EAA 3 maternity break(1 year)

Great forum. I am an EEA citizen married to a non-EEA .
My husband has already PR (with his previous marriage) and now British citizen.I would like as well to naturalise but before I have to confirm pr to make it easier.
I live and work in the uk since sept 2006:
-sept 2006-febr 2010 employed with A (part time)
-febr 2010- jan 2011 pregnant and cared for baby I was not entitled for SMP low earning but got maternity allowance.
-jan 2011-nov 2011 employed with A (part time)
My question is does the fact that I did not work for a year costs me the right for PR ?
Does it reset the clock for my residence or can I work another year working and apply?
Can't I rely on my husbands earning for that period knowing that my husband had PR already at that time?
Thank you all for your time.

You should be fine, the period of maternity does not result in loss of your status as a worker, provided you were on properly documented maternity leave, which i believe is the case. You do not require your husband's assistance.

Thanks for the reply. What kind of documents?
I have a maternity certificate,maternity allowance decision is it enough?I was not entitled to SMP from my employer as my income was too low
I stopped working 6 month before I gave birth because it was too hard for me.thanks

The question is whether you were on maternity leave from your employer. This means that you are still their employee during the time you were off to have your baby, and therefore still a "worker" for EEA regulations purposes.

Is this what you did? In which case, no problem at all and it seems you acquired PR in September 2011.

However, if you were off from 6 months before the birth, then it sounds like there is a possibility that you were not on maternity leave. You would have been legally entitled to statutory maternity leave starting up to 11 weeks before the week of your expected due date. Or your employer could have arranged for you to start maternity leave early.

But if you actually terminated your contract and then began a new one when you went back to your employer in January 2011, then you would technically not have retained your "worker" status. To rely on your husband's earnings you would need to show you had sickness insurance during that time as a "self-sufficient" person.

Thanks kitty for your explanations.
It looks like I cannot have pr.I did not have comprehensive sickness insurance for that break .
Does it reset the clock?Do i have to work 5 more years to be able to apply for pr then BC?
My husband is british now can I apply for leave to remain then ILR after 2 years?
Had I known this before I would have taken that stupid CSI.My husband was on full employment and had PR but he is a non- EEA otherwise I could have relied surely on his status .It is not fair.
Non-EEA with PR status should be considered as EEA citizen But Hey what do I know?
Thanks

Thanks kitty for pointing that out. I assumed she had a contract of employment because
she stated she went to the same employer after her maternity leave.

I think community law or the UK's interpretatiom of it is flawed in that respect, because it makes provision for people who are temporarily unable to work due to illness, it also makes provision for an absence for 12 months due to pregnancy or child birth, which does not affect continuity of residency. How it does not make provision in cases where the person stopped work for child rearing purpose but stayed in the host state for a period of a year or under is beyond me.

I believe OP's situation can be assimilated with that of someone who is temporarily unable to work due to illness, or someone who left the memberstate for a year after the birth of their child, or pregnancy related reasons.

UKBA confirms in response to a FOI request that EEA women need to be self-sufficient if they take time not covered by their employer's maternity leave:

If an EU citizen has left her her job due to pregnancy or quits after
the birth of a child in order to become a full time carer then she is no
longer classed as a qualified person under the definition of 'worker' as
defined by the Immigration (European Economic Area) Regulations 2006.
This is because she will not be actively seeking work. However, she may
be in a position to be regarded as a qualified person on the basis of
self-sufficiency as long as evidence of self-sufficiency can be provided
as detailed on regulation 4(1)(c).

A woman who has stopped work temporarily because of pregnancy or
childbirth will continue to be classed as a worker as along as she
remains subject to a contract of employment.

Thanks Directive for the link.

I am aware of the interpretation of the law, as explained in the FOI request, but i believe if this matter is brought to CJEU, then their interpretation may be different from that of the UK.

The fact that community law makes special provision in regards to continuity of residence for people bringing up new borns or pregnant, in my view, means the right of residence for this people cannot be broken due to them stopping work to bring up their baby.

People in OP's situation can simply apply and say they were not in the UK during the period of their leave, and they will then not be required to show they are qualified persons during these period in question. They cannot be asked to prove negative, ie
they were not in UK during this period.

Community law also states that there should be no discrimination between frontier, seasonal or workers who carry out thier activity of providing service.

