Financial requirement category B - what evidence do I have to provide from previous employers?

Hi, my wife (Chinese citizen) is currently on an FLR-M visa which expires in September, she is on 5 year route, has already lived in the UK over 5 years and has passed her Life in UK and IELTS, so we are looking at ILR.

The official timescale for SET-M applications is 6 months although many people say it is usually less. What I would like to know is whether if we apply now and haven't got the result by September when her visa expires, will she have to leave the country or is there some way to extend until the application outcome is known? As we are trying to figure out if we need to book the super priority service. Many thanks

If your wife applies for ILR before her current permission (visa) expires her current FLR(M) leave will continue unchanged until she gets a decision on the ILR application. This means that there is no need for her to leave the UK even if the ILR decision doesn't come through by the time her current permission (visa) expires.

This is under section 3C

manci wrote: ↑

Tue Jun 15, 2021 1:05 pm

If your wife applies for ILR before her current permission (visa) expires her current FLR(M) leave will continue unchanged until she gets a decision on the ILR application. This means that there is no need for her to leave the UK even if the ILR decision doesn't come through by the time her current permission (visa) expires.

This is under section 3C

Thank you very much. So can I assume that section 3C still applies even if the application to vary was made "late" according to the processing time?

Government documents about section 3C use the term "in time application" which I understood to mean an application made with enough time to complete as per the processing time. But this term "in time application" doesn't appear in the actual legislation, seemingly.

kidburla wrote: ↑

Tue Jun 15, 2021 12:33 pm

Hi, my wife (Chinese citizen) is currently on an FLR-M visa which expires in September, she is on 5 year route, has already lived in the UK over 5 years

Has your wife been living in the UK for 5+ years on a partner visa or the 5+ years are a combination of time on another type of visa and a partner visa?

If you have read the legislation, that itself tells you what an "in-time application" is.

Secton 3C of the Immigration Act 1971 wrote:3C Continuation of leave pending variation decision

(1)This section applies if—
(a)a person who has limited leave to enter or remain in the United Kingdom applies to the Secretary of State for variation of the leave,
(b)the application for variation is made before the leave expires, and
(c)the leave expires without the application for variation having been decided.

An "in-time application" is one made when the applicant still has an extendable form of Leave to Remain (so, not visit visas) and makes the application to extend or vary that leave while they still have the leave and are in the UK.

An "out-of-time application" would be one that is made after the applicant's leave has expired. It may be just the day after the date on which the applicant's leave expired, but Section 3C would not apply then.

Section 3C extends whatever leave the applicant already had on the day of application until the time the application is decided or until all appeals and/or administrative review procedures are spent.

manci wrote: ↑

Tue Jun 15, 2021 7:16 pm

Has your wife been living in the UK for 5+ years on a partner visa or the 5+ years are a combination of time on another type of visa and a partner visa?

The first 6 months were on an engagement visa, since then it was FLR-M, does that make a difference?

secret.simon wrote: ↑

Tue Jun 15, 2021 7:49 pm

An "in-time application" is one made when the applicant still has an extendable form of Leave to Remain (so, not visit visas) and makes the application to extend or vary that leave while they still have the leave and are in the UK.

An "out-of-time application" would be one that is made after the applicant's leave has expired. It may be just the day after the date on which the applicant's leave expired, but Section 3C would not apply then.

Thanks a lot, that's what I wanted to know. It's not how I would use the term "in-time application" (who am I to reason why?) but the definition you give does explain why that term was used on the government website.

kidburla wrote: ↑

Wed Jun 16, 2021 10:27 pm

manci wrote: ↑

Tue Jun 15, 2021 7:16 pm

Has your wife been living in the UK for 5+ years on a partner visa or the 5+ years are a combination of time on another type of visa and a partner visa?

The first 6 months were on an engagement visa, since then it was FLR-M, does that make a difference?

It does. The time spent under the fiance visa does not count for the purpose of ILR.

Her ILR clock will have started after the first grant of FLR(M) after the marriage and she would be eligible to apply for ILR on or after the fifth anniversary of that first grant of FLR(M).

secret.simon wrote: ↑

Thu Jun 17, 2021 9:42 am

kidburla wrote: ↑

Wed Jun 16, 2021 10:27 pm

manci wrote: ↑

Tue Jun 15, 2021 7:16 pm

Has your wife been living in the UK for 5+ years on a partner visa or the 5+ years are a combination of time on another type of visa and a partner visa?

The first 6 months were on an engagement visa, since then it was FLR-M, does that make a difference?

