Maternity Pay, Paternity, Adoption & Sick Pay [2020 UK Visa Guidance]

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We discuss this in detail in our Partner & Spouse visa Coronavirus (COVID-19) update article.

This article will discuss how receiving maternity pay, paternity pay, adoption pay or sick pay can affect your UK partner visa or UK parent visa application under Appendix FM.

(By the way, if you are wondering, Appendix FM is the standard and most commonly relied on route for non-UK partners of British (or settled) partners in the UK.)

Therefore, this article applies to the following visas, for which we have written free & detailed guides:

Spouse visa DIY Application Pack

The impact of receiving one of the above is something that is commonly overlooked (mostly due to the Home Office not really making the immigration rules and guidance that clear to prospective applicants).

Before we discuss how the possible implications of receiving maternity, paternity, adoption or sick pay, let’s first define these to make sure that we are on the same page.


What is maternity pay?

Maternity pay is normally paid to expectant mothers (or mothers who recently had a baby).

Maternity pay can be either statutory (which you are entitled to by law) or contractual (as agreed with your employer in a contract).

More general information on maternity pay can be found here.


What is paternity pay?

Paternity pay is generally for fathers, husbands and partners of the expectant mother (or adopter).

Similar to maternity pay, this can be either statutory (pay which you are entitled to by law) or contractual (pay to which you are entitled due to an agreement with your employer).


What is sick pay?

Sick pay is provided to those in employment who are too sick to work.

This can be either statutory (which you are entitled to by law) or contractual (as agreed with your employer in a contract).

More general information about sick pay can be found on the gov.uk site or the citizens advice bureau website here.


What is UK maternity allowance?

UK Maternity allowance should not be confused with maternity pay.

As discussed here, maternity allowance is normally paid to pregnant women who do not qualify for statutory maternity pay.

In UK immigration law, there is also the important difference regarding the categorisation of the two different sources of income.

  • UK maternity allowance is an income that can be included towards the financial requirement under Category C.
  • Maternity pay, on the other hand, is included under Category A.

Why should I care about the above?

If you receive maternity pay, paternity pay, adoption pay or sick pay, this can impact the spouse visa UK 2020 requirements.

In particular, receiving one of the above will add a degree of flexibility to your application, as this can change:

(a) the relevant date for considering the length of employment with your current employer; and

(b) the relevant period for calculating employment income income.

However, if you were to rely on the provisions relating to maternity, paternity, adoption or sick pay, certain additional documents & information must be provided.

By the way, the rules discussed in this article also applies to overseas sponsors who are returning to the UK with the applicant.

For more information on the partner visa financial requirement generally, see our spouse visa UK financial requirements guidance for 2020 article.

step 1

What category will your employment income fall under?

As we discuss in our article, “Category A or B, F or G? [UK Visa Financial Requirements Guide]“, this is important to know because:

  • The calculation of employment income that you can use towards the financial requirement will be different depending on the category; and
  • The financial supporting documentation that you will be required to submit will be different depending on the category.

#1 First, you should make absolutely sure whether your employer is a ‘specified limited company‘ or not.

A ‘specified limited’ company is defined in paragraph 9(a) of Appendix FM-SE as one in which:

  • The applicant and/or sponsor is a director or employee of the limited company; and
  • Shares of this employing company are held by the applicantsponsor or by family members of the applicant and/or sponsor; and
  • The remaining shares are held by fewer than five other persons
  • Family members here include: parents, grandparents, children, stepchildren, grandchildren, brothers, sisters, uncles, aunts, nephews, nieces and first cousins.

It is also important to note that only UK registered companies are specified limited companies under the Immigration Rules.

For a more in-depth discussion of specified limited companies, check out our article “Specified Limited Company Guidance [Sole Directors, Owners and Employees]“.

The following are examples of non-specified limited companies and a specified limited companies:

Specified limited company example #1

Jeffrey intends to satisfy the financial requiring using income from the limited company that he owns.

Jeffrey is the sole shareholder of this company.

This company is therefore a specified limited company and this income must be included under Category F or Category G.

Specified limited company example #2

Steven is currently employed by a family owned UK limited company.

Steven does not own any of the shares of the company.

The only person that holds shares of this company is Steven’s brother, Nick.

This is a specified limited company and therefore Steven’s employment income must be included under Category F or G.

