Author Topic: Spouse Visa - when to apply, rules interpretation  (Read 1670 times)

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Offline northUKbound

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Spouse Visa - when to apply, rules interpretation
« on: January 22, 2013, 05:27:16 PM »
Hello all

My civil partner and I are trying to figure out when we should apply for my spouse visa so that I can return to the UK.

My partner is self-employed, in a partnership business. This business was registered with HMRC in May 2012.

The new rules requirements state that you must submit the SA300 or SA302 tax form with the application, which is available to us this coming April. With this information, 12 months of bank statements must also be submitted, and they must correspond with the same tax year that you're submitting the SA300 or SA302. So if I'm understanding this correctly, for us that would mean bank statements from March 2012 - April 2013.

My question is this: should we apply in April as soon as we get the tax info, or, should we wait to apply until the end of May/early June, since the business wasn't registered until May 2012? I thought waiting might be better just so we could provide bank statements that correspond with the tax year and for as long as the business has been operating officially. So in other words, submit bank statements from March 2012 - May 2013.

I know it says nothing in the rules about this, but like a lot of other people applying under new rules, I'm a bit paranoid about getting denied.

Any advice is appreciated.
May 17 2013 - Spouse visa sent to NYC
May 22 2013 - Package accepted at NYC
May 30 2013 - Received email from Sheffield that package was received and being processed
June 6 2013 - Received "A decision has been made..." email with UPS tracking details
June 10 2013 - Visa Issued and received via UPS!
Aug 28 2013 - Returning to the UK! Yay!

Offline Steve_G

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Re: Spouse Visa - when to apply, rules interpretation
« Reply #1 on: January 22, 2013, 10:23:58 PM »
Hello,

I've been thinking about this with my initial instinct being to suggest applying in April. However, the requirements insist on the evidence being from the last full financial year. It's the word "full" that causes me to doubt that you could apply in April.

You're perfectly right to query it as the rules and guidance aren't specific about this type of issue.

If you don't mind me asking, what was the situation with the business from March 2012 to May 2012 and was there any reason for the delay in registering with HMRC?
Steve :o
 
I am an immigration lawyer based in the UK. My participation at UK Yankee is not part of my job; I usually post here in my free time, though I can assist on a professional basis via my firm for visa/immigration applications and appeals if you think you need it - please feel free to PM me :)

Offline northUKbound

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Re: Spouse Visa - when to apply, rules interpretation
« Reply #2 on: January 22, 2013, 10:43:04 PM »
Hi! Thanks for responding.

My partner took the business over from the person it initially belonged to in late April. And at that point it was not registered. My partner and her current business partner made it legitimate once they took it over.
May 17 2013 - Spouse visa sent to NYC
May 22 2013 - Package accepted at NYC
May 30 2013 - Received email from Sheffield that package was received and being processed
June 6 2013 - Received "A decision has been made..." email with UPS tracking details
June 10 2013 - Visa Issued and received via UPS!
Aug 28 2013 - Returning to the UK! Yay!

Offline Steve_G

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Re: Spouse Visa - when to apply, rules interpretation
« Reply #3 on: January 22, 2013, 11:02:40 PM »
Throwing another suggestion in here.......

If your partner is an equity partner in the business then his income drawn from the partnership can be regarded as salaried income and therefore you may only need to show evidence of income for the last six months.

In fact, the guidance actually says "equity partners will be treated as in salaried employment for the purposes of the financial requirement"
Steve :o
 
I am an immigration lawyer based in the UK. My participation at UK Yankee is not part of my job; I usually post here in my free time, though I can assist on a professional basis via my firm for visa/immigration applications and appeals if you think you need it - please feel free to PM me :)

Offline northUKbound

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Re: Spouse Visa - when to apply, rules interpretation
« Reply #4 on: January 23, 2013, 12:10:13 AM »
Well, I know that they both have their own tax ID number, and they own the business 50/50. Their salaries are both drawn from the profits. Would this be an equity partnership? Would it be specified on the HMRC registration?
May 17 2013 - Spouse visa sent to NYC
May 22 2013 - Package accepted at NYC
May 30 2013 - Received email from Sheffield that package was received and being processed
June 6 2013 - Received "A decision has been made..." email with UPS tracking details
June 10 2013 - Visa Issued and received via UPS!
Aug 28 2013 - Returning to the UK! Yay!

