UK Spouse Visa - Maternity Leave Question

Hi everyone ,

I'm new here so hopefully I've posted this is the right place!

I wondered if anyone else has been in a similar situation.

I am currently on unpaid Maternity Leave from my full-time, permanent, salaried employment. I earn over £18,600.

I started work in March 2018 and I went on Maternity Leave after receiving 5 payslips.

I'm wondering if I can apply after returning to work and getting one more payslip (therefore having 6 payslips separated by a period of 12 months unpaid maternity leave) or whether I have to get another 6 months after the end of my Maternity leave?

Please find below the message I sent to UKVI, who were unable to provide clarification.

Thanks in advance

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I am asking for clarification of Section 5.5.21 of the Immigration Directorate Instruction Family Migration Appendix FM, Section 1.7 Financial Requirement that I have studied extensively.

“5.5.21. Any period of unpaid maternity, paternity, adoption, parental or sick leave in the 12 months prior to the date of application will not be counted towards any period relating to employment, or any period relating to income from employment, for which Appendix FMSE provides. For example, if a person takes 2 weeks’ unpaid parental leave, this period will be discounted and will not be considered to have broken any continuous period relating to their employment or to their income from employment, and the person can show that they meet the annualised average income required over a period of 6 months and 2 weeks prior to the date of application.”



I refer also to the case studies in section 5.5.23. One of which refers to an applicant’s partner in salaried employment using 6 monthly payslips before maternity leave:

”5.5.23. Case studies – Maternity, paternity, adoption, parental and sick leave

Example (a) The applicant’s partner is in the UK, has recently had a baby and returned to work from maternity leave 2 months prior to the date of application. Her contracted salary is £19,400 a year. She has been with her current employer for 2 years but, as she has not been earning the required level of income for all of the last 6 months because of her maternity leave, the period to be assessed can be the 6 months before she began her maternity leave.”



As you can see, the applicant’s partner in this case is allowed to use the 6 months prior to her leave, rather than 4 months before and 2 months after.

However, in example (b) below, where the applicant’s partner is in non-salaried employment, the unpaid leave is in effect discounted from a continuous period, so proof of income is accepted that straddles this period of unpaid leave.

“Example (b) The applicant’s partner is relying on Category A non-salaried employment but had 2 weeks’ unpaid sick leave 2 months prior to the date of application. This 2 week period will be discounted for the purposes of the application and it will not break the 6 month period of continuous employment required. So the applicant’s partner can show that they meet the annualised average income required over a period of 6 months and 2 weeks prior to the date of application.”

My question is: “Can 6 months payslips from salaried employment straddle a period of 12 months unpaid maternity leave?”

In other words, to meet the proof of income requirement, can payslips be submitted from 5 months before leave and 1 month following return to same post after maternity leave? Employment in this case would be continuous for all other purposes regarding employment legislation.

Hi,

I am in a very similar situation.

Did you get an answer on this from elsewhere?

Thanks, Laura.

I had the same problem and it turns out if you are the British spouse and your partner is outside UK or if you are applying within the UK and the non-uk partner does not meet the financial requirement, it is better to wait for the 6 months payslips after you going back to work. What counts is the 6 last paychecks or in some cases the 12 months period.

You will need to produce six payslips once you return to work, so you will have to wait a bit longer to prove your income.

luannacool wrote: ↑

Wed Feb 27, 2019 5:13 pm

I had the same problem and it turns out if you are the British spouse and your partner is outside UK or if you are applying within the UK and the non-uk partner does not meet the financial requirement, it is better to wait for the 6 months payslips after you going back to work. What counts is the 6 last paychecks or in some cases the 12 months period.

Non-UK partner does not need to meet requirements anyways if UK partner fulfils the requirement, isn't?

No, if the UK partner meet the requirements there is no need.

LauraBou wrote: ↑

Wed Feb 27, 2019 5:06 pm

Hi,

I am in a very similar situation.

Did you get an answer on this from elsewhere?

