UK FLR visa earning rule

[Trevor1809]

Given the problems I had a few weeks back trying to make a premium visa application I am now using an immigration solicitor.

As I am a Director of a limited company the solicitor raise the issue of only having a profit last year of only £16000. As I pointed out the joint income before profit was £29000 so exceeding the minimum level before adding the dividends by a long way.

The solicitor is concerned that the tick box checker will only pay attention to the profit on the accounts and not focus on the P60s and pay slips as I will be applying under 7.3 B option F.

It really bugs me that my wife has to apply under the self employed option when both of us are Directors but exceed the earnings limit salary alone.

Given how the pressure must be on rejecting the application rather than look a little deeper I am expecting the application to be rejected.

Am I worrying unnecessarily?

[7by7]

The ways of meeting the financial requirement and the evidence required depending upon which category(ies) you are using can be found at Appendix FM Section 1.7 and Appendix FM-SE Family members - specified evidence

So I suggest that you either get your solicitor to read those, or find another advisor who is more experienced in this area.

BTW, you say "Given how the pressure must be on rejecting the application rather than look a little deeper I am expecting the application to be rejected."

Why do you think there is pressure to reject applications?

The 'pressure' is to look at each application and see if all of the requirements, including the financial one, are met and if the required documents showing this are included. If the answer is 'yes' to both, then the application will be successful.

[KNJ]

P60s and Payslips are what is required, original for at least the last 6 months. There should be no issue if you supply that.

If you have additional dividends give them originals of that.

You need to also supply copies of the originals or risk not having them returned

[Trevor1809]

Why do you think there is pressure to reject applications?

This http://www.theguardian.com/commentisfree/2015/aug/03/ai-weiwei-visa-system-chinese-artist may be and all the other horror stories I read here and the experience of the settlement visa may be.

Well I maintain I am not self employed. In the eyes of HMRC I am not self employed but this is how the settlement visa was very nearly not allowed.

We exceed the earnings requirement by a long way based on salaried earnings so I could presumably complete section 7.3A income from salaried employment.

I am however Director of my own company and therefore I am forced to answer under 7.3B income from self employment even though HMRC and my accountant say that I am not self employed. 7.3 B option F a says How much did you or your sponsor earn from self employment in the last financial year. Well from self employment, if that means dividends from the company, then it is £16000. ie below the limit but then there is £29000 of salaried employment.

Unfortunately if a get the same tick box checker who makes things up and refuse wei wei's visa then my wife's visa will be refused, she will be deported and I will probably be unable to afford the stonking legal fees that will guarantee the refusal will be overturned at appeal. That will in all probability take over a year.

I have already been stung by UKVI into paying £1000 in NHS surcharges that I can't now get back. I am about to launch a parliamentary ombudsman's complaint to get it back.

I will have to pay it again when the final application goes in as when UKVI wrote to my MP they them selves said that any NHS surcharge payment is limited to that application, their words not nine.

So you can see if I am hesitant. It is all very well living on the fact that you do exceed the earnings requirement until the visa is rejected. Isn't there a thread further down from a pensioner who exceeds the requirement but non the less had his wife's application rejected. The suggestion is that he sent the wrong back up data.

The question is quite explicit, how much did you earn from self employment. If UKVI look at the accounts see a profit of £16000 against my declaration of £44000 then don't look any further then I am screwed.

[Trevor1809]

In the guidance notes for self employment 9.3.2 it says for those employed as a Director of a specified ltd co in the UK the relevant financial years will be that covered by the Company Tax Return CT600. The CT600 specifies a net trading profit of £22872. The accounts show an operating profit before tax of £20858 and tax on profit (£4574). Profit for the financial year £16284.

So combined I have earnt £45000 after tax on profit or £49,000 before tax on profit. So if they take the CT600 figure although it exceeds £18600 it is not what I have earnt.

It goes on to say in 9.3.6 Income under category F or G can be combined with income from salaried and non salaried employment. So if UKVI look beyond the CT600 and look at the pay slips and P60s then I should be fine. If they stop at the CT 600 then in theory I should be fine. Or If I get somebody who says this is all too difficult then who knows.