It does. The time spent under the fiance visa does not count for the purpose of ILR.

Her ILR clock will have started after the first grant of FLR(M) after the marriage and she would be eligible to apply for ILR on or after the fifth anniversary of that first grant of FLR(M).

Thank you, I didn't notice that! That's really disappointing but good to know so I appreciate you pointing it out.

Her first FLR-M was granted in November 2016 and her current (second FLR-M) visa expires September 2021 so there is only a two month difference. Will we still need to apply for another 2.5 year FLR-M and then wait until March 2024 to apply for ILR?

PS: I am also thinking, if we make an "in time" application for FLR-M, meaning my wife can stay on section 3C leave while we are waiting for a decision, and if we pass the "five year anniversary" date while still waiting for a decision, can we then make an ILR application which will "vary" the FLR-M application already made? And in that case, would we be exempt from paying the fees for FLR-M and only have to pay the ILR fees?

I ask this because when you are starting a new visa application it asks
"Do you currently have an application with the Home Office for leave to remain for which you have not yet received a decision?
If you have submitted any other applications to the Home Office which have not yet been decided then submitting this application varies those previous applications. This means that only this application, which you are now completing, will now be considered."

Hi guys,

Sorry, ignore my last two messages. Unfortunately this forum doesn't give me the option to delete/edit my own messages.

Now I found out that my wife's current visa expires 1 day after the 5 year anniversary, which is on the 17th September (not November as I had previously thought).

Does that mean I have to make the ILR application on the day the current visa expires? And then this would count as an "in-time application" even though I hadn't submitted all the relevant documents yet (which I would obviously then do as soon as possible).

kidburla wrote: ↑

Sun Jun 20, 2021 12:31 pm

Now I found out that my wife's current visa expires 1 day after the 5 year anniversary, which is on the 17th September (not November as I had previously thought).

She can apply 28 days before the five year anniversary of her first FLR(M) visa.
I find this website to be helpful to double check date calculation:
https://www.timeanddate.com/date/dateadd.html
You can put the 5 year anniversary date in and then subtract 28 days.

kidburla wrote: ↑

Sun Jun 20, 2021 12:31 pm

Does that mean I have to make the ILR application on the day the current visa expires? And then this would count as an "in-time application" even though I hadn't submitted all the relevant documents yet (which I would obviously then do as soon as possible).

You can make the Set(M) application 28 days before the five year anniversary, and it must be before the expiration date of the current visa to be in time. And yes, as long as you make the application (that is, submit and pay for it) before the current visa expires, it will be in time, even if document upload and biometric occur later.
The date of submission and payment is the official date of application. You may not be able to find a biometric appointment until 4 weeks after your application, but that is ok. Once the "in-time" application is in, the current leave continues until a decision is made.

Dantean wrote: ↑

Sun Jun 20, 2021 4:16 pm

kidburla wrote: ↑

Sun Jun 20, 2021 12:31 pm

Now I found out that my wife's current visa expires 1 day after the 5 year anniversary, which is on the 17th September (not November as I had previously thought).

She can apply 28 days before the five year anniversary of her first FLR(M) visa.
I find this website to be helpful to double check date calculation:
https://www.timeanddate.com/date/dateadd.html
You can put the 5 year anniversary date in and then subtract 28 days.

kidburla wrote: ↑

Sun Jun 20, 2021 12:31 pm

Does that mean I have to make the ILR application on the day the current visa expires? And then this would count as an "in-time application" even though I hadn't submitted all the relevant documents yet (which I would obviously then do as soon as possible).

You can make the Set(M) application 28 days before the five year anniversary, and it must be before the expiration date of the current visa to be in time. And yes, as long as you make the application (that is, submit and pay for it) before the current visa expires, it will be in time, even if document upload and biometric occur later.
The date of submission and payment is the official date of application. You may not be able to find a biometric appointment until 4 weeks after your application, but that is ok. Once the "in-time" application is in, the current leave continues until a decision is made.

Thank you very much for the information. Do you have a reference for this 28 day rule, for example from legislation, from the Immigration Rules, or from a webpage on government website? I tried searching Google about this but unfortunately could not find any references other than on this forum.

The 28 days is a concession provided by ukbi. It is not an immigration rule or in the legislation. The concession has been in place for many years now and many of us have used it with no issues.

kidburla wrote: ↑

Mon Jun 21, 2021 9:10 am

Do you have a reference for this 28 day rule, for example from legislation, from the Immigration Rules, or from a webpage on government website? I tried searching Google about this but unfortunately could not find any references other than on this forum.