On the other hand, the following are two non-specified limited company examples:

Non-specified limited company example #1

Susan is currently receiving salaried employment income.

The employer is a company where shares are only held by people who are not family members.

Susan’s income therefore can be included under Category A or B as this is not a specified limited company.

Non-specified limited company example #2

Terence is currently employed by a UK ltd company that is owned by his father.

However, since there are 8 people that hold the shares in the employing company, this employment income can be included under Category A or B as it is not a specified limited company.

When the employer is a specified limited company and the employee receives maternity, paternity, adoption or sick pay in the UK, the issue becomes rather complex.

In such a case, you’d be best speaking to an immigration advisor about your particular circumstances, as the best advice given will be quite fact specific.

Just so this article benefits the majority of its readers, this article will assume that the employer is not a specified limited company.


#2 You should check whether the UK partner (a.k.a. the ‘sponsor’) receives a “permitted benefit”.

If the UK partner receives a permitted benefit, then Categories A-G do not generally apply.

Instead, a separate ‘adequate maintenance test‘ applies which will govern whether the financial requirement is met.

The following are permitted benefits:

  • Carer’s Allowance.
  • Disability Living Allowance.
  • Severe Disablement Allowance.
  • Industrial Injuries Disablement Benefit.
  • Attendance Allowance.
  • Personal Independence Payment.
  • Armed Forces Independence Payment or Guaranteed Income Payment under the Armed Forces Compensation Scheme.
  • Constant Attendance Allowance, Mobility Supplement or War Disablement Pension under the War Pensions Scheme.
  • Police Injury Pension.

#3 If you have been employed for longer than 6 months with your current employer when you submit the online application, then you should first consider if you can meet the financial requirement under Category A

If you do not meet the financial requirement under Category A, you should then look to how the financial requirement is calculated under Category B.


#4 If you have been employed for fewer than 6 months with your current employer when you submit the online application, you will only be able to include your income under Category B.

If time permits, however, it may be open for you to wait until the employed partner has been employed for 6 months or longer and then submit the application under Category A.


How does unpaid maternity leave, paternity leave, adoption leave, parental leave or sick leave affect which category you apply under?

Unpaid maternity leave, paternity leave, adoption leave, parental leave or sick leave can affect which category you apply under.

However, in most cases, it will not affect the Category that you decide to apply under.

The general rule

Any periods of unpaid maternity, paternity, adoption, parental or sick leave should be disregarded regarding calculating the length of employment.

It will not break any continuous period relating to the person’s employment or income from employment.

This is because of Appendix FM-SE para 13 (i), which states:

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 this Appendix provides.

So, disregarding any unpaid maternity, paternity, adoption, parental or sick leave, if you have been employed for longer than 6 months with the current employer, then Category A may be open to you.

If you have not been employed for longer than 6 months with the current employer, then Category A will not be open to you – if you want to rely on Category A, you will have to wait until you have been employed for longer than 6 months with the current employer.

The next question when determining whether you should apply under Category A and Category B is how the gross annual income from employment is calculated.

step 2

How do you calculate the gross annual income from employment when maternity, paternity, adoption or sick pay is received?

The way in which you have to calculate your income completely depends on what category your employment income falls under.

If you are unsure about what category you can apply under, please re-read step 1 of this article.

Category A

STEP 1 – First, identify the relevant time period for the employment income

In order to calculate the gross annual income from employment, if the person is (or was) in receipt of maternity, paternity, adoption or sick pay in the 6 months prior to the submission of the application, they can choose the relevant period to be either:

i) the 6 months prior to the date the commencement of the maternity, paternity, adoption or sick leave;  OR

ii) the 6 months prior to the date of application.

This is because of Appendix FM-SE para 16 (b), which states:

The relevant period for calculating income from their salaried employment will be the period prior to the commencement of the maternity, paternity, adoption or sick pay or to the date of application.

Knowing the relevant time period is important, not only because it will affect the time period for which documents should cover, but also because it affects how the gross annual income from employment is calculated.

Salaried employment example

Number of months prior to the application of the online submission Gross monthly income from employment
11.5 £4,000
10.5 £4,000
9.5 £4,000
8.5 £4,000
7.5 £4,000
6.5 £4,000
5.5 £4,000
4.5 £4,000
3.5 £4,000
2.5 (maternity pay started being received) £1,000
1.5 £1,000
0.5 £1,000

In the above example, the employed partner started receiving maternity pay exactly 2.5 months prior to submitting the online application.

