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Vineet S
Vineet S,
Category: Immigration Law
Satisfied Customers: 3082
Experience:  Freelance Solicitor at Self Employed
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My partner is a doctor from Malaysia. She had a student visa

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Hi. My partner is a doctor from Malaysia. She had a student visa which was converted to Tier 2 General (leave to remain) in september 2020. For medical reasons this year she has been able to drop to 80% work load, meaning a drop in pay. We are based in Northern Ireland. Her job is on the Shortage Occupation List, code 2211. The HR department say that her salary bracket is now too low, but they are only considering her base salary. Doctors work on Basic Salary and then additional badning uplift based on nights, long shifts etc. This is guarenteed. Can we not have here total salary be used as the figure?
JA: What steps have you taken? Have you filed any paperwork with the UK government? What country do you live in? What is your citizenship?
Customer: See above
JA: Have you talked to a lawyer about the student visa?
Customer: No need
JA: Is there anything else the Lawyer should know before I connect you? Rest assured that they'll be able to help you.
Customer: No.

Welcome to Just Answer, I am a solicitor in England and Wales and I will be dealing with your case today.

Kindly note, I am not available for phone calls at the moment, however I can easily assist you via this online chat.

If a phone call is not required then please ignore phone call request pop-up, they get generated automatically without any input from the expert, so I have no control over these requests.

I will go through your question and will get back to you with my answer shortly.

Customer: replied 8 days ago.
Thank you Vineet
Some additional info. My partner is ST1 level doctor. It appears that the Northern Ireland "Going Rate" is lower than England, as per https://www.gov.uk/government/publications/national-pay-scales-for-eligible-healthcare-jobs/national-pay-scales-for-eligible-healthcare-occupation-codesFurthermore I found this in the tier2 guidance document (though it's from 2013). To me that indicates that her full monthly finances should be taken into account.78.We will consider basic pay (excluding overtime) plus any allowances (such as
London weighting) or bonuses, which would also be paid to a settled worker in similar
circumstances, provided these allowances and or bonuses are part of your guaranteed
salary package.
https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/261410/tier2-guidance.pdf

Could you please confirm if your question is regarding her visa extension?

Customer: replied 8 days ago.
No it's not a visa extension issue. She has a current valid Tier 2 General Leave to remain visa. However as she has dropped to 80% work, her HR department say that puts her in violation of her visa, dropping her under the salary requirement. However they are basing this only on her Basic salary, not her corrected salary that includes evenings and nights "Banding" pay

So, she has dropped to 80% work due to her medical reasons?

Customer: replied 8 days ago.
100% workload is too much on her. She has diagnosed condition of hypermobility joint syndrome, meaning it is very painful to work so many shifts.
Customer: replied 8 days ago.
She got sign off from the hospital to do this, and has a substantial medical file to corroborate her complaint and diagnosis, as well as receiving ongoing treatment. She is also following up with occupational health

she has protection by law against if her employer tries to take action on her because of:

a health condition that's considered a disability under the Equality Act

It does not matter how long she has worked for the employer.

It could be unlawful discrimination if an employer either:

  • unreasonably tries to pressure someone to go to work

  • unreasonably disciplines someone for not going to work

She need to raise it with their Trade union if they have one.

She has protection under the Equality act , and her employer can not any disciplinary action , if she is not able to work due to her medical condition.

Customer: replied 8 days ago.
Thank you. They aren't trying to take action against her but they are saying she will have to go to 100% work again, which she had been signed off against. They are only doing this becuase they say working 80% puts her in salary violation of her visa.
Customer: replied 8 days ago.
Does the Equality act extend to those on visas? If she was under the minimum salary requirement for her visa would that be allowed due to medical reasons?

But she is dropping work due to medical reasons, and she can share evidence of her medical condition with the employer.

Equality act extends to all employees irrespective of their immigration status.

I trust this helps.

If you need further assistance, please let me know.

In the meantime, thank you for using Just Answers. Best wishes.

Customer: replied 8 days ago.
Thanks. It's certainly a route to explore.

You are welcome. Have a good day.

Vineet S and other Immigration Law Specialists are ready to help you
Customer: replied 8 days ago.
It appears that the Equality Act 2010 does not apply in Northern Ireland. Do you have any answer as to whether we can ensure the home office consider the entire pay of my partner, rather than the basic salary amount? Basic Salary + Banding uplift puts her above the £30,000 approx required. However Basic salary alone leaves her around £27,500.

Disability Discrimination Act is the main legislation in N.I , regarding discrimination .

Regarding the Home office rules regarding salaries-

Overtime, commission-based pay and bonus will be counted as income from employment where they have been received in the 6 or 12 months prior to the date of application as applicable.

So, she would have to provide her 6 months pay slip , and the salary that is reflected in those pays lips will be taken into consideration.

Thank you.

Customer: replied 8 days ago.
OK that sounds positive. If I'm understanding you correctly, she can provide her last 6 months payslips (showing she is well above the £30,00ish limit) and now that she has dropped to 80%, if her new payslip puts her above the bracket then she should be able to continue on at 80% working time.
PS I opened a new question on the exact same topic but can't delete it.

Yes, you got it right, she would need to prove her salary by submitting her last 6 payslips.

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Thank you. Best wishes.

Customer: replied 8 days ago.
Thank you. You have confirmed our thoughts, that her HR department aren't fighting her case particularly well. We will enlist the services of a solicitor here in NI. Thanks for your advice.

My pleasure. Enjoy rest of your day.

Customer: replied 8 days ago.
You too