Terrible Timing

Hi Everyone - just hoping someone can put my mind at ease..

I am the American spouse of a British citizen who is currently on FLR(M) spouse visa which I received under the new rules (June of 2013). At the moment I have a job in  which I earn £32,200, so well over the minimum financial requirement. However, my husband and I are expecting our first child next month and I will be on maternity leave for six months (earning my full salary for four of these and SMP for 2). I will be back to work in April next year (2015) and back earning my full salary again.

My husband is facing the very likely possibility of redundancy in the next month or so. One option we have discussed is that he take some time away and become the primary care giver for our child so that I can focus on work (my earning potential is much higher than his and he hates his job).

However, my current contract is due to end September 1st of 2015 and my spouse visa expires on December 11 of 2015 - SO annoying! It is fairly likely that I will get another position after this but not guaranteed of course. I also probably won't know whether I will or not until a month or so beforehand. So, there is a real possibility that when I come to apply for my next spouse visa that December, neither my husband nor I will have any income at the point in time!

My question is this: Could I produce my pay slips for the year prior to December 11 to show that I have made over £18,600 in that year (and if I can, does my maternity leave count towards this?). In other words, if neither my husband and I are working at the time of my application, is it sufficient to show that we still will have made the minimum income requirement the year before?

REALLY appreciate any knowledge or advice on this!

Congrats on the baby!   

Okay, a few options, so don't panic.

Category B would be to prove £18,600 in the 12 months prior to your application.  I'm thinking you'll be fine with this option.  Have your husband look into Child Benefit ASAP as he can claim that, and that will count as well.  Also he may qualify for other benefits as well.  As long as YOU aren't claiming them and he isn't claiming MORE because of you, it's fine.

The truly truly worst case scenario, if you cannot meet the requirements, would mean a 10 year path to ILR.  You wouldn't have to leave the UK.  And I think that would be HIGHLY unlikely that you won't meet the requirements.

Thanks so much KFdancer - this is great that Category B would be possible in the worst case scenario. Just to clarify - both maternity pay AND child benefit would count towards the income requirement?

What do you mean the 10 year path to IRL?  I always thought if I didn't meet the financial requirements for the second FLR(M) spousal visa I would be automatically kicked right out of here! Is there another 10 year option I don't know about?

Again, thank you so much. You're always so helpful (both in previous questions I've had and to others!)

Yes, congratulations !

When did you enter the UK on your spousal visa? As a spousal visa valid for 33 months, you don't have to wait until it expires to apply for FLR(M). You can apply for FLR(M) 28 days before you reach 30 months in the UK.

Wait, never mind - I see from your other posts that you didn't apply for a spousal visa (as they are only issued outside the UK), but you applied for FLR(M) from inside the UK... which means it's only valid for 30 months and you can't apply for the next FLR(M) until 28 days before your current visa expires.

So, just ignore all of that - I was thinking you might be able to apply for the FLR(M) before your contract is up in September 2015, but as you don't have a spousal visa, that won't be the case.

As KFDancer said, you do have options - maternity leave does count for the financial requirement, however, child benefit does NOT count (it is in the list of unacceptable income sources).

But you can always try for Category B, earning £18,600 in the previous 12 months before applying... you would also need to show that between you, you will have a current income of £18,600 or more at the time of applying that will continue into the future.

However, if all else fails and you can't meet the financial requirement, you will just be transferred to the 10-year track for ILR, so you wouldn't have to leave the UK or anything, it would just take longer to qualify for ILR (with a new FLR every 2.5 years, but no financial requirement to be met).

As KFDancer said, you do have options - maternity leave does count for the financial requirement, however, child benefit does NOT count (it is in the list of unacceptable income sources).

Thanks for that.  I was mistaken.   

Thanks for clarifying ksand24 and for the congrats

From what you say, it seems that even if I can show £18,600 in the year prior to my application (under Cat B), if neither my husband and I have jobs at the time of my application date, we won't be able to show that we will continue this income in the future (I'm also guessing from reading others' posts that any job contracts I might have that start after my application date would not count?). So, in the case that neither of us are employed at the time of my application we'd still need to have another source of income (i.e. savings)?

If we do fail to meet their requirement, will they just automatically transfer me to a 10 year track to IRL? And in this case I will just continue applying for FLR(M) every 2.5 years without worrying about the financial requirement? This seems too much of a relief to be true! How exactly does this work? I just need to get my head around that I wouldn't be kicked out of the U.K. if my job contracts don't correspond with my current immigration timeline!

MANY thanks again

However, if all else fails and you can't meet the financial requirement, you will just be transferred to the 10-year track for ILR, so you wouldn't have to leave the UK or anything, it would just take longer to qualify for ILR (with a new FLR every 2.5 years, but no financial requirement to be met).

Transferred? I read it as people could apply for the 10 year route and may be granted this. The 10 year route is a much harsher version of the old Discretionary Leave that it replaced. Not helped by the removal of HR appeal rights that the UK just brought in and some of those already inserted into exisitng laws.

That said Nutmeg, you have a Brtish baby and I haven't seen anyone refused for this route if they have a British child.

If we do fail to meet their requirement, will they just automatically transfer me to a 10 year track to IRL?

It seems you have to apply for it. Don't worry, those with a British child aren't getting refused.

Unless anyone has seen something else saying people who fail to meet the financail requirements will just be transferred?

Just had a look on the UKBA website and it seems that the 10-year route to IRL is another application completely (FLR(FP)). It seems you can apply as either the partner or a British person or the parent of a British child (I will be both by the time of my application...but I am assuming I should go with the partner category as it is this what my last visa is based on?)