My only hope is that I don't get the same person who did the pensioner's wife's FLR and doesn't simply say nothing stacks up, in their view, and rejects the whole application.

[maxtwo]

My immigration solicitor gave me more grief than the immigration service did.

[Trevor1809]

I suppose that is the issue. If you have a good immigration officer who doesn't pre judge then every thing will be fine. If in my case Immigration doesn't look beyond the CT600 then who knows.

I don't know what I am looking at half the time so how can an immigration officer be expected to understand it.

[bobrussell]

All UKVi staff should be fully trained in their job. They should know the rules and how to interpret them correctly.There is absolutely no excuse for any staff member not fully understanding their jobs.

For the sake of applicants there should be proper quality control.

Much improved help and guidance should be provided on the website where applications are made. Not the lets go round in a circle we have at present. The application form is terrible.

There should also be a properly functional complaints procedure which can be accessed by applicants when things appear to have gone wrong. At present there are major delays in dealing with complaints and little or no enthusiasm for improvement.

The system may function 90% of the time but for 10% it stinks IMO!

[Trevor1809]

Tell me about the complaints procedure. I was trying to make a premium application appointment and finished up having to pay two NHS surcharges only to be told that no appointments available. Can I get the £1000 back, can I hell.

I assume everybody who pays the NHS surcharge and then get their visa application rejected also can't get the NHS surcharge refunded.

Yesterday I heard that my MP is going to be made the Minister in charge of the Syrian refugee crisis so you can see where his focus will be concentrated now. Not that he did anything before he got the job.

[durhamboy]

Trevor, I think you can get an IHS surcharge refund. In the website where you make your payment and get a reference number there is a refunds section. No idea how good it is but good luck.

[Trevor1809]

Yes I agree but finding out how the refund system works is the problem. I don't think they know themselves. I have emailed, my MP has emailed, I have written. I was told to phone the help line and they didn't know what I was talking about. They are hopeless.

I know some people here defend UKVI but as far as I am concerned that are thoroughly discredited organization and a law unto themselves.

[7by7]

The case of Ai Weiwei does not show that decision makers are pressurised into refusing; he was granted his visa but it was limited to three weeks rather than 6 months.

The horror stories one reads on forums such as this are not indicative of the whole picture. Very few people post on these forums when everything goes through without a problem, as most applications do. It is only when there are problems that people will posts to seek advice or complain.

UKVI do make mistakes, far to many, and it can be next to impossible to get an answer or any advice from them. But it needs to be remembered that they did not make the rules.

The current financial requirement is, as I have said many times, ill thought out and not fit for purpose; but again that is down to the previous government, not UKVI.

Even Parliament cannot be blamed; the government introduced the changes of July 2012, which include the financial requirement, via Statutory Instrument; so Parliament never got to vote on them.

You seem to be saying that you and your wife have two sources of income; salaried employment and from your directorships.

The two can be combined to meet the financial requirement; as you seem to be aware.

In which case, provided you supply the specified evidence to show this, I cannot see any reason why you should have any problems.

If you are concerned that the decision maker will not look at all the evidence, then include a full list of same.

Edited September 15, 2015 by 7by7

[bobrussell]

The whole system is not fit for purpose!

The main point of contact for most is the Visa4UK website. UKVI cannot even change the type of visa being applied for as we found out a few months ago. If you make a mistake with the form (in our case applied for a visit visa but made it clear that the actual application was for an EEA Family Permit because we could not find the correct form) then the ECO is not able to change the category!

The guidance notes are almost completely absent despite the comments that help is available on the website. The non-EU helpline is very expensive and if answered at all, has only stock answers rather than proper help that would be expected from an experienced ECO.

Visa4UK has not even caught up with the written guidance notes that were freely available when forms were downloaded and filled in by hand. Having spoken to an EU advisor on that helpline, it is clear that the form is causing immense grief for applicants and staff alike.

