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UK_Lawyer
UK_Lawyer, Solicitor
Category: UK Immigration Law
Satisfied Customers: 2048
Experience:  I am a qualified solicitor and an expert in UK law.
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I recently married my UK husband. Last month, he received an

Customer Question

I recently married my UK husband. Last month, he received an honorarium/payrise which would finally have him earning over 18,600 per year. The employer will backdate his pay for 1 year and pay him one lump sum check to make up for the difference in his old salary and new salary. The appropriate taxes will be deducted from this check. Would he still be eligible to sponsor me as his spouse? Or do we have to we wait 6 months? There is a chance his salary will decrease again (below 18,600) in September, so applying now may be our only chance in a long time.
Submitted: 1 year ago.
Category: UK Immigration Law
Expert:  UK_Lawyer replied 1 year ago.
Hi thank you for your question. Please remember to RATE my answer OK SERVICE, GOOD SERVICE OR EXCELLENT SERVICE so I can get credited for my time.

Will his payslips be changed for the previous 6 months?
Will his bank statements show his bank being credited by the required amount for 6 months?

Kind regards
Customer: replied 1 year ago.

For UK Lawyer:


 


His payslips will not be changed. We are able to get 1 bank statement showing that the lump sum check was deposited into his account. We have documentation from Human Resources stating the reason for this lump sum check and various contracts and documentation signed by employer and husband regarding the backdated pay.


 


As his income for the prior months were based on his lower salary, his past wage slips and bank statements will not reflect the new salary. We are only able to obtain the above documentation. Thank you in advance for your help.

Expert:  UK_Lawyer replied 1 year ago.
Thank you for your reply.

It is a peculiar situation to be in, due to the pay being back dated, but if you believe this would be the best chance of obtaining a visa or being granted a spouse visa then you should submit the application and state that your payment is being back dated and that your husband's pay for the previous 6 months is at least 18600 pounds gross then you must submit the payslips and bank statements for the last 6 months and then enclose a covering letter from the employer stating that this pay for the previous 6 months was at least 18600 and the lump sum of x amount has been given as back dated payment.

The home office guidance states as follows :

In respect of salaried employment in the UK (except where paragraph 9 applies), all of the following evidence must be provided:

(a) Wage slips covering:

(i) a period of 6 months prior to the date of application if the person has been employed by their current employer for at least 6 months (and where paragraph 13(b) of this Appendix does not apply); or
(ii) any period of salaried employment in the period of 12 months prior to the date of application if the person has been employed by their current employer for less than 6 months (or at least 6 months but the person does not rely on paragraph 13(a) of this Appendix), or in the financial year(s) relied upon by a self-employed person.

(b) A letter from the employer(s) who issued the wage slips at paragraph 2(a) confirming:

(i) the person's employment and gross annual salary;
(ii) the length of their employment;
(iii) the period over which they have been or were paid the level of salary relied upon in the application; and
(iv) the type of employment (permanent, fixed-term contract or agency).

(c) Personal bank statements corresponding to the same period(s) as the wage slips at paragraph 2(a), showing that the salary has been paid into an account in the name of the person or in the name of the person and their partner jointly.

If your husband has been paid the required amount for the last 6 months and his contract or wage slips and letter from the employer confirm this then your application does have a good chance of success. What is important here is that your husband must provide evidence that in the previous 6 months he has earned the required salary. Provided evidence of this is submitted your application has a good chance of success.

I hope this answers your question if so kindly rate my answer positively so I can get credited for my time. If however you feel that the answer does not cover all the points raised in your question please DO NOT rate my answer negatively I will be happy to answer further questions until you are satisfied with my answer.

Kind regards
Customer: replied 1 year ago.

Thank you for your prompt reply. I am still a little unclear as to whether my situation makes us eligible to apply for the Spouse visa. I would just like to clarify a couple statements: "If your husband has been paid the required amount for the last 6 months[...]" and "What is important here is that your husband must provide evidence that in the previous 6 months he has earned the required salary".


 


In your experience, does it greatly matter that the required salary was backdated and paid in 1 check- as opposed to 6 monthly checks? As mentioned earlier, his past wage slips do not reflect the required amount. Thanks again for your time.

Expert:  UK_Lawyer replied 1 year ago.
Thank you for your reply.

The guidance states that payment of the 18600 salary must be paid throughout the 6 months period prior to submitting the application. In your husband's case he was not paid the amount throughout the required period.

The issue with back dated payment is that the payment will not be reflected in the payslips and therefore the home office may have an issue in respect of the payslips meeting the required salary amount. The emphasis is on payslips and the fact that payment must be maid throughout this period.

If back dated payment is made it should be reflect in the payslips, the fact that the payment was not paid throughout the 6 months but in one lump sum the home office may disregard the money paid. This is where the risk lies. The application may hinge on the employer letter clarifying why the payment was not made over the 6 months period and why it is not reflected in the payslips because this is what they will base the income on. Please see following link :

http://www.google.co.uk/url?sa=t&rct=j&q=spouse visa idi&source=web&cd=3&ved=0CFMQFjAC&url=http://www.ukba.homeoffice.gov.uk/sitecontent/documents/policyandlaw/IDIs/chp8-annex/section-FM-1.7.pdf?view=Binary&ei=RvmsUYriG8nwPM3kgbAL&usg=AFQjCNFgVtfblUmai40pFSuutYq2PuRMIg

The issue with the payslips is where the problem lies because the rules are silent on back payment there is as element of risk with the application. If this is your only chance to meet the financial requirements then it will be for you to decide whether you are willing to take the risk because strictly speaking you will not be able to provide the documentation ie payslips showing the correct amount as evidence with the application.

I hope this answers your question if so kindly rate my answer positively so I can get credited for my time.

Kind regards
UK_Lawyer, Solicitor
Satisfied Customers: 2048
Experience: I am a qualified solicitor and an expert in UK law.
UK_Lawyer and other UK Immigration Law Specialists are ready to help you
Customer: replied 1 year ago.
Uk Lawyer,
I am unsure if this was overlooked by you, but Category B of the Financial Requirement Section seems to apply to my situation (and indicates that my husband is eligible to sponsor me). Your analysis/reply was only based on Category A. Is there a reason for this? Would you agree that Category B is the appropriate section to apply under?
Expert:  UK_Lawyer replied 1 year ago.
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Customer: replied 1 year ago.

This is taken directly from the UKBA Financial Requirement section:


"5.3. Category B: Less than 6 months with current employer or variable income – person residing in the UK


5.3.1. This category can be used where the applicant‟s partner (and/or the applicant if they are in the UK with permission to work) is in salaried or non-salaried employment at the date of application, but has


 


not been with the same employer and/or not earning the income level relied upon in the application for at least 6 months prior to the date of application. It can therefore be used by those who have been with their current employer for less than 6 months, or who have been with their current employer for at least 6 months but earning a variable income and wish to be considered in this category rather than under Category A".


 


The plain language seems to indicate that an individual CAN apply under Category B of they have been with their employer for MORE then 6 months BUT has earned a VARIABLE INCOME. All that is required to apply under this section is: 1.) show he is currently earned salary above 18,600, and 2.) that the TOTAL amount of income received by the sponsor in the past 12 months has been 18,600 or more.

Expert:  UK_Lawyer replied 1 year ago.
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