It all seems very subjective - they ask about your finances but don't seem to have any requirements set out. Does anyone know how they judge this application? I know Sirius, you say it would be unlikely I'd be refused because of having a British child...but is it something that is otherwise difficult to get?

If we do fail to meet their requirement, will they just automatically transfer me to a 10 year track to IRL? And in this case I will just continue applying for FLR(M) every 2.5 years without worrying about the financial requirement?

You wouldn't apply for FLR(M), because you need to meet the financial requirement for that.

You would apply for the FLR(FP) visa, which is on the 10-year track.

Transferred? I read it as people could apply for the 10 year route and may be granted this. The 10 year route is a much harsher version of the old Discretionary Leave that it replaced. Not helped by the removal of HR appeal rights that the UK just brought in and some of those already inserted into exisitng laws.

I thought when they introduced the new rules and the 10-year track that if it was the case that you applied for FLR(M) and didn't meet the financial requirement, they would issue you with FLR(FP) instead.

There was a discussion about this very situation here on the forum a couple of weeks ago.

This is a post I made, quoting the UKVI guidance, regarding failing the financial requirement and being put on the 10-year path
http://talk.uk-yankee.com/index.php?topic=83697.msg1108511#msg1108511

It all seems very subjective - they ask about your finances but don't seem to have any requirements set out. Does anyone know how they judge this application?

They have many requirements, very specifically set out, in a 62-page document which states exactly how you have to meet the financial requirement, and what documents are required:
https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/337420/Annex_FM_1_7_Financial_Requirement.pdf

You had to meet these requirements for your first FLR(M), so it shouldn't be anything you haven't done before.

Thanks a million ksand24 - this is all really helpful.

I think I must be really thick though. I thought that whole point of applying for the 10-year-track (FLR(FP) as opposed to the five-year track (FRL(M) was to avoid the financial requirement (because potentially I may not meet it by the time my next application (i.e. I can show I met the year preceding but may not be able to show future income)...

But the 64 page document you sent outlining the requirements is the same as the FLR(M) five year track...are you saying that the requirements for both are the same (even the financial ones?)?  What's the difference then?

Sorry if I'm missing something really obvious!

First congrats, and second, I'm sorry you're having to go through this process.

My husband is facing the very likely possibility of redundancy in the next month or so.

Out of curiosity -- would he be eligible for redundancy payments from this job?  And if so, could they count towards the financial requirement?  My company went through this about a year ago, and the packages that people were receiving were pretty substantial--but it might have been paid in one lump sum.  I'm not sure if this is something you've thought of or considered at all.

I think I must be really thick though. I thought that whole point of applying for the 10-year-track (FLR(FP) as opposed to the five-year track (FRL(M) was to avoid the financial requirement (because potentially I may not meet it by the time my next application (i.e. I can show I met the year preceding but may not be able to show future income)...

No, the 10-year track is a special case visa that you really don't want to be on if you can help it. Once you are on the 10-year track, I don't believe you can get off it, so you will be stuck on it for 10 years.

It has replaced the discretionary leave visa which is only issued when someone cannot meet the requirements of the visa they are supposed to apply for and is only allowed to stay in the UK based on exceptional circumstances... in your case, it would be under Article 8, the right to live a family life in the UK (i.e. so they don't break up your family) - it's a means for you to stay in the UK DESPITE not qualifying for the proper visa, but because of that you are unable to qualify for ILR for 10 years and you have to show each time that you should still be allowed have it.

But the 64 page document you sent outlining the requirements is the same as the FLR(M) five year track...are you saying that the requirements for both are the same (even the financial ones?)?  What's the difference then?

No, the link I gave you is for the 5-year track only. There is no financial requirement for the 10-year track.

Those are the only financial requirements and you must meet one of those exactly in order to qualify for it. If you do not meet those requirements, you cannot qualify for FLR(M) at all.

But, if you can't qualify for FLR(M) and the government determines that you should be allowed to stay in the UK based on Article 8, they will issue you with FLR(FP), which has no financial requirement because it's an 'exceptional circumstances' visa.

Thanks so much ksand24, this is making more sense now..

Let's see if I have this straight: In December 2015, when my current visa expires, I would apply for FLR(M) NOT FLR(FP). I would prove my income using Cat B. If, worst case scenario, neither my husband or I have any income to show on the application date that proves our income going forward and UKBA are not happy with this, then I should qualify for the 10-year track (FLR(FP) under Article 8. This is something that they would hopefully transfer me to if my FLR(M) application fails. Do I have this correct?

Thanks for the suggestion PickledSakura. Unfortunately, my husband hasn't been in his current job long enough to qualify for redundancy pay. I'm not worried about meeting the financial requirement in the year prior to my application...my worry is that there is a possibility that neither one of us would be employed on our application date so we would not have proof of future income..Hopefully that won't happen but need to be prepared just in case

There is also this which uses the words "must" "and".

Family life as a partner (10-year route)

You must meet the eligibility requirements for the partner routes and you must also be in one of these situations:

 there are serious reasons you and your partner can’t live together as a couple in another country

  you have a child in the UK who is a British citizen or has lived in the UK for 7 years and it wouldn’t be in their best interests to leave the UK with you

https://www.gov.uk/remain-in-uk-family/eligibility

Which is why I said that the ones with a British child all seem to be allowed the 10 year family route, yet others are getting refused

Those that appeal their refusal using Article 8 Rights to a Family Life, then meet the Immigration Act 2014 in my post I just posted above. EDIT That post of mine seems to have disappeared.