A lot of the 'mistakes' made are because of misunderstandings created by the total disconnect between applicants and the staff processing the application. Often a quick phone call would have sorted things out.

UKVI are quite good at giving visas to those that should not have them so it works both ways! Clearly these people are not going to complain!

The Home Office managed to naturalise a bigamist, someone without ILR and someone with a long history of custodial prison sentences. Detected when the Chief Inspector of Borders and Immigration checked random applications!

Edited September 15, 2015 by bobrussell

[7by7]

Bob, you and I agree on most things, so it pains me to say this.

Any system which involves human beings making judgements is prone to error.

Yes, UKVI, whether ECOs in post or decision makers in the UK, do make mistakes and sometimes people who should not be granted a visa or LTR are, and sometimes those who should have been are not.

But in the vast majority of cases, provided the applicant provides the required evidence, they do get it right; as I'm sure your research will have shown you.

Whilst the system is by no means perfect, to say it, and UKVI, is not fit for purpose based on errors which total a tiny fraction of all applications is, to be blunt, pure scaremongering!

As is judging the system on press reports of individual cases.

I don't know how many visa, LTR and citizenship applications in total are made in an average year, but it must run well into 6 figures.

How many of those applicants are dealt with correctly and accepted when they show that they meet the requirements, refused when they don't? Nearly all I would suggest.

Whilst mistakes should not be ignored, my belief is that forums such as this should mainly be concerned with advising people how to prepare an application properly so that they get the right result.

Edited September 15, 2015 by 7by7

[bobrussell]

I have been regularly reading and digesting the reports by the Chief Inspector of the UKBA (now Chief Inspector of Borders & Immigration over a period of years. Thankfully now more for entertainment than need as my wife is now British!

I have had a number of run ins with them over the years and involved my MP several times.

My comments are based on the run around I have received from UKBA and UKVI plus the findings of the numerous reports from the Chief Inspector.

I agree that most visa applications are processed without incident but an important minority are dealt with very poorly indeed. Examples of these errors are clearly presented in these reports.These are based on random samples so should be representative of the whole caseload.

The Chief Inspector has been very critical of the on-line system and I stand by my belief that there is inadequate monitoring of standards (although slowly improving perhaps). There is inadequate assistance for applicants and professional help should be required only in the most extreme circumstances.

Clearly a good, well thought out application is going to slide through the system more smoothly than a less well considered one. Applicants are not professionals and should be assisted so the right result can be reached.

Until ECO's start to interact adequately with applicants it is likely to remain somewhat of a lottery for a minority.

[Trevor1809]

The case of Ai Weiwei does not show that decision makers are pressurised into refusing; he was granted his visa but it was limited to three weeks rather than 6 months.

As you well know he applied for a 6 month visa but UKVI only granted a 3 week visa as they said that he had hidden the fact he had a criminal record. That was untrue. It is disingenuous to suggest that UKVI had acted properly when they had engaged in blatant discrimination. I hope that whoever made up that he had a criminal conviction was severely reprimanded. Their job is to deal with facts and evidence and not to make things up or base decisions on their own prejudices.

[bobrussell]

The ECO and presumably his or her manager determined he had a criminal conviction that was not declared. They were completely wrong and clearly should have had a quick look at Wikipedia!

The level of competence shown is a disgrace and a major embarrassment to the UK. I would like to think there were repercussions but I doubt it!

[Trevor1809]

Whilst mistakes should not be ignored, my belief is that forums such as this should mainly be concerned with advising people how to prepare an application properly so that they get the right result.

I can't disagree with that however the application form is very confusing when dealing with Directors of limited companies. I certainly hope not to be reporting in a few weeks that my wife's application was turned down for failing to meet earnings requirements.

I can only assume that an Immigration solicitor with many years of experience is talking with some knowledge. She was also concerned that I had intended to include my child tax credit awards, zero for anybody who may think I was receiving CTC however I am legally obliged to notify HMRC of a change of circumstances irrespective of whether my wife has recourse to public funds, the fact is I do. Has anybody had experience of this?

