Spouse Visa-Full time employee & Director Financial Requ

[claris]

Hi,

I am a full time salaried employee, a director and a minority shareholder in a private limited company in the UK. I currently have ILR(through HSMP+Tier 1) and my wife in India will be applying for spouse visa. The salary paid to me alone(excluding dividends) meets the minimum required income of £ 18600. My employer pays the PAYE & NI to HMRC for my salary.

I have been going through a lot of posts here and also going through the UKBA website. Can someone confirm if my understanding below for financial requirements/evidence for spouse visa is correct?

1. Does my company fall in the category of appendix fmse paragraph 9a?

(a) The specified type of limited company is one in which:

(i) the person is a director of the company (or another company within the same group); and
(ii) shares are held (directly or indirectly) by the person, their partner or the following family members of the person or their partner: parent, grandparent, child, stepchild, grandchild, brother, sister, uncle, aunt, nephew, niece or first cousin; and
(iii) any remaining shares are held (directly or indirectly) by fewer than five other persons.

I am a minority shareholder and the rest of the shares are held by my other fellow directors who are not related to me and the other shareholders are less than five persons in total.


2. If point 1 above is correct, do I have to provide the evidence below as per section FM 9.8 to prove that I meet minimum required income of £ 18600?

9. In respect of income from employment and/or shares in a limited company based in the UK of a type specified in paragraph 9(a), the requirements of paragraph 9(b)-(d) shall apply in place of the requirements of paragraphs 2 and 10(b)3:

(a) The specified type of limited company is one in which:
(i) the person is a director of the company (or another company within the same group); and
(ii) shares are held (directly or indirectly) by the person, their partner or the following family members of the person or their partner: parent, grandparent, child, stepchild, grandchild, brother, sister, uncle, aunt, nephew, niece or first cousin; and
(iii) any remaining shares are held (directly or indirectly) by fewer than five other persons.

(b) All of the following must be provided:
(i) Company Tax Return CT600 (a copy or print-out) for the last full financial year and evidence this has been filed with HMRC, such as electronic or written acknowledgment from HMRC.
(ii) Evidence of registration with the Registrar of Companies at Companies House. (iii) If the company is required to produce annual audited accounts, the latest such accounts. (iv) If company 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); (v) Corporate/business bank statements covering the same 12-month period as Company Tax Return CT600.
(vi) A current Appointment Report from Companies House.
(vii) One of the following documents must also be provided:
(1) 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.
(2) Proof of ownership or lease of business premises.
(3) 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.
(c) Where the person is listed as a director of the company and receives a salary from the company, all of the following documents must also be provided:
(i) wage slips and P60 (if issued) covering the same period as the Company Tax Return CT600.
(ii) Personal bank statements covering the same 12-month period as the Company Tax Return CT600 showing that the salary as a director was paid into an account in the name of the person or in the name of the person and their partner jointly.

I want to try and make this as simple as possible to the caseworker for my circumstances. Can anyone offer some advice please?

[sublime688]

If your salary alone exceeds the #18600 annual salary threshold, why then are you bothered with dividends and the rest.

If I understand from your post, you have a salary with tax and NI deducted, so you have payslips, P60 and bank statements as evidence that you are earning a salary that meets the threshold. I do not think you should worry about the rest around your shareholding.

[claris]

If your salary alone exceeds the #18600 annual salary threshold, why then are you bothered with dividends and the rest.

If I understand from your post, you have a salary with tax and NI deducted, so you have payslips, P60 and bank statements as evidence that you are earning a salary that meets the threshold. I do not think you should worry about the rest around your shareholding.

Thanks sublime688 for the advice. My job title is Director and hence I want to fulfil my financial requirement in the right category in the first instance as spouse visa takes a long time.

Under Part 6A of these Rules, "Self-Employed" means an applicant is registered as self-employed with HM Revenue & Customs, or is employed by a company of which the applicant is a controlling shareholder.

I am not a controlling shareholder in my company(I am a minority shareholder) and therefore am under the impression I am not self employed as per UKBA's definition.

