent to settle in the UK on her entry papers and the Border Agency confirmed her right to do that and stamped the customary 6-month visa in her passport. We arrived in the UK on January 26, 2011 and I started employment on January 31, 2011.

We are here with the intention to stay (we have opened a joint bank account here, have signed a joint 12-month lease, moved all our belongings to the UK, my wife has taken up employment as well now, etc.) It has been my understanding of the applicable laws in the UK that my wife is allowed to work, and to receive NHS health care services based on her relationship to me, from day 1 of our residence. It has also been my understanding that this right is not based on any paperwork, such as a residency card, or a waiting period of 6-12 months, but on her current situation alone. I believe my wife clearly is 'ordinarily resident' in the UK. (We are going to apply for a residency card this week)

Is that correct? We keep running into situations where my wife is told that she has to be in the UK for at least 6-12 months before she has any of the rights mentioned above. I would just like to have clarity about my wife's status.

Thank you very much for your help.
Submitted: 3 years ago.
Category: UK Immigration Law
Expert:  Senior Partner replied 3 years ago.
Did your wife apply for a Family Permit before coming here?
Customer: replied 3 years ago.
No; we both entered the UK at the same time and my wife filled out the visa paperwork on the plane to London. She got her visa stamp at the point of entry in Heathrow Airport.

We didn't have a permanent address before we came to the UK, so I thought it best to wait until we are settled before applying for the residency card.

Does that answer your question?

Thank you.
Expert:  Senior Partner replied 3 years ago.
Yes thank you. Under the rules as a non EEA national , She should have applied for a Family Permit event though as an US citizen she does not need a visa as a visitor.

She could in theory have been rejected at heathrow but in practice because the UKBA are aware that EEA rights are driven not by UK immigration rules but by EU treaty rights they adopt a soft approach on EEA entrants and their families . It is fortunate you were together.

the legal position is that:

a) Your wife has right to work:

b) She has a right to free National Health service treatment ( everyone has a right of access to NHS treatment for emergencies it is a matter of payment).

The problem your wife has is one of evidence. The NHS are entitled to ask for evidence of permanent residence and employers for example are under a legal obligation to ensure that their employees have a right to work - indeed an employer is committing a criminal offence not only if they employ someone who is not permitted to work but if they fail to get evidence of their entitlement to work.

In those circumstances everyone is likely to ask your wife for evidence and hence she needs to get a residence card as soon as possible so she can prove her status.

If she has the right leave to remain stamped in her passport it will not prohibit her from working and that may be sufficient for a prospective employer but the NHS may well want more.

Customer: replied 3 years ago.
Thank you very much for your answer. I just have one more clarification question.

We are going to apply for a residence card this week; the problem with the application is that all evidence regarding her status, plus both of our passports, are to be submitted, while that the application is likely to take well over a month to be completed.

My wife has actually been referred to an NHS hospital by our GP last week, and the hospital has refused to accept my wife as NHS patient, purely upon viewing her passport. I would like to get that issue resolved before we send all our original documentation away.

So to clarify: if my wife is entitled to free NHS care, is the NHS hospital obliged to accept her as an NHS patient, or do they have the legal right to demand private payment for their services, without reviewing our documentation? (Is there any established dispute resolution procedure in cases like these?)

Again, thank you very much.
Expert:  Senior Partner replied 3 years ago.
There is some general information here http://www.dh.gov.uk/en/Healthcare/Entitlementsandcharges/OverseasVisitors/Browsable/DH_074376
but short of taking legal proceedings there is not much you can do. the regulations place the responsibility with the local hospital so all you can do is to complain to the healthcare trust or pay for the treatment and sue for the money back.

I am not aware of any dispute realisation process at Department of health level but there is an ombudsman you can complain to. see here http://www.ombudsman.org.uk/
Senior Partner, Solicitor
Satisfied Customers: 13248
Experience: Solicitor
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