I sometimes see this document quoted, but it lists the routes it applies to (e.g. Skilled worker, Tier 2 (General), UK Ancestry, etc.) and it does not include the Spouse route.

Continuous Residence guidance
https://assets.publishing.service.gov.u ... idence.pdf

You must count backwards from whichever of the following is most beneficial to the applicant to see whether they meet the qualifying period:
• the date of application
• any date up to 28 days after the date of application
• the date of decision
• for a person seeking settlement on the UK Ancestry route, the date of their last grant of permission

But, if you look at the old pdf guidance notes for form Set (M), it has the text below. That document seems to no longer be on the gov.uk servers but some solicitors' sites still have it.

5. When To Apply
You and any children under 18 who are applying with you should apply before the end of your/their permitted stay in the UK when you are nearing completion of the qualifying period required by the Immigration Rules.
Please do not apply more than 28 days before completing that period. If you apply earlier than that, your application may be refused. If that happens, we will not refund the fee and you will have to pay again when reapplying.

If you do a search for "Set M guidance notes" you should be able to find the pdf from 2017. UKVI doesn't seem to publish an equivalent document for the online application, but you might find it reassuring that it has been documented on an official UKVI document. And as CR001 mentions, it has successfully been used by many who post in the forum.

Thank you all for your contributions and help.

Hi, I am the British husband of a Chinese citizen who has been on a spouse visa for 5 years and who has applied for ILR (SET(M)). I have been with my current employer for only just over 4 months, and I had another job with a different employer within the previous 12 months. I am able to meet the financial requirement in category B as my current gross annual salary is more than the threshold, and also my total income from both my current employer and previous employer over the last 12 months is more than the threshold.

After completing the application form which we submitted today, the document checklist only requires us to submit the evidence (payslips, bank statements and confirmation letter) from my current employer. It does not mention any evidence relating to my previous employer.

Also, looking at the Appendix FM-SE paragraph 2(a), it only requires me to provide payslips from "any period of salaried employment in the period of 12 months prior to the date of application". I interpret this to mean I can select one out of any of the periods of salaried employment, as if it meant I need to submit evidence for all (here both) periods of salaried employment then it would have said "any periods..." not "any period...". (The evidence for the bank statements and confirmation letter only relate to the same period/employer as the payslips being provided in tandem.)

In summary it looks like I don't have to submit any evidence for my previous employer that I am using as part of the financial eligibility under category B. However I just wanted to double check this as it seems quite odd to me, as they have no way to verify I am actually eligible under the second part of category B. On the other hand, I would find it rather difficult to obtain a confirmation letter from my previous employer as they only provide limited HR services to me as a former employee.

Under Category B, the financial requirement must be met and evidenced in 2 parts.

First, where the applicant’s partner and/or the applicant (if they are in the UK with
permission to work) is in salaried employment at the date of application and has
been with the same employer, or earning the amount relied upon, for less than the
last 6 months, they can count the gross annual salary at the date of application
towards the financial requirement. There is no required minimum period for this
current employment, provided that the requirements for specified evidence under
paragraph 2 of Appendix FM-SE can be met in respect of it.

Second, the person must in addition have received in the 12 months prior to the date
of application the level of income required to meet the financial requirement, based
on:
• the gross amount of salaried or non-salaried employment income of the
applicant’s partner (in the UK or overseas) and/or the applicant (if they are in
the UK with permission to work)
• the gross amount of any specified non-employment income received by the
applicant’s partner, the applicant or both jointly, provided they continue to own
the relevant asset (for example, property, interest from shares) at the date of
application
• the gross amount of any State (UK or foreign), occupational or private pension
received by the applicant’s partner or the applicant

The guide is very clear on this: https://assets.publishing.service.gov.u ... .0-ext.pdf

Zimba wrote: ↑

Fri Sep 17, 2021 11:42 am

Under Category B, the financial requirement must be met and evidenced in 2 parts.

First, where the applicant’s partner and/or the applicant (if they are in the UK with
permission to work) is in salaried employment at the date of application and has
been with the same employer, or earning the amount relied upon, for less than the
last 6 months, they can count the gross annual salary at the date of application
towards the financial requirement. There is no required minimum period for this
current employment, provided that the requirements for specified evidence under
paragraph 2 of Appendix FM-SE can be met in respect of it.

