Spouse Settlement Visa Financial requirements for contractor with overseas income

[itsgottabedone]

I have just emailed VFS the following but I suspect they may take some time to answer. I'm hoping applicants in a similar position would be able to provide some insights:

Dear Sir / Madam,

We are about to apply for a Spouse Family Settlement visa for my wife (Thai national).

I have read Appendix 2 (VAF 4A) Financial requirement form and the supporting Annex FM Section FM1.7.

However i have some queries which i believe are not covered in the published documents.

To give some background:

• We are planning to meet the financial requirement through salaried employment (category of partner of applicant (myself - the husband)
• I have been working overseas during 2012 and able to demonstrate my income during the previous 12 months meets the minimum required (£18,600)
• I returned to the UK last month (May) in search of my next job.
• I now have an offer of employment in the UK to commence sometime in July, which also meets the minimum required
• We are also planning to submit our visa application in July, either shortly before or shortly after i commence employment

I'm unclear whether i should complete part 3A (working in the UK) or 3B (returning to uk to work) of Appendix 2:

1. In the event I start employment just prior to the application date:

Annex FM Section FM1.7 sub section 5.3 Category B states - 'Less than 6 months with current employer or variable income - person residing in the UK' suggests in addition to income from current salary that 'Second, the person must in addition have received in the 12 months prior to the date of application the level of income required to meet the financial requirements, based on the gross amount of salaried or non-salaried employment income of the applications partner (in the UK or overseas)'

Section 3.3 Part 3A of the Appendix 2 however only has the option (for meeting the 2nd criteria) of '3.13 Has your sponsor had other salaried employment, in the UK, in the 12 months prior to the date of the application (Category i.e. it does not give the option for income from overseas

Section 3.20 does ask for total income in the last 12 months - Question: can this include overseas income?

2. Alternatively in the event i start employment just after the application date:

Annex FM Section FM1.7 sub section 5.4 Category B - 'the applicant's partner is returning with the applicant to the UK to work, they do not have to be in employment at the date of application to rely on Category B. The application's partner must have a confirmed offer of salaried or non-salaried employment to return to in the UK (starting within 3 months of their return)

Question: Do I meet this criteria if I have already returned to the UK but yet to start my next employment (i.e. if my employment start date is a few weeks after the application date)? My wife is with me in the UK on a family visit visa but planning to return to Thailand shortly to apply for the Family Settlement visa. i.e. we have already returned to the UK (together) and now my wife will go back to Thailand and return to the UK again after receiving her Family Settlement visa - but she will return by herself (the above wording suggests applicant and partner should be returning together)

3.Can you also confirm:

a) My UK employment offer is a fixed term contract, with a daily rate and contracted to work 5 days per week for a fixed 6 month period and payroll if fulfilled via an agency - Question: does this constitute salaried or non-salaried income?

For my previous employment overseas in the last 12 months, i was an independent consultant again on a fixed term contract from June-Dec 2012. I have a contract detailing my name, start / finish dates and a daily rate. I have signed timesheets and invoices for this period but i do not have any payslips from the employer. I do have bank statement evidence that shows the invoice amount being transferred into my personal account - but due to delays in payment from the employer this was made in one lump sum. Question: Is this sufficient or should i ask my previous employer for some kind of pay slip? (my previous employer was based in the Middle East and in general they are very slow and non responsive to such requests)

I would appreciate any guidance you can offer.

[ThaiVisaExpress]

From all the information that you have given, it looks like you cannot qualify at the moment. The reasons will be long and complicated, and I'm sure you will get different opinions here. But, basically, it seems that you have not been employed ( overseas) for some time ( 6 months approx), nor are you returning to the UK to take up employment. You are already in the UK. Because of this, you will need to show that you are employed in the UK, and you will need to provide evidence of at least 6 months income in the UK, plus bank statements to confirm salary paid, and more. I think that if you apply with your current circumstances in July, then the application will fail.

Your situation is unusual, but I think all of your past employment overseas is now irrelevant. To meet the requirements, you would need to show that you have been working overseas during the last 6 months. As I said, your position is complicated. If you would like to have a more detailed opinion ( free, of course ), then please contact Paul at the office ( contact details can be found by clicking on the TVE avatar on the left ).

