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James Mather
James Mather,
Category: Immigration Law
Satisfied Customers: 0
Experience:  Senior Partner at Berkson Wallace
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My husband is Australian and has been living with me in the

Customer Question

Hi, My husband is Australian and has been living with me in the UK since 2013.His first visa was a youth mobility visa and he is just nearing the end of his first Family Visa and was on a 5 year route. We have to apply for the next and a half years by 31st December when his current visa expires.My husband has been working in the UK for 4 and a half years now, but became classed as self employed in February 2017 when he started contracting for HSBC. He has earned well over double the financial requirement since February, but looking at the requirements, he has to have been in self employment for a full year and have filed a tax return before he is eligible for the visa, which is ridiculous as he has consistently earned well above the requirement for years. Please advise if there is a way around this or another way to meet the financial requirement. Thanks
Assistant: Where are you located? It matters because laws vary by location.
Customer: Edinburgh, Scotland
Assistant: Has anything been filed or reported?
Customer: No
Assistant: Anything else you want the solicitor to know before I connect you?
Customer: No
Submitted: 1 month ago.
Category: Immigration Law
Customer: replied 1 month ago.
To add some extra background info...my husband has around £60,000 tied up in Australian shares that we would be able to sell if neccessary. Also he receives dividends from these shares which we could add as income, although per year probably doesn't exceed more than AU$5000-10000 so not enough to fulfil the income requirements alone. So as we seem to be totally unable to use his income from self employment as evidence of financial requirement due to him not being self employed for a full year, are we able to prove income from either a combination of australian shares/dividends from shares, or just from selling australian shares to make up the cash savings the visa requires?
Expert:  frantzgregory replied 1 month ago.

The financial requirement needs to be met by you as the British sponsor and not your husband I am afraid.

Customer: replied 1 month ago.
All supporting documents and the application process make it clear that the financial requirement can be met by either of us as it is a household requirement. This does not offer any clarity on our situation...
Customer: replied 1 month ago.
To add to that, he is currently on his first two and a half year visa of the 5 year route and to obtain that visa, the financial requirement was met by his employment at the time, not mine.
Expert:  frantzgregory replied 1 month ago.

Yes on the second stage of the application both the applicant and sponsor can combine incomes. So if you have sufficient income then there is no need to use your husband income if this will cause an issue. But generally the income should be from the sponsor

Customer: replied 1 month ago.
I am pregnant and not working at the moment so i do not fill the financial requirements, therefore any financial requirement would be filled by him. My query is not on who needs to fulfil the financial requirements, but rather a way around our predicament. My husband has earned over £28000 after tax already in his self employment, from February to November this year. Yet we are unable to use this as proof of income because he has not yet been self employed for a full year. So, if that is not an accepted form of income, we also have the shares which at a last resort we could sell to make up the £62,500 cash savings if we absolutely have to, but it seems pretty outrageous that since my husband has been in the UK, he has always worked full time and has always earned well above the financial requirements and we are therefore reluctant to sell his shares. His current visa expires on 31st December and we are expecting a baby soon so we really do need him to be able to stay in the country! Is there such a thing as a ten year route we can go down?
Expert:  frantzgregory replied 1 month ago.

In order to understand your circumstances we needed to know why you were insisting on your husband's income. I cannot help you without knowing the full context.

Expert:  frantzgregory replied 1 month ago.

Give me a minute to read the context you have now provided.

Customer: replied 1 month ago.
I am pregnant and ill and do not have employment, so the only income we have is my husband's income. We cannot rely on any other income as my husband supports us both.
Expert:  frantzgregory replied 1 month ago.

When does his visa expire?

Customer: replied 1 month ago.
31st December
Expert:  frantzgregory replied 1 month ago.