Since the employed partner is in receipt of maternity pay (or has been received such pay in the 6 months prior to the date of application), they will be able to choose the relevant time period to be:

i) Months 8.5-3.5 (the period prior to the commencement of the maternity pay); or

ii) Months 5.5-0.5 (the 6 months prior to the submission of the online application).

The specified time periods for combining other sources of income (e.g. non-employment income under Category C) will remain the same, unless explicitly stated in Appendix FM-SE and Appendix FM 1.7.

STEP 2 -Note that any periods of unpaid maternity, paternity, adoption, parental or sick leave should be disregarded regarding calculating the length of employment.

It will not break any continuous period relating to the person’s employment or income from employment.

This is because of paragraph of 13(i) of Appendix FM-SE which states:

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 this Appendix provides.

Example

The sponsor, Sarah, is using her non-salaried employment under Category A in order to meet the financial requirement.

Sarah had 3 weeks’ unpaid maternity leave in the 3 months prior to submitting the online application.

This 3 week period will therefore be ignored for the purposes of the calculation of gross annual income from employment under Category A.

It will also not break the required 6-month employment that is required under Category A.


STEP 3 – You must determine whether the employment is either salaried or non-salaried.

What is salaried employment?

Salaried jobs are normally those where the employed partner has been provided with an employment contract that states a minimum amount of working hours (which are paid at a minimum fixed rate).

What is non-salaried employment?

Non-salaried jobs that normally those where the employed person is paid an amount based on the amount of work undertaken (e.g. per hour).

The hours that the employee is required to work may vary from week to week.


STEP 4 – If the employment is salaried, you multiply the lowest salary payment received in the ‘relevant time period’ by 12 (if salary is received monthly) or by 52 (if the salary is received weekly).

To continue to use the example stated in step 1, the gross annual income from salaried employment here, if the relevant time period is the 6 months prior to the submission of the application, will be £12,000 (£1,000, which is the lowest level of annual salary received during the relevant timer period, multiplied by 12).

If, on the other hand, the employed partner chooses to rely on the 6 months prior to the commencement of the maternity pay as the relevant financial period, the gross annual income from salaried employment here will be £48,000 (£4,000, which is the lowest level of gross annual salary received during the relevant time period, multiplied by 12).

The employed partner in the above example would be advised to select the 6 months prior to the commencement of the maternity pay as the relevant time period.

The 6 months prior to the online application submission will not meet the financial requirement here.


STEP 5 – If the employment is non-salaried, you should do the following in order to work out the gross annual income from non-salaried employment that you can include under Category A:

i) Total the gross income that you have received from employment in the relevant time period

ii) Divide the figure that is reached in i) by 6

iii) Multiply the figure that is reached in ii) by 12


Category B

STEP 1 – Identify the relevant time period for the employment income

In order to calculate the amount of employment that can be included under Category B, if the person is in receipt of maternity, paternity, adoption or sick pay or has been so in the 6 months prior to the date of application, they can choose the relevant period to be either:

i) The 12 months prior to the commencement of the maternity, paternity, adoption or sick pay; OR

ii) The 12 months prior to the date the online application is submitted.

The reason for this is found in paragraph 16 (b) of Appendix FM-SE, which states the following:

The relevant period for calculating income from their salaried employment will be the period prior to the commencement of the maternity, paternity, adoption or sick pay or to the date of application.

If you are combining employment income with other sources of income, it is important to note that the relevant time periods for combining other sources of income, such as rental income under Category C, will generally stay the same.


STEP 2 – Note that, if there has been any periods of unpaid maternity, paternity, adoption, parental or sick leave in the 12 months prior to the date the online application is submitted, you can ignore this calculating the length of employment.

This is because this unpaid leave will not break any continuous period relating to either the income from employment or the person’s employment.


STEP 3 – If the employment is salaried, there are two tests that need to be met in order to satisfy the financial requirement under Category B alone.

TEST 1

The employed partner’s current gross annual income from employment, as stated in the most recent payslip, has to equal or exceed the minimum income threshold that applies (which is usually £18,600 but will be higher if there are dependant children applying).