Tony M

[itsgottabedone]

From all the information that you have given, it looks like you cannot qualify at the moment. The reasons will be long and complicated, and I'm sure you will get different opinions here. But, basically, it seems that you have not been employed ( overseas) for some time ( 6 months approx), nor are you returning to the UK to take up employment. You are already in the UK. Because of this, you will need to show that you are employed in the UK, and you will need to provide evidence of at least 6 months income in the UK, plus bank statements to confirm salary paid, and more. I think that if you apply with your current circumstances in July, then the application will fail.

Your situation is unusual, but I think all of your past employment overseas is now irrelevant. To meet the requirements, you would need to show that you have been working overseas during the last 6 months. As I said, your position is complicated. If you would like to have a more detailed opinion ( free, of course ), then please contact Paul at the office ( contact details can be found by clicking on the TVE avatar on the left ).

Tony M

Interesting ..and thanks for the feedback.

My interpretation of the overseas employment rule is that the minimum financial requirement could have been achieved by employment income at any time during the last 12 months - the wording does not imply that applicant / partner is required to have been employed continuously during this period:

Section 5.4.3 of Annex FM1.7:

'Secondly, the couple returning to the UK must in addition have received in the 12months prior to the date of application the level of income required to meet the financial requirement..'

This is supported by case study example 5.4.5

' ..the applicants partner left her job in China 3 months ago ...From the job that she left, she received an income of £19,000 in the 12 months prior to the application. So part (2) of the Category B calculation for a returning sponsor is met ..'

In terms of 'overseas sponsor returning to the UK' i found the published wording and explanation to be ambiguous but it does cater seem to cater for my situation:

Section 5.4.2:

'First, the applicant's partner must have a confirmed offer of salaried or non-salaried employment to return to in uk (starting within 3 months of their return).

You have highlighted my concern that i have already returned to the UK, however my interpretation (hope) is that this refers to the general process of returning to the UK for employment. In practice most individuals would have to return to the UK in order to seek and secure employment. However, this is not explicitly defined in the supporting document.

If this is the case, i would then have to ensure my employment start date (there is some flexibility) will be after the visa application date (and no later than 3 months) and my hope is this is regardless of whether i am already in the UK or not.

[Tony M]

I understand. I was thinking that, as you have not worked for around 6 months, then your salary during the 12 months prior to the date of application might not, or would not, meet the threshold of 18,600 GBP. That threshold must be met in the 12 months prior to the date of application. If it was, then that looks to be covered.

There are still other concerns - the fact that you are not returning to UK from overseas with your wife. Ambiguity rules here !

Tony M

[itsgottabedone]

A 50 page appendix ..and still confusion over simple terminology.

I think in this case 'returning' is not the physical act of returning itself (what difference does it make if i accompany my wife back to the UK or not) but rather the wider process or re-settling back in the UK after a period of employment overseas. The key is to have firm employment lined up to commence within 3 months of your 'return'.

As company transfers are catered for separately, i can't imagine any situation where an individual who has been employed overseas for the last 12 months would, without having returned to the UK in that period, be in a position to secure UK employment.. while still overseas. It could happen i guess but i think the defined scenario (Section 5.4 Category is more likely, in spirit, meant to apply to my situation i.e. i am still in the 'process of returning'.

But i could be wrong and i would be interested in other opinions as well as a definite response from UKBA / VFS before submitting our application.

One thing that does appear clear is if i start employment before we submit the application (Section 5.3 Category B: less than 6 months with current employer) ..although the requirement is the same (demonstrating income levels based on gross annual salary) there is a difference in this instance between salaried and non-salaried employment. If it's a regular salary from a full time job the requirement can be satisfied by proving gross annual salary (even though employment is has been less than 6 months). If income is 'non salaried employment' there is a formula that is used to determine if the requirement is met. The formula penalizes the less time you have work. I'm a high income earner and i calculate i would have to work 1.5 months before i would be able to meet this criteria... meaning we couldn't apply under some time in August. Hence i was after a more detailed definition of non-salaried employment than the one provided.