Thanks, Laura.

Unfortunately I've had no luck in finding out if just one month is okay - so I think I'll need to wait for 6 more payslips! Did you find anything out?

Frontier Mole wrote: ↑

Thu Feb 28, 2019 5:52 am

You will need to produce six payslips once you return to work, so you will have to wait a bit longer to prove your income.

Thanks for your reply! I was struggling to get a straight answer for this!

luannacool wrote: ↑

Wed Feb 27, 2019 5:13 pm

I had the same problem and it turns out if you are the British spouse and your partner is outside UK or if you are applying within the UK and the non-uk partner does not meet the financial requirement, it is better to wait for the 6 months payslips after you going back to work. What counts is the 6 last paychecks or in some cases the 12 months period.

Thanks for your reply I guess I'd rather wait the 6 months and be sure that our application won't be pushed back!

Hi,

My husband was granted ILR on Tuesday! In total I had 7 weeks unpaid maternity leave and 6 weeks back in work (on holiday) before we applied. I made sure to include my first full payslip and corresponding bank statement for my first pay day after maternity leave. I included 24 months of payslips and bank statements in my application.

We did however work out that, inclusive of my latest pay (my first month back) plus my maternity pay and my husband’s pay, we actually met the financial requirement over the preceding 12 months from application. This was only noted before we applied and solicitor advised that we should be fine applying regardless of this.

In any case, my belief is that the home office would struggle to reject an application based solely on the fact that the sponsor was on statutory maternity leave.

Laura x

LauraBou wrote: ↑

Thu Apr 18, 2019 8:53 pm

Hi,

My husband was granted ILR on Tuesday! In total I had 7 weeks unpaid maternity leave and 6 weeks back in work (on holiday) before we applied. I made sure to include my first full payslip and corresponding bank statement for my first pay day after maternity leave. I included 24 months of payslips and bank statements in my application.

We did however work out that, inclusive of my latest pay (my first month back) plus my maternity pay and my husband’s pay, we actually met the financial requirement over the preceding 12 months from application. This was only noted before we applied and solicitor advised that we should be fine applying regardless of this.

In any case, my belief is that the home office would struggle to reject an application based solely on the fact that the sponsor was on statutory maternity leave.

Laura x

Unpaid maternity leave during the last 12 months from the date of application wont be counted towards any period relating to employment means it wont break the continuity of job because of being discounted. For instance if you took 3 weeks unpaid leave then you would have to show the income for the last 6 months & 3 weeks (category A). But employer letter must state that you were on unpaid leave for such period.

seagul wrote: ↑

Thu Apr 18, 2019 9:12 pm

LauraBou wrote: ↑

Thu Apr 18, 2019 8:53 pm

Hi,

My husband was granted ILR on Tuesday! In total I had 7 weeks unpaid maternity leave and 6 weeks back in work (on holiday) before we applied. I made sure to include my first full payslip and corresponding bank statement for my first pay day after maternity leave. I included 24 months of payslips and bank statements in my application.

We did however work out that, inclusive of my latest pay (my first month back) plus my maternity pay and my husband’s pay, we actually met the financial requirement over the preceding 12 months from application. This was only noted before we applied and solicitor advised that we should be fine applying regardless of this.

In any case, my belief is that the home office would struggle to reject an application based solely on the fact that the sponsor was on statutory maternity leave.

Laura x

Unpaid maternity leave during the last 12 months from the date of application wont be counted towards any period relating to employment means it wont break the continuity of job because of being discounted. For instance if you took 3 weeks unpaid leave then you would have to show the income for the last 6 months & 3 weeks (category A). But employer letter must state that you were on unpaid leave for such period.

This is exactly what I took the immigration rules to mean however, when we consulted a solicitor, he told us that “unpaid maternity leave is not counted” and therefore we did not meet the financial requirement. He then asked for £1500 to take our case on. We took advice from a different solicitor who confirmed my initial assumptions were correct and we would be fine, which we were.