Offline Steve_G

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Re: Spouse Visa - when to apply, rules interpretation
« Reply #5 on: January 23, 2013, 09:01:31 AM »
That sounds like an equity partnership to me - most partnerships are. The guidance is very clear about it. Does your partner receive payslips?
Steve :o
 
I am an immigration lawyer based in the UK. My participation at UK Yankee is not part of my job; I usually post here in my free time, though I can assist on a professional basis via my firm for visa/immigration applications and appeals if you think you need it - please feel free to PM me :)

Offline northUKbound

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Re: Spouse Visa - when to apply, rules interpretation
« Reply #6 on: January 23, 2013, 12:48:50 PM »
No - that was my next question. They just pay themselves a salary. How could my partner provide the required evidence? The letter that is referenced in the rules would Have to be written by her and her business partner. There are no P60's. No wage slips.

What my partner does have is bank statements, and an accountant was already lined up to produce a statement of accounts for them. They have proof of registration with HMRC and VAT and national insurance contributions.

Legal help perhaps?
May 17 2013 - Spouse visa sent to NYC
May 22 2013 - Package accepted at NYC
May 30 2013 - Received email from Sheffield that package was received and being processed
June 6 2013 - Received "A decision has been made..." email with UPS tracking details
June 10 2013 - Visa Issued and received via UPS!
Aug 28 2013 - Returning to the UK! Yay!

Offline Steve_G

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Re: Spouse Visa - when to apply, rules interpretation
« Reply #7 on: January 24, 2013, 12:54:36 AM »
I didn't think there would be any payslips (was hoping there would be as it would be very straightforward then!). Apologies for the length of this post...

The rules say as follows:
Quote
If a person is an equity partner, for example in a law firm, the income they draw from the partnership will be treated as salaried employment for the purposes of this Appendix and Appendix FM.

And yet the self-employment section of the rules which also refers to partnerships states that self-employed evidence should be supplied.

In the guidance it specifies this:
Quote
A sole trader is a business that is owned and controlled by one person, although they may employ additional staff. A partnership is where the business is owned by two or more people (although equity partners will be treated as in salaried employment for the purposes of the financial requirement - see section 5 of this guidance). And a franchise allows a person the right to use an existing business idea.

If you're happy to wait until you have the self-employment evidence and submit that, it will then satisfy the ECO under either route.

The Rules specify certain evidence and, despite the reference to equity partners, the ECO could still say that if the evidence isn't there then the application would be refused. They seem contradictory and this could well have been an oversight when the rules were made.

As for legal assistance, whenever there are changes to the rules such as this it is often a case of lawyers seeing how ECOs deal with applications. I personally haven't encountered this specific issue yet and I don't know of any colleagues who have either. I know that there is no case law on it yet. An argument could be made either way but as I said it may be better (in terms of making sure your application stands the best chance of success and cost) to wait until your partner has the self-employment evidence if you're able to wait for that.

I'm going to be looking into this issue though as it may come up again and I'll post another reply if I manage to find anything.
Steve :o
 
I am an immigration lawyer based in the UK. My participation at UK Yankee is not part of my job; I usually post here in my free time, though I can assist on a professional basis via my firm for visa/immigration applications and appeals if you think you need it - please feel free to PM me :)

Offline northUKbound

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Re: Spouse Visa - when to apply, rules interpretation
« Reply #8 on: January 24, 2013, 02:52:37 AM »
Thanks for the response.

Basically, I feel like we're kind of in a weird place - 2 months worth of bank statements that would not correspond with the tax info if we apply in April, and risk getting denied. Or, wait for April 2014 - over a year away.

The irony is that my partner has made well over the threshold as of December.

I thought about my partner becoming an employee of the company for 6 months so that I could apply under the salaried employment category. Do you know anything about how they might do this? Is it just a matter of hiring a payroll company and paying the appropriate tax?

Thank you again for your responses :)
May 17 2013 - Spouse visa sent to NYC
May 22 2013 - Package accepted at NYC
May 30 2013 - Received email from Sheffield that package was received and being processed
June 6 2013 - Received "A decision has been made..." email with UPS tracking details
June 10 2013 - Visa Issued and received via UPS!
Aug 28 2013 - Returning to the UK! Yay!