It is not pretty outrageous at all as the rule is clear and you would have been made aware of this before now. The timing for your husband going self employed was wrong which now has a knock on effect on his visa due date. Due consideration was not given for whatever reasons so you really cant begin to blame the rules. 31 December 2017 is last minute for you and your husband to begin considering his immigration requirements. You cannot use cash savings if you havent had cash savings for at least 6 months. It is really a bit too late now to plan. All he can do is present all the necessary documents to show his self employment income and previous salaried income. If application is refused he should appeal. Otherwise a bit too late.

Customer: replied 1 month ago.
Actually we were advised from the visa office months ago not to start his application until three weeks before his current visa expires, as I wanted to fill in the application form around a year ago. Therefore we have not been made aware of this until now, and quite frankly because we more than adequately meet the financial requirements, I would not have thought it would be an issue. Surely it makes sense that he would qualify more financially than somebody barely making it over the financial threshold and that is why I believe the visa rules are outrageous, along with many familes who have been refused visas for the same grounds. It wouldn't be such an uproar and in the papers all the time in the UK if it wasn't outrageous. Also, from the extensive reading I have done on this, it actually would be possible to sell his shares and use them as cash savings. If you refer to the relevant Appendix, this is made clear that if the cash savings are coming from stocks or shares that they do not have to have been in cash form for the 6 months and can have been withdrawn into cash at any point within that 6 months, as long as they have been under the name of the applicant for a minimum of 6 months, that is why it seemed to be the best option from my point of view. My husband is a Financial Crime Analyst and contracts for HSBC, and it is the nature of the employment that often these roles are self employed and on a contractor basis, therefore him going self employed was unavoidable. My question was more based around the best way to approach this, whether to sell the shares or to present all evidence of income, including letters from his accountants, and hope that we would still be considered for approval, or if there was another visa route we could look at, and not for advice on information that is readily available on the Gov website. We have considered going through an Immigration Lawyer. Would you recommend this or would that be a pointless expense? My husband was on a Youth Mobility visa from 2013-2015, so on the first application we did for his Family visa, we had used his income and went through the same day decision Premium service. Would using this service again allow us to fight our case or again is that a pointless expense? We've found it extremely difficult to find helpful advise on what to do in this situation and that is why we've came to Just Answer in the first place.
Expert:  frantzgregory replied 1 month ago.

Yes that is correct not to submit an application 28 days before BUT this does not preclude planning against an application. Yes but you have come too late to justanswer and too late for face to face legal advice.

Customer: replied 1 month ago.
I understand that but I'm not sure why you responded to my question when I had stated in the initial question that the deadline was 31st December if, as you say, we've came too late to justanswer and you therefore knew you would not be able to offer any useful advice. Obviously there are visa rules, but also not every case is straightforward and not every family and income are the same and can fit into boxes. Fortunately, we have an appointment with a local MP tomorrow afternoon who will hopefully be able to help and advise. Thanks for your responses.
Expert:  frantzgregory replied 1 month ago.

I cannot make assumptions about any case until I have had the full context. Your initial context was missing a vital fact, which is you being the sponsor was unemployed and instead of looking at ways the law would support your case rather than suggesting the law as being outrageous. Your MP cannot provide you with any useful legal material on your case you should instead visit a face to face solicitor to make this application for you who would be prepared to challenge in an appeal should it become necessary. Good luck.

Customer: replied 1 month ago.
I think I'm entilted to my opinion on British laws, as every British citizen is. You actually had made the assumption that I was employed in the first place and also just told me that it was too late for face to face legal advise but I will follow your new advise and visit a solicitor. Thank you.
Expert:  frantzgregory replied 1 month ago.

Yes everyone is entitled to their own opinion on the laws of the land but unless they are legally trained and qualified their opinion is uninformed I am afraid.

Customer: replied 1 month ago.
I'm not sure how to shut down this question now as I clearly don't require any more unhelpful responses and there seems to be no option to end the conversation.
Expert:  frantzgregory replied 1 month ago.

Dont worry I will end it from there. Good luck