The section FM 9.7.1 says that

A limited company is owned by its shareholders. Where such a shareholder is also a director employed by the company, they may be paid a salary and receive dividends, which can generally be counted, as appropriate, as employment or non-employment income under Category A, Category B or Category C. However, if the company is of the type specified in paragraph 9(a) of Appendix FM-SE, the person‟s income will be considered under Category F or Category G. This is because in a company in sole or limited family ownership there is scope for doubt as to the effective control of the company, as the person is a director and shareholder or the other shareholders are family members of that person. In that case, instead of the employment evidence in Category A or Category B or the dividend evidence in Category C, we need evidence about the operation of the company.

Going by the above I also think as you suggested I should not fall in Category F or G as I am not a controlling shareholder in the company.

The guidance is not very clear for my circumstances. Is it possible to explain my circumstances to the UKBA in UK and get a written confirmation saying I fall within Category A. Or do you think I should get some legal help?

Can people reading this thread offer their suggestions please?

[MPH80]

I think you've bolded the wrong bit - you should be focusing on paragraph 9a of fm-se.

9. In respect of income from employment and/or shares in a limited company based in the UK of a type specified in paragraph 9(a), the requirements of paragraph 9(b)-(d) shall apply in place of the requirements of paragraphs 2 and 10(b).

(a) The specified type of limited company is one in which:

(i) the person is a director of the company (or another company within the same group); and
(ii) shares are held (directly or indirectly) by the person, their partner or the following family members of the person or their partner: parent, grandparent, child, stepchild, grandchild, brother, sister, uncle, aunt, nephew, niece or first cousin; and
(iii) any remaining shares are held (directly or indirectly) by fewer than five other persons.

So - let's work down the points in paragraph a:

Point 1 - yes - you meet that - you're a director
Point 2 - yes - you meet that - you own shares
Point 3 - Well - this is where I then struggle ...

How many people own the remaining shares?

M.

[claris]

Thanks MPH80 for taking the time to read and respond.

I think you've bolded the wrong bit - you should be focusing on paragraph 9a of fm-se.

9. In respect of income from employment and/or shares in a limited company based in the UK of a type specified in paragraph 9(a), the requirements of paragraph 9(b)-(d) shall apply in place of the requirements of paragraphs 2 and 10(b).

(a) The specified type of limited company is one in which:

(i) the person is a director of the company (or another company within the same group); and
(ii) shares are held (directly or indirectly) by the person, their partner or the following family members of the person or their partner: parent, grandparent, child, stepchild, grandchild, brother, sister, uncle, aunt, nephew, niece or first cousin; and
(iii) any remaining shares are held (directly or indirectly) by fewer than five other persons.

So - let's work down the points in paragraph a:

Point 1 - yes - you meet that - you're a director
Point 2 - yes - you meet that - you own shares
Point 3 - Well - this is where I then struggle ...

How many people own the remaining shares?

M.

The rest of the shares are owned by 4 other directors. If it helps the other 4 directors are not related to me and I am a minority shareholder.

[MPH80]

It doesn't mention anything in 9a about being a) a minority shareholder or b) the effect of the remaining directors being family members - so the company qualifies under 9a - thus you must meet the requirements of 9b-d.

So, my interpretation is that you don't fall under category a or b, but rather under f or g.

[claris]

It doesn't mention anything in 9a about being a) a minority shareholder or b) the effect of the remaining directors being family members - so the company qualifies under 9a - thus you must meet the requirements of 9b-d.

So, my interpretation is that you don't fall under category a or b, but rather under f or g.

Thanks MPH80 for clarifying. Do you think going through a immigration laywer/advisor will help for my circumstances i.e. applying through category F? Or should I do it on my own?

[MPH80]

All cases can be done without a lawyer ... the success or failure depends on how confident you are to interpret the rules and advice/guidance on the UKBA website to achieve a successful outcome.

If you find yourself reading the website and wishing for a translator for technical or detailed terms - a lawyer might be useful.

Otherwise - go for it.

M.

[claris]

All cases can be done without a lawyer ... the success or failure depends on how confident you are to interpret the rules and advice/guidance on the UKBA website to achieve a successful outcome.

If you find yourself reading the website and wishing for a translator for technical or detailed terms - a lawyer might be useful.

Otherwise - go for it.

M.

Ok, thanks MPH80. I do agree with you. It's more from a peace of mind perspective. I want to get it right the first time. The review, the appeal if it has to happen for any reason takes a long time.