Offline Steve_G

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Re: Spouse Visa - when to apply, rules interpretation
« Reply #9 on: January 24, 2013, 09:25:30 AM »
You need to be very careful in the situation of becoming an employee of the company both from the law on ownership of business and the additional tax that may be payable. Also, if you did this, there would be no employment income from the previous 12 months to rely on category B.

I'm looking some more into the equity partner issue - there has either been an oversight or I'm missing something blindingly obvious. I've also made a Freedom of Information request with the UKBA to get this info, which they are legally obliged to provide within 20 days.
Steve :o
 
I am an immigration lawyer based in the UK. My participation at UK Yankee is not part of my job; I usually post here in my free time, though I can assist on a professional basis via my firm for visa/immigration applications and appeals if you think you need it - please feel free to PM me :)

Offline northUKbound

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Re: Spouse Visa - when to apply, rules interpretation
« Reply #10 on: January 24, 2013, 02:56:23 PM »
I really appreciate you making that request.

It seems as though if they are stringent with defining equity partnerships specifically and my partners' business was not considered as such, I probably would not have a good chance of approval until next April. This seems very unfair in terms of the rules. Much about the rules is unfair, and I'm not so naive as to ignore how unfair the change in rules has affected so many, but it would seem that even though we meet financial requirements, have a legitimate relationship, etc, I would be kept from my partner.

Our relationship could also not continue within the USA either. Same sex civil partnerships exist here, but are not recognized at the federal level, which is what is needed for any immigration.

I know that this is grounds for an appeal, along with Article 8 in the UK.

I've been trying to avoid this possibility, but it seems it might actually be faster at this point, sadly enough.

The only other option to avoid such a lengthy separation would be for me to go over as a visitor again if we decided to comply and wait until April 2014. I just left in December after having been there for 6 months. Should I apply for a visitor visa before going back?
May 17 2013 - Spouse visa sent to NYC
May 22 2013 - Package accepted at NYC
May 30 2013 - Received email from Sheffield that package was received and being processed
June 6 2013 - Received "A decision has been made..." email with UPS tracking details
June 10 2013 - Visa Issued and received via UPS!
Aug 28 2013 - Returning to the UK! Yay!

Offline Steve_G

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Re: Spouse Visa - when to apply, rules interpretation
« Reply #11 on: January 26, 2013, 07:19:49 PM »
Apologies for the delay in responding - technical problems with the app on my phone!

Just to let you know, I had an acknowledgement from the UKBA of the FOI request - I'll keep you posted.

The separation must be really difficult. As you say, there is the option of a visit. How long were you here last time and have you entered on a visit before?

I don't think you'll need to wait until April 2014. I'll look into the self-employment side of things a little more and of course the UKBA should get back to me within 20 days of making the FOI request.

Your partner's business is definitely an equity partnership but it all depends on the UKBA's stance on documents to prove it. The Rules as I read them don't provide for not having payslips but surely they must. This is what the FOI disclosure should reveal.

I'd suggest holding fire on the visit until we can firm up the evidence to prove income.

Steve :o
 
I am an immigration lawyer based in the UK. My participation at UK Yankee is not part of my job; I usually post here in my free time, though I can assist on a professional basis via my firm for visa/immigration applications and appeals if you think you need it - please feel free to PM me :)

Offline northUKbound

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Re: Spouse Visa - when to apply, rules interpretation
« Reply #12 on: January 27, 2013, 06:32:50 AM »
I responded via PM about some stuff, but as for visiting, I went over in June 2012 and stayed until December 2012. Initially going over I planned to stay just for 10 days, but it turned out to last the entire 6 months of my visa. :)

I'm curious about this - how difficult is it to get another visitor visa after such a lengthy stay? I've heard that hypothetically, if I wanted to go back as a visitor this year, I should wait until June or later. I've also heard mixed things about applying prior to going over; on the one hand it's good to make sure you're good to go before travelling, on the other hand it's a red flag - even though I've never been denied a visa or overstayed.