LauraBou wrote: ↑

Thu Apr 18, 2019 9:16 pm

seagul wrote: ↑

Thu Apr 18, 2019 9:12 pm

LauraBou wrote: ↑

Thu Apr 18, 2019 8:53 pm

Hi,

My husband was granted ILR on Tuesday! In total I had 7 weeks unpaid maternity leave and 6 weeks back in work (on holiday) before we applied. I made sure to include my first full payslip and corresponding bank statement for my first pay day after maternity leave. I included 24 months of payslips and bank statements in my application.

We did however work out that, inclusive of my latest pay (my first month back) plus my maternity pay and my husband’s pay, we actually met the financial requirement over the preceding 12 months from application. This was only noted before we applied and solicitor advised that we should be fine applying regardless of this.

In any case, my belief is that the home office would struggle to reject an application based solely on the fact that the sponsor was on statutory maternity leave.

Laura x

Unpaid maternity leave during the last 12 months from the date of application wont be counted towards any period relating to employment means it wont break the continuity of job because of being discounted. For instance if you took 3 weeks unpaid leave then you would have to show the income for the last 6 months & 3 weeks (category A). But employer letter must state that you were on unpaid leave for such period.

This is exactly what I took the immigration rules to mean however, when we consulted a solicitor, he told us that “unpaid maternity leave is not counted” and therefore we did not meet the financial requirement. He then asked for £1500 to take our case on. We took advice from a different solicitor who confirmed my initial assumptions were correct and we would be fine, which we were.

You done very good by not following the first solicitor because you seems like easily be able to fulfills the financial requirement.

seagul wrote: ↑

Thu Apr 18, 2019 9:21 pm

LauraBou wrote: ↑

Thu Apr 18, 2019 9:16 pm

seagul wrote: ↑

Thu Apr 18, 2019 9:12 pm

LauraBou wrote: ↑

Thu Apr 18, 2019 8:53 pm

Hi,

My husband was granted ILR on Tuesday! In total I had 7 weeks unpaid maternity leave and 6 weeks back in work (on holiday) before we applied. I made sure to include my first full payslip and corresponding bank statement for my first pay day after maternity leave. I included 24 months of payslips and bank statements in my application.

We did however work out that, inclusive of my latest pay (my first month back) plus my maternity pay and my husband’s pay, we actually met the financial requirement over the preceding 12 months from application. This was only noted before we applied and solicitor advised that we should be fine applying regardless of this.

In any case, my belief is that the home office would struggle to reject an application based solely on the fact that the sponsor was on statutory maternity leave.

Laura x

Unpaid maternity leave during the last 12 months from the date of application wont be counted towards any period relating to employment means it wont break the continuity of job because of being discounted. For instance if you took 3 weeks unpaid leave then you would have to show the income for the last 6 months & 3 weeks (category A). But employer letter must state that you were on unpaid leave for such period.

This is exactly what I took the immigration rules to mean however, when we consulted a solicitor, he told us that “unpaid maternity leave is not counted” and therefore we did not meet the financial requirement. He then asked for £1500 to take our case on. We took advice from a different solicitor who confirmed my initial assumptions were correct and we would be fine, which we were.

You done very good by not following the first solicitor because you seems like easily be able to fulfills the financial requirement.

Thank you! I’m so glad I went with my initial instincts

Dear All,CR001,Casa,Seagul,

I have a similar question, do i continue here or open a new thread.
Awaiting your reply soonest as nearly at point of finishing the whole application
but we do not want to run the risk of wasting our money and time.

Thank you all.

seggy4sure wrote: ↑

Thu Jun 20, 2019 1:27 pm

Dear All,CR001,Casa,Seagul,

I have a similar question, do i continue here or open a new thread.
Awaiting your reply soonest as nearly at point of finishing the whole application
but we do not want to run the risk of wasting our money and time.

Thank you all.

Please continue your questions in your own topic that you already have.

immigration-for-family-members/spousal- ... l#p1791253

Thank you CR001, I go there now.