ILR application while on maternity leave - Help

[DayDream]

Hi Guys

My wife is due for her ILR application and also she is currently on maternity leave.

Immigration history
10 Dec 2007 - Work permit approved
03 Jan 2008 - Work permit entry clearance approved
19 Jan 2008 - First entry in to UK
20 June 2008 - Switch from WP to Tier1 G inside UK(postal apps), Tier1 granted for 3 years till 19 June 2011
03 May 2011 - PEO application to extend Tier1G till 02 May 2013

Q1: Can she apply for ILR by 06 Dec 2012 ? (ie 28 days before 03 Jan 2008)

Also she is currently on maternity leave(our baby was born in July 2012) and she is a limited company director who used to draw both salary & dividend until June 2012 and after June she takes only dividends since she is a 50% share holder in my company.

Q2: Can she claim dividends during her maternity leave as earnings?

Q3: Or can she claim for period July 2011- June 2012(last month that she was at work before baby's birth) and waive period Jul-Dec 2012 as this is her maternity break period?

Q4: What additional proof is needed in her case while applying for ILR when she is on maternity leave?


Any help will be much appreciated

Thanks

[geriatrix]

Does she score the required points for income taking into account the dividends for the period that she has been on maternity leave and salary+dividends for the remaining period within the 12 out 15 months window preceding the application?

[DayDream]

Hi

Yes she scores the required points.

Thanks

[geriatrix]

The reason I asked this is that she may find it hard to prove maternity related absence when self-employed.

Does your company pay your wife SMP?
Does your company have a company secretary?

[DayDream]

Hi sushdmehta

Thanks, she was not eligible for SMP and receives MA from Job centre.
Also my company doesn't have a secretary..
Please let me know if there is an issue here.

Thanks again..

[geriatrix]

The settlement policy guidance prescribes the documentary evidences required to prove maternity / adoption related absence when taking advantage of the concession available to Tier 1 (General) migrants. You need two and I cannot say for sure if a letter confirming MA payments will be accepted as a valid evidence.

The choice, therefore, is yours whether you should make a settlement application taking advantage of the maternity / adoption related absence concession or without it, depending on the documentary evidences you can provide in either scenario.

[DayDream]

Hi sushdmehta

After reading the guidance you shared, it is not explicit that the MA letter she received from job centre is a valid second proof of her maternity absence. We have a full birth certificate of our child which we will use as first piece of proof.

Also thinking to get a letter from accountants to confirm that she has been on Maternity break with dates etc.

Regarding earnings, in the guidance it is only mentioned that SMP or adoption payments can be considered. No mention about dividends?

Can she include her dividends as part of earnings if she wants to apply without using the concession?

[DayDream]

By the way, I still assume she is eligible to apply after 6th Dec 2012?

Please correct me if its incorrect.

Thanks

[geriatrix]

1. I don't think an accountant can certify that a self-employed person is on leave - an accountant is not involved in running or supervising the functioning of the business and does not know who is attending office or is absent. Only an employee of the organisation responsible for such records can do so - e.g. - in such cases, a company secretary.
2. What do dividends have to do with proving maternity related absence?
3. If you do not intend to take advantage of the concession then I suppose you can. I am not sure if the caseworker can / will question why the applicant suddenly stopped taking salary but continued receiving dividends.
4. No, she cannot apply any earlier than 28 days before the 5th anniversary of the date of entry in the UK.

[DayDream]

Hi sushdmehta

Thanks for your detailed response.

I meant the guidance doesn't mention that dividends (explicitly) as one of the earnings that an applicant claim during her maternity absence. (Page 27)

Finally is she not allowed 28 days before date of entry clearance because she has leave remaining till May 2013?

Thanks again for you help as always..

[geriatrix]

Finally is she not allowed 28 days before date of entry clearance because she has leave remaining till May 2013?

Yes. Even if she did not have sufficient she couldn't have taken advantage of this instruction because she switched immigration categories.

[DayDream]

Finally is she not allowed 28 days before date of entry clearance because she has leave remaining till May 2013?

Yes. Even if she did not have sufficient she couldn't have taken advantage of this instruction because she switched immigration categories.

Thanks. Lastly can you pleas suggest what 2 docs she can use to prove her maternity absence?
Option1
Babys Full birth certificate & letter from company (signed by me)
Option 2
Baby's full birth certificate & MA claim approval letter from jobcentre

Or pls suggest any other document that can prove her absence..
Cheers

[manci]

Suggest all three documents (options 1 +2) plus "any relevant medical documents that the applicant is content to let us see" provided they give some indication of the absence.

IMHO although payment of MA is not specifically mentioned in the IDI document as one of the proofs needed for absence, it is likely to be taken as equivalent to SMP. There are only two differences between MA and SMP, the amount paid in the first 6 weeks and the source of the payments (Job Centre/company). The benefit entitlement of self-employed mothers is to MA, not SMP.

Strictly speaking MA is also "statutory", it is covered by the The Social Security Contributions and Benefits Act 1992 (Chapter 4).

[DayDream]

Hi Sushdmehta

I guess the answer to whether my wife can include her dividends that she received during her maternity absence will be NO
I'm referring to page 29 in the settlement policy guidance where it is mentioned "dividends paid by a company in which the applicant is active in the day-to-day management"

Please share your thoughts.

Thanks

[DayDream]

Suggest all three documents (options 1 +2) plus "any relevant medical documents that the applicant is content to let us see" provided they give some indication of the absence.

IMHO although payment of MA is not specifically mentioned in the IDI document as one of the proofs needed for absence, it is likely to be taken as equivalent to SMP. There are only two differences between MA and SMP, the amount paid in the first 6 weeks and the source of the payments (Job Centre/company). The benefit entitlement of self-employed mothers is to MA, not SMP.

Strictly speaking MA is also "statutory", it is covered by the The Social Security Contributions and Benefits Act 1992 (Chapter 4).

Hi manci

Thanks for your inputs. I have asked my wife to contact UKba to confirm whether she can submit MA claim as proof of her absence. Will post the outcome.

Cheers

[manci]

the best way to contact UKBA is by email, they usually reply fairly promptly:
SettlementOpsPolicy@homeoffife.gsi.gov.uk