Second, the person must in addition have received in the 12 months prior to the date
of application the level of income required to meet the financial requirement, based
on:
• the gross amount of salaried or non-salaried employment income of the
applicant’s partner (in the UK or overseas) and/or the applicant (if they are in
the UK with permission to work)
• the gross amount of any specified non-employment income received by the
applicant’s partner, the applicant or both jointly, provided they continue to own
the relevant asset (for example, property, interest from shares) at the date of
application
• the gross amount of any State (UK or foreign), occupational or private pension
received by the applicant’s partner or the applicant

The guide is very clear on this: https://assets.publishing.service.gov.u ... .0-ext.pdf

Hi, I have already read this information, hence why I said in my original post "I am able to meet the financial requirement in category B as my current gross annual salary is more than the threshold, and also my total income from both my current employer and previous employer over the last 12 months is more than the threshold."

I am still unclear on the questions asked in my original post with regard to the evidence I have to provide in relation to my former employer.

Hi all, sorry, I have just realised that actually I can evidence that we are able to meet the financial requirement solely on the basis of my current employer. This is because my gross salary to date with my current employer is already above the financial requirement threshold. (Previously I incorrectly used my net salary rather than gross salary for this calculation, hence my earlier questions.)

On this basis, can I assume we don't need to provide any evidence relating to my previous employer, as it's unnecessary to take this into consideration in order to demonstrate we meet the financial requirement?

kidburla wrote: ↑

Fri Sep 17, 2021 1:48 pm

Hi all, sorry, I have just realised that actually I can evidence that we are able to meet the financial requirement solely on the basis of my current employer. This is because my gross salary to date with my current employer is already above the financial requirement threshold. (Previously I incorrectly used my net salary rather than gross salary for this calculation, hence my earlier questions.)

On this basis, can I assume we don't need to provide any evidence relating to my previous employer, as it's unnecessary to take this into consideration in order to demonstrate we meet the financial requirement?

Correct if for 6months the gross meets CAT A, then you are able to use all financial requirement from current employer.

kidburla wrote: ↑

Fri Sep 17, 2021 1:48 pm

Hi all, sorry, I have just realised that actually I can evidence that we are able to meet the financial requirement solely on the basis of my current employer. This is because my gross salary to date with my current employer is already above the financial requirement threshold. (Previously I incorrectly used my net salary rather than gross salary for this calculation, hence my earlier questions.)

On this basis, can I assume we don't need to provide any evidence relating to my previous employer, as it's unnecessary to take this into consideration in order to demonstrate we meet the financial requirement?

Have you made £18600 in the last 4 months ?
If not, then how are you saying you can solely rely on your current employment to satisfy part 2 ?

AmazonianX wrote: ↑

Fri Sep 17, 2021 2:09 pm

Correct if for 6months the gross meets CAT A, then you are able to use all financial requirement from current employer.

The OP has only been employed for 4 months in his current position, Category A is not an option

Zimba wrote: ↑

Fri Sep 17, 2021 2:13 pm

kidburla wrote: ↑

Fri Sep 17, 2021 1:48 pm

Hi all, sorry, I have just realised that actually I can evidence that we are able to meet the financial requirement solely on the basis of my current employer. This is because my gross salary to date with my current employer is already above the financial requirement threshold. (Previously I incorrectly used my net salary rather than gross salary for this calculation, hence my earlier questions.)

On this basis, can I assume we don't need to provide any evidence relating to my previous employer, as it's unnecessary to take this into consideration in order to demonstrate we meet the financial requirement?

Have you made £18600 in the last 4 months ?
If not, then how are you saying you can solely rely on your current employment to satisfy part 2 ?

Yes, I have made more than £18600 gross in the last 4 months. That's what I meant by "my gross salary to date with my current employer is already above the financial requirement threshold". My financial requirement threshold is £18600. Thanks.

Then you satisfy the requirements using only your current job

Zimba wrote: ↑

Fri Sep 17, 2021 4:47 pm

Then you satisfy the requirements using only your current job

That's correct, and what I was saying in my earlier message. What I'm asking is do I still need to provide evidence relating to my previous employer even though I am not relying on that evidence to prove the financial requirement? The guidance on the government website says I need to provide "Payslips covering any period of salaried employment (current and previous) in the period of 12 months prior to the date of application". My employment with my previous employer was a period of salaried employment and did generate payslips in the period of 12 months prior to the date of application. However I'm in no way relying on those payslips so I assume I don't need to provide them?

Follow the guide and provide evidence as given in the guide and the rules. The list is generic