Non-Standard Employment and the Spouse Visa Financial Requirement

The categories, and the paragraphs behind them

Home Office guidance labels the ways of meeting the financial requirement with letters. Each corresponds to a paragraph of Appendix FM-SE, and the paragraph is the thing an application is decided against.

• Category A — paragraph 13(a). Employment in the UK with the same employer for at least 6 months, paid throughout at or above the level relied on.
• Category B — paragraph 13(b) with paragraph 15. Employment held for less than 6 months, or held longer but not relied on under Category A.
• Category C — paragraph 10. Specified non-employment income: property rental, dividends and investments, interest on savings, maintenance payments, certain benefits, insurance payments, structured legal settlements, and study grants or stipends.
• Category D — the savings route. £16,000 plus 2.5 times the shortfall, held for 6 months under paragraph 11.
• Category E — pension income, evidenced under paragraph 10(e). See our pension income entry.
• Categories F and G — self-employment under paragraphs 7 and 13(e): the last full financial year, or an average of the last two. See our self-employment entry.

Hourly and variable-hours work is not automatically Category B

Paragraph 18(d) of Appendix FM-SE draws the line between two kinds of employment, and it is not the line most people expect:

"Non-salaried employment includes that paid at an hourly or other rate (and the number and/or pattern of hours required to be worked may vary), or paid an amount which varies according to the work undertaken, whereas salaried employment includes that paid at a minimum fixed rate (usually annual) and is subject usually to a contractual minimum number of hours to be worked."

The same paragraph then says non-salaried income "will be calculated on the same basis as income from salaried employment", with the evidence requirements applying "as if references to salary were references to income from non-salaried employment".

So the question is still the 6-month one. Paragraph 18(e) gives the figure for Category A in a non-salaried job: the level relied on "shall be no greater than the annual equivalent of the person's average gross monthly income from non-salaried employment in the 6 months prior to the date of application", where that employment was held throughout the period.

A zero-hours contract held with one employer for a year, averaging £2,500 a month over the last 6 months, is a Category A case at £30,000. It is not annualised from contracted hours, because there may be none.

Where the job has been held for a month or less, paragraph 18(f)(aa) uses the gross income in the period immediately before the application; where longer than a month, 18(f)(bb) uses the average gross monthly income.

Category B, and the limb people miss

Category B applies where the current employer has been held less than 6 months, or where the person is not relying on Category A. It has two parts and both must be satisfied.

1. Paragraph 13(b)(i). The gross annual salary from employment as it was at the date of application meets the figure.
2. Paragraph 15(b). The person must also meet the figure on the basis of the gross income from salaried employment in the UK or overseas earned in the 12 months before the date of application, plus specified non-employment income and pension income received in that period.

And the restriction on that second limb, at paragraph 15(b)(iv): "The person cannot combine the gross annual income at paragraph 15(b)(i)-(iii) with specified savings in order to meet the level of income required."

That is what makes a recent job change or a gap in work bite. A new job at £32,000 clears the first limb from the first day. The second limb asks what was actually earned across the whole preceding year, and savings cannot fill it.

Agency work and multiple employers

Agency work is employment like any other for these purposes. Paragraph 2(b)(iv) requires the employer's letter to state the type of employment as "permanent, fixed-term contract or agency", so the category is expressly contemplated. The evidence comes from the employer who issued the payslips — the agency — not from the end client.

Several jobs can be added together, subject to paragraph 13(k): where both the applicant's and the sponsor's employment income are relied on, all of it must be calculated under Category A or all under Category B, never a mixture. Paragraph 14 adds that where the requirement is met by the combined income of more than one person, the same money is counted only once.

Under paragraph 1(cc), the income of an applicant or sponsor working in the UK "can include income from work undertaken overseas", where the other requirements are met. Our overseas income entry covers that.

Interrupted work: leave, sickness and gaps

• Paragraph 13(i). Any period of unpaid maternity, paternity, adoption, parental or sick leave in the 12 months before the application "will not be counted towards any period relating to employment, or any period relating to income from employment".
• Paragraph 16. Where a person is receiving, or has received in the last 6 months, maternity, paternity, adoption or sick pay, the relevant date for the length-of-employment test is the date the leave began or the date of application, and the relevant period for calculating income is the period before the pay began.
• Paragraphs 5 and 6 set the documents for statutory or contractual maternity, paternity, adoption and sick pay: bank statements, payslips on the same 6-month or 12-month basis as ordinary employment, and an employer's letter confirming the length of employment, the gross annual salary and the period it was paid at that level, the entitlement to the leave, and its start and end dates.

Cash pay

The Rules deal with this directly rather than ruling it out. Paragraph 1(m): "Cash income on which the correct tax has been paid may be counted as income under this Appendix, subject to the relevant evidential requirements." Paragraph 1(n) then sets the gross-versus-net rule:

"The gross amount of any cash income may be counted where the person's specified bank statements show the net amount which relates to the gross amount shown on their payslips... Otherwise, only the net amount shown on the specified bank statements may be counted."

Paragraph 1(k) makes the same point across the whole Appendix: where the gross amount cannot be properly evidenced, the net amount is counted, including towards a gross income requirement. Paragraph 1(d) requires all income to be lawfully derived.

Savings, and the two things they cannot fix

The formula, from paragraph E-LTRP.3.1(b) of Appendix FM:

• £16,000; plus
• 2.5 times the shortfall between the income shown and the figure required.

A £2,000 shortfall therefore needs £16,000 + £5,000 = £21,000. With no income at all it is £88,500. At settlement, paragraph E-ILRP.1.3 disregards the words "2.5 times", so the same sum becomes £16,000 plus the shortfall — £45,000 with no income.

Paragraph 11 requires the money to have been held in an account in the name of the person, or the person and their partner jointly, throughout the 6 months before the date of application, with a declaration of its source. Under paragraph 1(e), savings must be held in cash.

The two bars, again, because they decide most non-standard cases:

• Paragraph 15(b)(iv): no savings alongside Category B's 12-month limb.
• Paragraph 13(f): no savings alongside self-employed income.

Help from other people

Paragraph 1(b) is strict: "Promises of third party support will not be accepted", except in the limited circumstances of paragraph 21A. Existing third-party support is accepted only in four forms:

• maintenance payments from a former partner of the applicant, or of the applicant's partner;
• income from a dependent child who has turned 18 and remains in the same UK household;
• a gift of cash savings, whose source must be declared, held for at least 6 months and under the recipient's control; and
• a maintenance grant or stipend associated with undergraduate or postgraduate study or research.

Money from a relative that is not a gift of savings meeting the 6-month rule does not count. Paragraph 1(i) adds that profit from selling a business, property, investment, bond, stocks or shares is not income, though the funds can become cash savings.

What the evidence actually is

Appendix FM-SE specifies documents rather than inviting a volume of them. For employment that is paragraph 2: payslips for the relevant period, a letter from the employer who issued them confirming four named things, and personal bank statements covering the same period showing the income paid into an account in the right name. Paragraph 2A makes the P60 and a signed contract of employment optional extras.

Paragraph 1(l) sets the freshness rule: evidence relating to a period ending with the date of application, or its most recently dated part, must be dated no earlier than 28 days before that date. Our Category A entry and financial documents entry go through the list.

Related entries

• The financial requirement
• Category B
• Self-employment
• Cash savings
• When the sponsor loses their job

Questions and answers