245HF. Requirements for indefinite leave to remain
...
(d) The Sponsor that issued the Certificate of Sponsorship that led to the applicant's last grant of leave must:
(i) still hold, or have applied for a renewal of, a Tier 2 Sponsor licence in the relevant category; and
(ii) certify in writing that:
(1) he still requires the applicant for the employment in question, and
(2) in the case of a Tier 2 (General) Migrant applying for settlement, the applicant is paid at or above the appropriate rate for the job as stated in the Codes of Practice in Appendix J, or where the applicant is not paid at that rate only due to maternity, paternity or adoption leave, the date that leave started and that the applicant was paid at the appropriate rate immediately before the leave.
(e) The applicant provides the specified documents in paragraph 245HF-SD to evidence the sponsor's certification in subsection (d)(ii) and to evidence the reason for the absences set out in paragraph 245AAA.
....
245HF-SD Specified documents
The specified documents referred to in paragraph 245HF(e) are set out in A, B and C below:
A.Either a payslip and a personal bank or building society statement, or a payslip and a building society pass book.
(a) Payslips must be:
(i) the applicant's most recent payslip,
(ii) dated no earlier than one calendar month before the date of the application, and
(iii) either:
(1) an original payslip,
(2) on company-headed paper, or.....
Above is an extract from the relevant rules for Tier 2 ILR applications (except ICT).
For the time being at least, the rules do not seem specifically to state the £35,000 requirement, merely the 'appropriate rate as stated in the Codes of Practice'.
These rules are valid for ILR applications made under Tier 2 on today's date. For such applications, my first post in this thread applies. The evidence you need to provide is your most recent payslip, to show you are being paid at the appropriate rate (i.e. the experienced rate).
However, in February 2012 the new 35000 threshold, to apply as of 6 April 2016, was set out in the government's Statement of Intent (
https://www.gov.uk/government/uploads/s ... as-soi.pdf). According to the Statement, its contents were supposed to be.
What confuses me is that, as you can see from the Rules I cited, there is nothing at all about the £35,000 requirement yet. Hopefully someone can clarify for me, but either this new threshold will only come into the Rules from 6 April 2016, and by which time they will have been updated, or the threshold idea was scrapped, which is why it is not in there. Knowing the government, I imagine it is probably the former.
If so, then I guess we will only really know the definitive answer to your original question once the Rules and Guidance have been updated to include the £35,000 threshold and to explain how this will operate in practice.
The extract I have cited, which is currently in force, may give a hint, insofar as it requires evidence for the most recent salary payment (i.e. within 31 days prior to the application).
However, the problem we have here is that the rate required for ILR is the same rate (subject to the annual increments in the Code) which would have been required for the ILR applicant's last CoS (i.e. the experience rate found in the Codes). And so there is currently no way I can see for an applicant (who is eligible for ILR after 5 years on Tier 2) to be paid less than the experienced rate in the Code, or he/she would not have met the salary rate when the CoS was assigned.
The changes that (I'm still assuming) will come as of 6 April 2016 introduce a new problem which doesn't appear to have existed up till now. Your question touches on this exact point, because as of 2016 there will now be a potential discrepancy between the experienced rate in the Codes and the new £35,000 threshold!
So, as you say, you can be paid the correct experienced rate when you gat your CoS, and yet not meet the threshold when you come to apply for ILR later on.
All of which waffling leads me to think that the most likely outcome is that you will need to be paid at least 35,000
at the time you make your application. By analogy with the current rules, you will have to produce your latest payslip to prove this. If this is the case, you only have to be paid at 35000 a year for the month prior to your ILR application.
But, one caveat, there may have been a reason that these changes were planned so far in advance. This may be have been to give people enough time to plan ahead, and make sure their final CoS before applying for ILR meets the £35,000 requirement. This would not surprise me.
So, to sum up, and to apologise for all this unnecessary and confusing text I have written, I think the real answer may be that we just don't know yet!
I'd be interested if anyone could confirm why these changes are not in the Rules yet. Is it simply delayed due to their not being applicable until April 2016?
Sorry, I hope that was an answer, well, sort of an answer to your question
Good luck anyway!