[Tony M]

A 50 page appendix ..and still confusion over simple terminology.

I think in this case 'returning' is not the physical act of returning itself (what difference does it make if i accompany my wife back to the UK or not) but rather the wider process or re-settling back in the UK after a period of employment overseas. The key is to have firm employment lined up to commence within 3 months of your 'return'.

As company transfers are catered for separately, i can't imagine any situation where an individual who has been employed overseas for the last 12 months would, without having returned to the UK in that period, be in a position to secure UK employment.. while still overseas. It could happen i guess but i think the defined scenario (Section 5.4 Category is more likely, in spirit, meant to apply to my situation i.e. i am still in the 'process of returning'.

But i could be wrong and i would be interested in other opinions as well as a definite response from UKBA / VFS before submitting our application.

One thing that does appear clear is if i start employment before we submit the application (Section 5.3 Category B: less than 6 months with current employer) ..although the requirement is the same (demonstrating income levels based on gross annual salary) there is a difference in this instance between salaried and non-salaried employment. If it's a regular salary from a full time job the requirement can be satisfied by proving gross annual salary (even though employment is has been less than 6 months). If income is 'non salaried employment' there is a formula that is used to determine if the requirement is met. The formula penalizes the less time you have work. I'm a high income earner and i calculate i would have to work 1.5 months before i would be able to meet this criteria... meaning we couldn't apply under some time in August. Hence i was after a more detailed definition of non-salaried employment than the one provided.

There seems to be no definition of non-salaried employment, other than the income from it must be lawfully derived. It will include cash income ( for instance taxi drivers, market traders, etc), and self-employed people ( who do not pay themselves a salary as such). I think "lawfully derived" also includes showing that tax is paid on that income. Certainly, "cash income" requires evidence that tax is paid.

[itsgottabedone]

Sources of income are defined in the Annex FM1.7.

'Self employment' is covered separately and in detail in this document.

There is also a distinction between 'non salaried employment' and 'non-employment Income'. The later referring to property rental, dividends, allowances etc.

It is important to understand the distinction.

'Non-salaried employment' is defined as (Section 5.1.3):

1. Non-salaried employment includes that paid at an hourly or other rate or paid an amount which varies according to the work undertaken.

Case study example:

1. The applicant‟s partner is in non-salaried employment in the UK. He works on a weekly rota basis and does not receive any paid holidays.

I deduce that non salaried employment refers to those, with typically one sole employer, paid on an hourly basis (or equivalent) but whose patterns of work are variable (hence it falls under 'Category B: Less than 6 months with current employer or variable income')

In my case where i will have a fixed term contract with fixed hours / days of work (as per a permanent employee) but paid on a daily basis. It is therefore open to interpretation whether this is considered 'salaried' or 'non-salaried employment'.

[Tony M]

Sources of income are defined in the Annex FM1.7.

'Self employment' is covered separately and in detail in this document.

There is also a distinction between 'non salaried employment' and 'non-employment Income'. The later referring to property rental, dividends, allowances etc.

It is important to understand the distinction.

'Non-salaried employment' is defined as (Section 5.1.3):

1. Non-salaried employment includes that paid at an hourly or other rate or paid an amount which varies according to the work undertaken.

Case study example:

1. The applicant‟s partner is in non-salaried employment in the UK. He works on a weekly rota basis and does not receive any paid holidays.

I deduce that non salaried employment refers to those, with typically one sole employer, paid on an hourly basis (or equivalent) but whose patterns of work are variable (hence it falls under 'Category B: Less than 6 months with current employer or variable income')

In my case where i will have a fixed term contract with fixed hours / days of work (as per a permanent employee) but paid on a daily basis. It is therefore open to interpretation whether this is considered 'salaried' or 'non-salaried employment'.

That's not really a definition, is it ? It's all fairly open to interpretation, but I guess one interpretation would be that you received wage slips as evidence of salaried employment ? Cash income/salary would be non-salaried, I think. Cash - in - hand income can still be salary, depending on the circumstances.