If for example a contracted worker is able to maintain their status as a worker, then why should it not be the same for a worker who works for an agency, who stops work due to the arrival of her new born, until she is available again.

This seems discriminatory and unfair, especially when the person intended to work and the only reason for not doing so is because of their child.

The UKBA's manual states that every decision has to take the best interest of the child into account.

Is it in the best interest of a child for their mother to start her agency job immediately after giving birth, or should a heavily pregnant woman be working or else loose her status or break her residence

I fully agree with Obie's position.

However, Hydron seems overly worried and anxious about having to wait longer for PR than she anticipated. As her husband is a British Citizen, the child is also, and so she has no dependents who derive their right of residence from her. And for an EEA national there are almost no practical benefits in acquiring PR or BC. She may of course have her own reasons to achieve this, but she will not face any restrictions in her daily life because of this (unexpected) delay.

I also agree perfectly with Obie.

But I think the requirement for keeping the child's best interests in mind will not be considered relevant by UKBA. They would say they are simply evaluating a particular PRC application. The child's best interests, they would say, were considered by the parents at the historical time of the work/nowork decision by the parents. The child will not be (directly) impacted by the PRC decision, they would likely claim.

Directive/2004/38/EC wrote:The child will not be (directly) impacted by the PRC decision, they would likely claim.

... which I think would be a very reasonable claim in most cases, as a PRC decision has normally no direct consequences with respect to right of residence, access to the job market, healthcare, and so on.

Thank you all for your inputs.I still do not have answers to my questions though.
I have also a child whom attend school and I read this:
http://eur-lex.europa.eu/LexUriServ/Lex ... 480:EN:NOT
Can it help me ?

Is getting confirmation of PR very important for you to do right now? Is there anything you presently can not do that you need to?

From the OP:

Hydron wrote:I would like as well to naturalise but before I have to confirm pr to make it easier.

Effectively, your clock has reset. So you started your 5 years from January 2011. You can go via the UK spouse route (2 years) + ILR but that is costly (about £1500 for the whole ride).

Hydron,

As far as I understand you have not yet applied for a PR card. You might want to apply and see if it gets approved. There is not much of a downside...

Good advice. Worth trying.

Also - have you got some kind of private health insurance for the maternity break period or a EHIC card (non UK one) to cover the period - that would allow you to claim self-sufficient for that period.
or have you been away from the UK for a large portion of that year? You don't need to exercise treaty rights if you are not in the UK.

Jambo wrote:You don't need to exercise treaty rights if you are not in the UK.

Worth discussing, but maybe in a separate thread.

Directive/ wrote:
Is getting confirmation of PR very important for you to do right now? Is there anything you presently can not do that you need to?

Well not everybody naturalises only for the benefit of the visa free travel or any other privileges.
Anyway thank you again for your time but has anybody read the link I provided and explain to me why it would not apply to me?
Particularily this conclusions:

1. A national of a Member State who was employed in another Member State in which his or her child is in education can, in circumstances such as those of the main proceedings, claim, in the capacity of primary carer for that child, a right of residence in the host Member State on the sole basis of Article 12 of Regulation (EEC) No 1612/68 of the Council of 15 October 1968
on freedom of movement for workers within the Community, as amended by Council Regulation (EEC) No 2434/92 of 27 July 1992, without being required.
to satisfy the conditions laid down in Directive 2004/38/EC of the European
Parliament and of the Council of 29 April 2004 on the right of citizens of the
Union and their family members to move and reside freely within the
territory of the Member States amending Regulation No 1612/68 and
repealing Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC,
75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC.
2. The right of residence in the host Member State of the parent who is the primary carer of a child exercising the right to pursue his or her education in accordance with Article 12 of Regulation No 1612/68 is not conditional on that parent having sufficient resources not to become a burden on the social assistance system of that Member State during the period of residence and having comprehensive sickness insurance cover there.
3. The right of residence in the host Member State of the parent who is the primary carer for a child of a migrant worker, where that child is in education in that State, is not conditional on one of the child’s parents having worked as a migrant worker in that Member State on the date on which the child started in education.
4. The right of residence in the host Member State of the parent who is the primary carer for a child of a migrant worker, where that child is in education in that State, ends when the child reaches the age of majority, unless the child continues to need the presence and care of that parent in order to be able to pursue and complete his or her education.

