Zero hr contract average

Been in UK for 8 yrs. am noneu my wife is eu. First eea4 was refused as her self employment was refused. She then Went onto flexible zero hr contrct with an agency in March 2013, averaging about 17hrs/week till jan 2014. We then Got eea2 for 5 yrs again as self sufficient and got a CSI till april 2014, when my wife started a permanent job of over 24hrs/week. Just come to find out that there is a new law stating that defined eu worker should earn 153£/wk as off april 2014.
Question is, i thought an averge of 16hs per week for a zero hour contrat was acceptable for the home office, however this new law changes it all and that will throw us a year forward prior to pr application. What do you guys think can we count his zero hour employment towards our pr when we apply in 2018?

Anyone?

The minimum earnings threshold only applies to claiming benefits, although you can still claim benefits if you earn below the threshold if you can show that your work is "genuine and effective". It's probably not legal that the UK government has set a minimum earnings threshold by which an EEA citizen can automatically be considered a "worker". There is certainly EU case law that contradicts that. Only Community law can define "genuine and effective" work and not individual Member States. You should just appeal any EEA4 refusal on the basis of your wife not being a "worker", as the courts are obliged to apply Community law. The Home Office does not always follow the law, I'm afraid.

Thank you for the reply.
I take on board what you said but being burnt once woth the self employment deemed ineffective because there was no earning of 70£/week we just wanna make sure we are doing the right thing here. Hence in the new home office article they are defining a worker - regardless of claiming benefits whichh we are not interested in- as working 24£/wk or 150£/wk to be considered genuine. You are saying the community law contradicts that, it is the UKBA case workers who decide in the end and we just dont wanna be jn vagueness with them, we want to get eea4 with no questions asked.
By the way would you be able to share the community law citing re workers? Thanks again.

As I said before, the Minimum Earnings Threshold is solely a Department of Works & Pensions administrative practice, meaning that it is applicable only to the claiming of benefits. It is NOT Home Office guidance for the processing of EEA visas and residence cards as far as I am aware; it is certainly not EEA (Immigration) Regulations in any case.

By the way, the Home Office do not get to make the final decision on whether non-EEA family members get an EEA visa or residence card; the courts do BUT only if you appeal. That is why you should always appeal if you believe a decision is wrong. Immigration judges are obliged to apply Community law, whereas Home Office caseworkers seem to be able to get away with doing whatever they like.

As regards to EU case laws on what constitutes genuine and effective work, there are plenty out there, too numerous to list. A few come to mind: Case 53/81 Levin which says that earnings below the minimum required for subsistence does not prevent a person from being considered a worker as long as his work is genuine and effective. Case C-444/93 Megner and Scheffel which says that 10 hours of work a week does not prevent a person from being regarded as a worker. Case C-268/99 Jany which says that a similar test for genuine and effectiveness is applicable to self-employment.

Thank you. So from what i gather it doesnt matter how many hours you do as long as you get a salary?

To be classed as a "worker", you do have to get some form of remuneration but this does not have to be cash; it could be an alternative form of payment such as board and lodgings. It is not so much about hours or remuneration but whether you are doing "genuine and effective" work i.e. work that is not marginal and ancillary. Note this is not strictly defined in EU case law, lthough there are a several EU case laws that provide some guidelines. For example, Case C-14/09 Genc which says a low number of hours (in Genc's case, 5.5 hours per week) does not necessarily preclude someone from being considered a "worker" because other factors should be taken into consideration to make an assessment:

"The overall assessment of Ms Genc’s employment relationship makes it necessary to take into account factors relating not only to the number of working hours and the level of remuneration but also to the right to 28 days of paid leave, to the continued payment of wages in the event of sickness, and to a contract of employment which is subject to the relevant collective agreement, in conjunction with the fact that her contractual relationship with the same undertaking has lasted for almost four years.

28 Those factors are capable of constituting an indication that the professional activity in question is real and genuine.

In the uk since 2007. First PR refused as self employed as not enough evidence, we got a CSI from AXA, sent eea1&2 again and got it.
Now my Eea wife been emplyed for the last 2 years earning more than the MET and we dont claim any benefits, however we are finding it difficult to keep up with kids work and family hence my wife is thinking of home as self sufficient.
We are a bit hesitant as we know that bwing employed is the safest option especially these days with EU in/out around the corner.
I have heard that the UKBA is a bit picky when it comes to CSI but in case my wife seizes employment and goes for the same CSI we had initially, do you think there will be any danger in that? Not other documentatio / requirements issues otherwise. Thanks a lot.

Come on guys anyone please?

Come on guys anyone please?

nemerkh wrote:In the uk since 2007. First PR refused as self employed as not enough evidence, we got a CSI from AXA, sent eea1&2 again and got it.
Now my Eea wife been emplyed for the last 2 years earning more than the MET and we dont claim any benefits, however we are finding it difficult to keep up with kids work and family hence my wife is thinking of home as self sufficient.
We are a bit hesitant as we know that bwing employed is the safest option especially these days with EU in/out around the corner.
I have heard that the UKBA is a bit picky when it comes to CSI but in case my wife seizes employment and goes for the same CSI we had initially, do you think there will be any danger in that? Not other documentatio / requirements issues otherwise. Thanks a lot.

If you have had a CSI policy that HO has accepted previously then they should be 'happy' to accept such a policy again.

In addition a self-sufficient person must not be a burden on the social assistance system of the state.
See http://www.eearegulations.co.uk/Latest/ByPage/part1_4

You can dig into the question of self-sufficient resources via this HO guidance:
https://www.gov.uk/government/uploads/s ... s_v3_0.pdf
- see page 37 onwards.

Essentially a self-sufficient person needs evidence to show they have enough resources to cover their essential outgoings.

I see. We havent got any kind of benefits, not a burden to society, a shared bank account and in turn my wife has got access to more than sifficient funds to live in the UK.

nemerkh wrote:I see. We havent got any kind of benefits, not a burden to society, a shared bank account and in turn my wife has got access to more than sufficient funds to live in the UK.

In that case, exercising treaty rights as a qualified person in 'self-sufficient' category appears to be a viable option for your wife.
Note all family dependents need to be covered by CSI too.

However, be careful if the funds are coming from a dependent who then retains residency due to EEA national's self-sufficiency (which is based on those same funds).
Not sure if that sort of circular dependency is permitted.

Thanks.
That the only way we could have funds. I work (noneea) and shared bank account she benefits from the funds. We got our 2nd eea1/2 on this basis.