[itsgottabedone]

Sources of income are defined in the Annex FM1.7.

'Self employment' is covered separately and in detail in this document.

There is also a distinction between 'non salaried employment' and 'non-employment Income'. The later referring to property rental, dividends, allowances etc.

It is important to understand the distinction.

'Non-salaried employment' is defined as (Section 5.1.3):

• Non-salaried employment includes that paid at an hourly or other rate or paid an amount which varies according to the work undertaken.

Case study example:

• The applicant‟s partner is in non-salaried employment in the UK. He works on a weekly rota basis and does not receive any paid holidays.

I deduce that non salaried employment refers to those, with typically one sole employer, paid on an hourly basis (or equivalent) but whose patterns of work are variable (hence it falls under 'Category B: Less than 6 months with current employer or variable income')

In my case where i will have a fixed term contract with fixed hours / days of work (as per a permanent employee) but paid on a daily basis. It is therefore open to interpretation whether this is considered 'salaried' or 'non-salaried employment'.

That's not really a definition, is it ? It's all fairly open to interpretation, but I guess one interpretation would be that you received wage slips as evidence of salaried employment ? Cash income/salary would be non-salaried, I think. Cash - in - hand income can still be salary, depending on the circumstances.

Yes I agree the definitions for salary & non salaried employment are vague. Unfortunately as this is likely to refer to my future employment (under the 3 month rule) I will not be able to share wage slips. My contract of employment with an explanation is the best I can demonstrate - my guess is this would be sufficient but I will wait for the official answer before applying. Too risky to take a chance without some confirmation first. I suspect method of payroll has less of a bearing compared to pattern of employment. Shift workers with variable hours of work will, i suspect, be treated as non salaried regardless of how they are paid. Similarily contractors with a fixed pattern of work (e.g. a 9-5 office job) are more likely to be consider salaried employment (i hope!) IMO cash in hand type of work is more likely to fall into the self employment category - the requirements for this category are quite different.

I think I may follow up my email with a call to UKBA

[Tony M]

Sources of income are defined in the Annex FM1.7.

'Self employment' is covered separately and in detail in this document.

There is also a distinction between 'non salaried employment' and 'non-employment Income'. The later referring to property rental, dividends, allowances etc.

It is important to understand the distinction.

'Non-salaried employment' is defined as (Section 5.1.3):

• Non-salaried employment includes that paid at an hourly or other rate or paid an amount which varies according to the work undertaken.

Case study example:

• The applicant‟s partner is in non-salaried employment in the UK. He works on a weekly rota basis and does not receive any paid holidays.

I deduce that non salaried employment refers to those, with typically one sole employer, paid on an hourly basis (or equivalent) but whose patterns of work are variable (hence it falls under 'Category B: Less than 6 months with current employer or variable income')

In my case where i will have a fixed term contract with fixed hours / days of work (as per a permanent employee) but paid on a daily basis. It is therefore open to interpretation whether this is considered 'salaried' or 'non-salaried employment'.

That's not really a definition, is it ? It's all fairly open to interpretation, but I guess one interpretation would be that you received wage slips as evidence of salaried employment ? Cash income/salary would be non-salaried, I think. Cash - in - hand income can still be salary, depending on the circumstances.

Yes I agree the definitions for salary & non salaried employment are vague. Unfortunately as this is likely to refer to my future employment (under the 3 month rule) I will not be able to share wage slips. My contract of employment with an explanation is the best I can demonstrate - my guess is this would be sufficient but I will wait for the official answer before applying. Too risky to take a chance without some confirmation first. I suspect method of payroll has less of a bearing compared to pattern of employment. Shift workers with variable hours of work will, i suspect, be treated as non salaried regardless of how they are paid. Similarily contractors with a fixed pattern of work (e.g. a 9-5 office job) are more likely to be consider salaried employment (i hope!) IMO cash in hand type of work is more likely to fall into the self employment category - the requirements for this category are quite different.

I think I may follow up my email with a call to UKBA

We haven't been much help ! Let us know what happens.

Your email to VFS will, by the way, be passed to UKBA as VFS is an application centre only. They cannot give immigration advice.