Thank you again

I have read through the link, but I think it is better for you to explain why you think it is important. Is this relevant to you being able to do or not do something?

Directive/2004/38/EC wrote:I have read through the link, but I think it is better for you to explain why you think it is important. Is this relevant to you being able to do or not do something?

in what way my reasons for wanting to be a british citizen are relevant the subject of this topic?and why should it be that something is wanted behind it?
You are asking me to explain ?There is nothing to explain.I have given all details in my first post but if it can appease your curiosity I need BC as I might want to become the next prime minister .
If you only post to question my intentions or my reasons please leave other members give their opinion and spare me your interogations.
thanks.
Please if anybody else has any comment on my posts do not hesitate.
thanks

Hydron wrote:in what way my reasons for wanting to be a british citizen are relevant the subject of this topic?and why should it be that something is wanted behind it?
You are asking me to explain ?There is nothing to explain.I have given all details in my first post but if it can appease your curiosity I need BC as I might want to become the next prime minister .

I was curious of your reasons for wanting to be British. If citizenship is not possible right now, then there might be other ways to achieve those goals.

I can fully understand the desire to be a British citizen (though you may not be of suitable character is you genuinely want to be Prime Minister :) ).

Hydron wrote:If you only post to question my intentions or my reasons please leave other members give their opinion and spare me your interrogations.

I should be very clear that I do not understand what you are trying to do. So I ask questions to try to tease it out.

For instance, I do not understand your posted link to ECJ Case C‑480/08? Is this relevant to your case for PR? If so, please explain your thinking.

i

Directive/2004/38/EC wrote:

Hydron wrote:in what way my reasons for wanting to be a british citizen are relevant the subject of this topic?and why should it be that something is wanted behind it?
You are asking me to explain ?There is nothing to explain.I have given all details in my first post but if it can appease your curiosity I need BC as I might want to become the next prime minister .

I was curious of your reasons for wanting to be British. If citizenship is not possible right now, then there might be other ways to achieve those goals.

I can fully understand the desire to be a British citizen (though you may not be of suitable character is you genuinely want to be Prime Minister ).

Hydron wrote:If you only post to question my intentions or my reasons please leave other members give their opinion and spare me your interrogations.

I should be very clear that I do not understand what you are trying to do. So I ask questions to try to tease it out.

For instance, I do not understand your posted link to ECJ Case C‑480/08? Is this relevant to your case for PR? If so, please explain your thinking.

please stop being judgemental and now questioning my charactere .it is becoming too personal.you don t even know me.
as for the relevance to the link I provided if you had read it seriously you would have undersood exactly what I was trying to point out:
specificaly paragraph 2:
The fact that I had a break for maternity and not working being selfsufficient(hubands earning) without comprehensive sickness insurance does not reset the clock for my residence (JAMBO QUOTE)To the contrary I believe that I might retain that resident status because I had a child in full time education while I was still a worker and in that case I would be entitled to PR here ence the relevance.then Bc.As for being Pm I was only being sarcastic due to your noisy question.
Being british would open to me few opportunities that I am sure if you put some effort of reflection you could find.
regards
I only wanted to know if I was getting right the implications of this cases or I was out of subject.

Ok, to be very clear, I made a (possibly not clear or funny enough) joke about character and being prime minister. It is generally related to the joke about not wanting to be a member of any club that would have me as a member.

Being british would open to me few opportunities that I am sure if you put some effort of reflection you could find.

The main thing is that you want to do it. Whether I see the specific external benefits or not is not particularly important. A lot of the benefit is feeling British... And good for you! Go for it!

2. The right of residence in the host Member State of the parent who is the primary carer of a child exercising the right to pursue his or her education in accordance with Article 12 of Regulation No 1612/68 is not conditional on that parent having sufficient resources not to become a burden on the social assistance system of that Member State during the period of residence and having comprehensive sickness insurance cover there.

If I understand correctly, you are wondering if this is equivalent to saying that any time you have your children in education in the UK counts towards PR.

I am not sure. It clearly says you have a "right of residence", but whether that counts towards the required 5 years towards PR may be a separate issue.

PR is acquired after 5 years of lawfull residence in the member state. Now if residence under Article 12 of Regulation 1612/68 and not 2004/38 would count for PR would probably involve seeing a judge. I would doubt the HO would agree with your view when examinimg your application but you can try and appeal if get rejected.

Thanks for your inputs