May 17 2013 - Spouse visa sent to NYC
May 22 2013 - Package accepted at NYC
May 30 2013 - Received email from Sheffield that package was received and being processed
June 6 2013 - Received "A decision has been made..." email with UPS tracking details
June 10 2013 - Visa Issued and received via UPS!
Aug 28 2013 - Returning to the UK! Yay!

Offline Delfin

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Re: Spouse Visa - when to apply, rules interpretation
« Reply #13 on: May 18, 2017, 08:53:07 PM »
I know there hasn't been posting for a long time here, but my query is very similar. My fiance wants to come to the UK and we are putting documents together.

Key issue is with respect to proof of income. I am in a limited liability partnership. Would a letter from a certified accountants showing how much money I have drawn from the business over the last 12 months be sufficient? This would save me a huge amount of time and effort, versus submitting tax return, accounts, SA302 etc.

Would hugely appreciate advice  - northUKbound and Steve_G - please help!

Thank you

Offline larrabee

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Re: Spouse Visa - when to apply, rules interpretation
« Reply #14 on: May 18, 2017, 09:09:59 PM »
I know there hasn't been posting for a long time here, but my query is very similar. My fiance wants to come to the UK and we are putting documents together.

Key issue is with respect to proof of income. I am in a limited liability partnership. Would a letter from a certified accountants showing how much money I have drawn from the business over the last 12 months be sufficient? This would save me a huge amount of time and effort, versus submitting tax return, accounts, SA302 etc.

Would hugely appreciate advice  - northUKbound and Steve_G - please help!

Thank you

Hi Delfin,

No, unfortunately you are going to have to jump through all the hoops and provide every piece of information that is asked for or your application will be refused.

 
Quote
7. In respect of self-employment in the UK as a partner, as a sole trader or in a franchise all of the following must be provided:

    (a) Evidence of the amount of tax payable, paid and unpaid for the last full financial year.
    (b) The following documents for the last full financial year, or for the last two such years (where those documents show the necessary level of gross profit as an average of those two years):
        (i) annual self-assessment tax return to HMRC (a copy or print-out); and
        (ii) Statement of Account (SA300 or SA302).
    (c) Proof of registration with HMRC as self-employed if available.
    (d) Each partner’s Unique Tax Reference Number (UTR) and/or the UTR of the partnership or business.
    (e) Where the person holds or held a separate business bank account(s), bank statements for the same 12-month period as the tax return(s).
    (f) personal bank statements for the same 12-month period as the tax return(s) showing that the income from self-employment has been paid into an account in the name of the person or in the name of the person and their partner jointly.
    (g) Evidence of ongoing self-employment through the provision of at least one of the following: a bank statement dated no more than three months earlier than the date of application showing transactions relating to ongoing trading, or evidence dated no more than three months earlier than the date of application of the renewal of a licence to trade or of ongoing payment of business rates, business-related insurance premiums, employer National Insurance contributions or franchise payments to the parent company.
    (h) One of the following documents must also be submitted:
        (i) (aa) If the business is required to produce annual audited accounts, such accounts for the last full financial year; or
        (bb) If the business is not required to produce annual audited accounts, unaudited accounts for the last full financial year and an accountant’s certificate of confirmation, from an accountant who is a member of a UK Recognised Supervisory Body (as defined in the Companies Act 2006) or who is a member of the Institute of Financial Accountants;
        (ii) A certificate of VAT registration and the VAT return for the last full financial year (a copy or print-out) confirming the VAT registration number, if turnover is in excess of £79,000 or was in excess of the threshold which applied during the last full financial year;
        (iii) Evidence to show appropriate planning permission or local planning authority consent is held to operate the type/class of business at the trading address (where this is a local authority requirement); or
        (iv) A franchise agreement signed by both parties.
    (i) The document referred to in paragraph 7(h)(iv) must be provided if the organisation is a franchise.
 

https://www.gov.uk/guidance/immigration-rules/immigration-rules-appendix-fm-se-family-members-specified-evidence

https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/525708/Appendix_FM_1_7_Financial_Requirement.pdf

You'll also need to provide accommodation and relationship evidence and evidence of plans to marry.
March 29th 2013-Moved to UK, husband on spouse visa.Oct 20th 2015-Applied by mail for FLR(M).Feb 1st 2016 FLR(M).