It may be anecdotal but the most posts here that feature problems with visas do seem to be UK visa applications.

[Richard W]

Even Parliament cannot be blamed; the government introduced the changes of July 2012, which include the financial requirement, via Statutory Instrument; so Parliament never got to vote on them.

While parliament did not get to vote on them, that is because not enough MPs chose to object to them. Collectively, MPs have the power to object to them, by means of a motion that an instrument should be annulled.

[stuartsko]

If your company is showing a profit of 16k after your wages then your salary is taken into account.. Only a sole trader or partnership would struggle with a 16k profit... Your actual salary if paid paye is an operating cost of the company so if you are a ltd company and don't take drawing as a sole trader you should be fine.. Speak to your accountant...

Edited September 15, 2015 by stuartsko

[7by7]

The case of Ai Weiwei does not show that decision makers are pressurised into refusing; he was granted his visa but it was limited to three weeks rather than 6 months.

As you well know he applied for a 6 month visa but UKVI only granted a 3 week visa as they said that he had hidden the fact he had a criminal record. That was untrue. It is disingenuous to suggest that UKVI had acted properly when they had engaged in blatant discrimination. I hope that whoever made up that he had a criminal conviction was severely reprimanded. Their job is to deal with facts and evidence and not to make things up or base decisions on their own prejudices.

You presented his case as evidence that UKVI decision makers are under pressure to refuse; I merely pointed out that he was not refused.

The ECO and presumably his or her manager determined he had a criminal conviction that was not declared. They were completely wrong and clearly should have had a quick look at Wikipedia!......

No one here knows on what evidence the ECO and ECM determined that he had a criminal conviction; neither does the Guardian.

Surely you are not suggesting that UKVI decision makers should make their decisions based on the applicant's Wikipedia entry!

[7by7]

<snip>

I can only assume that an Immigration solicitor with many years of experience is talking with some knowledge.

One would hope so; which is why I am surprised that she seems to have given you advice which has caused you so much worry!

She must know,

If your company is showing a profit of 16k after your wages then your salary is taken into account.. Only a sole trader or partnership would struggle with a 16k profit... Your actual salary if paid paye is an operating cost of the company so if you are a ltd company and don't take drawing as a sole trader you should be fine.. Speak to your accountant...

I said similar much earlier in the topic, too.

From what you have said, your income from all acceptable sources is more than enough to meet the requirement; all you need to do is present the specified evidence to show this. Your 'Immigration solicitor with many years of experience' should know this.

Also, you keep mentioning your wife's income. If your income is enough to meet the requirement, then her income is irrelevant. It can be added to yours, but only needs to be if your income alone is insufficient.

If your 'Immigration solicitor with many years of experience' has not told you this, she should have done!

It may be anecdotal but the most posts here that feature problems with visas do seem to be UK visa applications.

Most posts in this particular sub forum, regardless of the actual topic or query, do concern the UK. Probably because most members who use this particular forum are British.

But there are posts from others who are trying to navigate the, often far more onerous, visa regimes of other countries such as Australia and the USA.

[bobrussell]

I was merely saying that it takes a few moments to research the supposed criminal conviction for such an eminent person. Checking Wikipedia was just one of many options available to the ECO before imposing restrictions on the visit visa.

Restricting visa terms for such a high profile individual was likely to create ructions and the least they could have done is some basic research before making such an error. A two second perusal of Wikipedia would have been enough to create doubt and ensure further checks are made.

He was accused, presumably because someone 'knew' he had been charged or convicted. They were wrong, he was neither charged or convicted but his treatment by the Chinese authorities might even allow a successful asylum claim!

Unfortunately Ms May is not there for the average applicant who believes the system has made a mistake.

I rarely rely on any newspaper to provide reliable information, they are for entertainment only most of the time. I do proper research although I admit Wikipedia is often a starting point!!

[Trevor1809]

7by7 you conveniently ignored the point that I was trying to make. It wasn't that the solicitor was concerned about my earning. Just that being forced into the self employed bracket and making a premium application and the time limitation that the tick box checked with simply put the application in the too difficult tray and reject it. That was the point I was making.

