Q. I am on a spouse visa and due for settlement. My British husband is the sole director of his own limited company. He pays himself wages and dividends. How much money will I need to show to qualify for settlement?
A. The writer does not specify whether she is on the old two-year spouse visa issued before July 9, 2012, or the new five-year one. Assuming that she is on the old-style 2-year spouse visa (which is more likely as the first batch of new style visa holders only become eligible for settlement in 2017), the answer is contained at paragraph 133 of the Statement of Intent dated June 2012 (page 35 of the document) in which the Secretary of State for the Home Department (SSHD) confirmed that:
133. The following additional transitional arrangements will apply:
# Those who, before 9 July 2012, have applied for initial or further leave under the rules in force prior to that date will, if they qualify for it, be granted leave under those rules and will continue to be dealt with under those rules through to indefinite leave to remain if they qualify for it (including those who have applied for leave as a fiancé(e) or proposed civil partner), subject to the requirement from October 2013 to pass the Life in the UK test and present an English language speaking and listening qualification at B1 level or above to qualify for settlement. The new criminality thresholds will also apply to such cases.
The old rules relating to maintenance will therefore apply in this case. The couple will only be required to demonstrate that their income is adequate. This means that it should exceed the income support levels for a couple, after deducting rental or mortgage expenses. Support from third parties (such as parents) is allowed if the parties themselves do not earn enough between themselves.
Assuming however, that the writer is on the new style spouse, the rules are more complex. The husband must demonstrate that he earns a minimum income of £18,600 gross per annum; £22,400 if there is one child and an additional £2,400 for each further child.
Support from third parties is not allowed.
Only specified evidence to prove income can be relied on. The income must be that of the husband, not combined.
In this case, the husband is a director of his own company. He will therefore be treated as self-employed, even though he runs a limited company.
The specified evidence for directors of Limited Companies is listed in Appendix FM-SE of the Immigration Rules, which says all of the following must be provided:
(i) wage slips covering the same period as the Company Tax Return CT600; and
(ii) evidence of payment of PAYE and Class 1 National Insurance contributions where applicable covering the same period as the Company Tax Return CT600, where this evidence is available at the date of application.
(b) Evidence of registration with the Registrar of Companies at Companies House.
(c) Company Tax Return – CT600 (a copy or print-out) and evidence this has been filed with HMRC, such as an electronic acknowledgment from HMRC.
(d) (i) If the applicant’s business is a registered company that is required to produce annual audited accounts, the latest such accounts; or
(ii) If the applicant’s business is not required to produce annual audited accounts, the latest unaudited accounts 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);
(e) Corporate/business bank statements covering the same 12-month period as the tax return(s).
(f) Personal bank statements covering 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:
(i) evidence of payment of Class 2 National Insurance contributions (for self-employed persons); or,
(ii) current Appointment Reports from Companies House (for Directors),
(h) One of the following documents must also be provided:
(i) A certificate of VAT registration and the latest VAT return (a copy or a print-out)
confirming the VAT registration number, if turnover is in excess of £73,000.
(ii) Proof of ownership or lease of business premises.
(iii) Original proof of registration with HMRC as an employer for the purposes of PAYE and National Insurance, proof of PAYE reference number and Accounts Office reference number. This evidence may be in the form of a certified copy of the documentation issued by HMRC.
(iv) Proof of registration with the London Stock Exchange or with an international stock exchange approved by the Financial Services Authority in the UK.
(i) The document referred to in paragraph 9(h)(iv) must be provided for a company registered on the London Stock Exchange or an FSA-approved international stock exchange.
Just a final observation on evidence. Since August 2009, the Home Office have operated an Evidential Flexibility Policy with respect to Points Based System applications where they should contact applicants and ask for mandatory evidence if it is missing in their original applications and give them an opportunity to provide this. The Home Office have a public law duty to give effect to this policy in all cases to which it applies.
Taffi Nyawanza is the principal of Genesis Law Associates, a specialist immigration and asylum law firm in Birmingham. He can be contacted on firstname.lastname@example.org or ph. 0121 212 0451 or visit Genesis Law Associates’ website at www.genesislaw.co.uk
Disclaimer: This article only provides general information and guidance on immigration law. It is not intended to replace the advice or services of a solicitor. The specific facts that apply to your matter may make the outcome different than would be anticipated by you. The writer will not accept any liability for any claims or inconvenience as a result of the use of this information