Remember, since those in receipt of maternity, paternity, adoption or sick pay can choose the relevant time period, the ‘most recent payslip‘ can be either:

i) The last payslip received prior to the commencement of the maternity, paternity, adoption or sick pay; or

ii) the last payslip received prior to the submission of the online application.

In order to calculate the current gross annual income based on the most recent payslip…

i) Multiply the amount as stated in the most recent payslip by 12 (if you receive your salary every month)

ii) Multiply the amount as stated in the most recent payslip by 52 (if you receive your salary every week)


TEST 2

The employed partner’s total gross income received in the relevant time period from both current and previous employment from non-specified limited companies must be higher than the minimum income threshold that applies (£18,600+).

Remember, since those in receipt of maternity, paternity, adoption or sick pay can choose the relevant time period, the ‘relevant time period‘ can be either:

i) The 12 months prior to the commencement of the maternity, paternity, adoption or sick pay; or

ii) The 12 months prior to the submission of the online application.


STEP 4 – If the employment is non-salaried, there are also two tests that need to be met in order to satisfy the financial requirement under Category B alone.

TEST 1

The ‘annualised average’ from current non-salaried employment must be higher than the minimum income threshold that applies (£18,600+) in order to satisfy the financial requirement under Category B alone.

The question then becomes, how do you work out the ‘annualised average’ for current non-salaried employment?

This can be done in 4 steps for those who are in receipt of maternity, paternity, adoption or sick pay.

STEP 1

Remember the relevant time periods, which can be either:

i) The 12 months prior to the commencement of the maternity, paternity, adoption or sick pay; or

ii) The 12 months prior to the submission of the online application.


STEP 2

Total your gross employment income (i.e. before tax) throughout the time that the employed partner has been employed with the current employer within the relevant time period (up to a period of 12 months).

Example #1

If the current employer will have employed you for 3 months, total the gross income from this 3-month period.

Example #2

If the current employer will have employed you for 23 months, total the gross income from the 12 month relevant time period.


STEP 3

If you receive payment on a monthly basis, divide the figure that you calculated in step 1 by the number of months you have been employed by the current employer within the relevant time period.

If you receive payment on a weekly basis, divide the figure that you calculated in step 1 by the number of weeks you have been employed by the current employer within the relevant time period.

If you receive payment on a daily basis, divide the figure that you calculated in step 1 by the number of days you have been employed by the current employer within the relevant time period.


STEP 4

If you receive payment on a monthly basis, multiply the figure that you calculated in step 2 by 12.

If you receive payment on a weekly basis, multiply the figure that you calculated in step 2 by 52.

If you receive payment on a daily basis, multiply the figure that you calculated in step 2 by 365.

The figure that you reach after following these three steps will be the ‘annualised average‘ of gross annual income that can be included towards the financial requirement under part 1 of Category B.

This figure must be higher than the minimum income threshold that applies (£18,600+) in order to meet the financial requirement under Category B alone.


TEST 2

The employed partner’s total gross income received in the relevant time period from both current and previous employment from non-specified limited companies must be higher than the minimum income threshold that applies (£18,600+).


Frequently Asked Questions

What will happen if I do not submit the correct financial documents?

Your application will most likely be refused. It is unfortunate that the Home Office adopt such a strict approach regarding this.

What happens if I do not meet all of the requirements relating to maternity pay?

If you do not meet all of the maternity pay requirements, you will be unable to include that income towards the financial requirement.

When do the requirements relating to finances have to be met?

You will need to make sure that you satisfy the financial requirement when you pay the Home Office fees. This is technically known as the ‘date of application’.

Is the financial requirement the most difficult aspect of partner visas?

It is absolutely the case that the financial requirement is the most difficult partner visa requirement. This is because the Home Office adopt an incredibly strict approach to both the requirements and the required documentation.

Summary

Knowing how maternity, paternity, adoption, parental or sick leave affects your application is important.

Like many areas of the Immigration Rules, unfortunately, the biggest reason for refusals is not that employed partners who are in receipt, or have been in receipt of such leave have earned enough money, but that they do not evidence this income in the correct way.

If you would like further help in the form of:

  • Tailored document checklists; and
  • Tailored letter templates; and
  • General email support

…feel free to check out our DIY application pack service.

Spouse visa DIY Application Pack

 

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