The solicitor had experienced problems with Directors before as I had as well at the settlement visa stage.

[7by7]

I'm not sure what point you are trying to make, to be honest.

The only reference I can find by you to a previous premium appointment was your frustration with the booking system.

If I have missed a post where you say that your wife's application via the premium service was rejected because the staff couldn't be bothered to look at the evidence properly, perhaps you will link to it.

If that didn't happen and you or your solicitor for some reason believe the evidence you supply will be ignored, I think you will both be in for a pleasant surprise.

To be frank; the more you post, the more the words 'mountain' and 'molehill' spring to mind.

As for being 'forced into the self employed bracket.'

Have you and your solicitor actually read the guidance? Either you haven't, or you have not told us the full story here.

Whichever, I'm done.

Except to wonder why, if you have so much confidence in your solicitor, you came to this forum to seek confirmation of what she told you!

[Trevor1809]

I'm not sure what point you are trying to make, to be honest.

The only reference I can find by you to a previous premium appointment was your frustration with the booking system.

If I have missed a post where you say that your wife's application via the premium service was rejected because the staff couldn't be bothered to look at the evidence properly, perhaps you will link to it.

If that didn't happen and you or your solicitor for some reason believe the evidence you supply will be ignored, I think you will both be in for a pleasant surprise.

To be frank; the more you post, the more the words 'mountain' and 'molehill' spring to mind.

As for being 'forced into the self employed bracket.'

Have you and your solicitor actually read the guidance? Either you haven't, or you have not told us the full story here.

Whichever, I'm done.

Except to wonder why, if you have so much confidence in your solicitor, you came to this forum to seek confirmation of what she told you!

Firstly at no point did I say that I did not have confidence in the solicitor only the system. I am not sure what point you are making about being self employed. In the eyes of HMRC I am an employee. Only in the eyes of UKVI am I self employed. I am pondering whether to reduce my fears that I resign my Directorship then I can sponsor as an employee with salary that exceeds the minimum plus dividend income plus the wife's earnings.

I am only trying to open the debate of categorising employees as self employed.

I haven't yet made a premium visa application. I tried to make an appointment on 2 occasions finishing up paying 2 NHS surcharge payments but no appointments were available. Now I had incorrectly assumed that the visa expired 30 months after entering the country which was incorrect. There was in fact another 2 months on the visa validity which given the problems I had back in July when I tried to make an appointment is why I decided to go through a solicitor who should know the ropes better than me. It has been suggested that the reason I couldn't make an appointment is that the appointments are only released 28 days before the visa expires. But that is only a suggestion. I have seen nothing on any UKVI web site that says there is a time limit on booking the appointment. I can't see the problem of booking an appointment a year in advance.

It seems rather dumb to have a premium service than can only be booked less than 28 days before the visa expires. Given that having made a booking anybody would have to pay the visa fee, the premium fee and now it would seem the NHS surcharge that the government would want you booking the appointment as far in advance as possible to get the money in their coffers.

Coming back to the Director earnings. Depending on the date of any application accounts could be up to a year old if you are submitting the most recent audited accounts.

For example my wife's ILR application will be in May 2018. Accounts for April 2017 to March 2018 wont be available until long after the ILR application therefore I will be using April 2016 to March 2017 accounts to support an application in May 2018. So at the time of application over a year old.

[bobrussell]

Officially a director of a ltd company is an employee. Many of us running small businesses have found it more tax efficient to take a small salary and the rest of the income as dividends. This reduces crippling income tax (which often does not reflect money available to the self-employed) to a just about manageable level.

Actual profits are broadly similar whichever way a business is run. HMRC are starting to catch on that taxing dividends is one of the few taxes they agreed not to increase after the election!

In reality most small business owners are little more than self-employed, taking the same risks and reaping similar rewards.

The immigration rules are one step ahead of HMRC but the tax man is catching up. It may not be fair but since when have tax or immigration laws been fair? You have just been caught in a 'trap' created by the rules!