SMP apply after spouse visa runs out?

Hi!

Our spouse visa expires Jan 2019. In the event we had a baby say sept 2018, would SMP still apply 39 weeks in theory should we move back to the US after I gave birth? I would have been with the company long enough to be entitled to 39 weeks even with resignation but does anything additional apply due to no longer being able to work in the UK after Jan 2019 in theory? Or would I be entitled due to having worked in general?

And would you be applying for ILR once it runs out or are you letting it expire?

And would you be applying for ILR once it runs out or are you letting it expire?

We are weighing the options whether we would go back to the states upon expiry or if we want to renew.
If I renewed I would assume SMP would qualify. As I would have worked in the U.K. For 2 1/2 years (for the same company), just wasn't sure if SMP would apply on that basis, should we allow the visa to expire

I would give ACAS a call, they'll know for certain.

I believe you will still get SMP.  You may be required to pay back any OMP your company may offer if you do not return to work.

It is my understanding that SMP is payable no matter where you are, provided you meet the eligibility criteria to receive it from your employer in the first instance.

My concern would be if your ILR expires, you are technically no longer legally employable in the UK and therefore should you really be on the payroll system of a company in the UK while they pay out the rest of your SMP?  I would have thought they would be forced to terminate your employment at that point.  It may be that they pay the outstanding SMP at that time - I suspect you would have accrued annual leave they might also need to pay at the same time.  I suppose you could always ask your employer if they would be willing to pay the SMP as a lump sum - this is an option, although they may have other local policies in place.

Definitely a good idea to watch out for the OMP, if your employer offers it, as KF said.  Most companies will require that to be repaid if you do not return to work with them for a certain period of time afterwards.  You can always choose to not receive it if you think that will likely be the case.

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My concern would be if your ILR expires, you are technically no longer legally employable in the UK and therefore should you really be on the payroll system of a company in the UK while they pay out the rest of your SMP? 

I was wondering that too. How would the company pay your NICs if you are not allowed to work in the UK as your spouse visa expired? And if you are in the US?


Statutory Maternity Pay (SMP)

If you work for a UK employer in the European Economic Area (EEA) or Switzerland, you can get SMP as long as you’re eligible.

If you work in a different country, you can still get SMP as long as your employer pays UK National Insurance contributions for you.

Talk to your employer about claiming SMP.

Maternity Allowance

If you can’t get SMP, you might be eligible for Maternity Allowance.

If you’re eligible, you can get Maternity Allowance in an EEA country or Switzerland.

You may also be able to claim it in:

    Barbados
    Bosnia and Herzegovina
    Israel
    Channel Islands
    Kosovo
    Montenegro
    Serbia
    Turkey
    Macedonia



https://www.gov.uk/claim-benefits-abroad/maternity-and-childcare-benefits

I was wondering that too. How would the company pay your NICs if you are not allowed to work in the UK as your spouse visa expired? And if you are in the US?


Statutory Maternity Pay (SMP)

If you work for a UK employer in the European Economic Area (EEA) or Switzerland, you can get SMP as long as you’re eligible.

If you work in a different country, you can still get SMP as long as your employer pays UK National Insurance contributions for you.

Talk to your employer about claiming SMP.

Maternity Allowance

If you can’t get SMP, you might be eligible for Maternity Allowance.

If you’re eligible, you can get Maternity Allowance in an EEA country or Switzerland.

You may also be able to claim it in:

    Barbados
    Bosnia and Herzegovina
    Israel
    Channel Islands
    Kosovo
    Montenegro
    Serbia
    Turkey
    Macedonia



https://www.gov.uk/claim-benefits-abroad/maternity-and-childcare-benefits

I'm pretty sure SMP could be received regardless of location as it is paid by the employer.

Maternity Allowance is slightly different - a benefit paid directly by the government for those who do not qualify for SMP for one reason or another.  This benefit, like you mentioned, would not be payable in the US though the UK and US have some social security agreements which may be similar.  As far as I know, Maternity Allowance would only be payable inside the EU or in certain a countries which have reciprocal agreements with the UK.

From gov.uk technical guidance regarding SMP:

"If you go abroad

Your employer can pay SMP to you anywhere in the world. If you work outside the European Economic Area (EEA), you may get SMP if your employer is liable to pay the employer’s share of Class 1 NI contributions throughout the 26 week employment period."

ETA link: https://www.gov.uk/government/publications/maternity-benefits-technical-guidance/maternity-benefits-technical-guidance

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