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Hello,

I currently hold an EEA2 residence card as the spouse of a EEA National (Irish) who also holds British Citizenship. My EEA2 residence card was granted on the basis of my spouse falling into the 'self employed' category in terms of extercising a treaty right.

Thinking ahead when applying for my permanent residence, the EEA 4 application form states that I would need to submit evidence of my EEA family member has both currently and continuously exercising a treaty right over the past 5 years qualifying period for permanent residence.

Due to the recession and nature of self employment, my EEA spouse would have had a couple of months where he has been seeking work. There would be some gaps during thie 5 year qualifying period for EEA 4 permanent residence. I on the other hand would, during the 5 year period, would have been in continuous employment - exercising a treaty right which extends to me by virtue of our marriage. I am not self employed and would be able to proove this my payslips etc.

My question is I wondered if these gaps for my EEA spouse would have any bearings on my EEA 4 application albeit that I (the non-EEA national) would have had been in continuous employment during the 5 year qualifying period.

Thanks,
Pasha

Hi Pasha,
As I understand it, the rules at the moment are that the EEA citizen (who is the one exercising Treaty rights) has to be exercising them continuously with no gaps. You have no Treaty rights to exercise being the non-EEA family member, so I'm afraid it is irrelevant that you will have been working for the whole 5 years with no gaps.
However, have a look at the Eind ruling. This is exciting because the ECJ ruled that if an EEA citizen returned to his own state, (after having worked in another of the member states) he could live there with family members even if he didn't "carry on any effective and genuine economic activities". Eind won their case in 2007, but the UK is still studying the ruling. When they've done dragging their heels, problem solved.

Hi Pasha
Although I am not an expert but I think small gaps are not a problem .
They will need tax returns for the years ur spouse was in self employment and if u provide all the supporting documents like invoices, receipts, bank statements,proof of national insurance contributions and tax payments , lease on business premises etc that would be alright.

The inland revenue send the national insurance bill and tax bills on regular basis , and one has to pay these bills accordingly . If someone`s business is going down then that is sorted out when he files the tax return of that year.


If your spouse was paying class 2 national insurance during the period when his business was down during a certain period then I assume it is ok. Class 2 NI is not income based it is liability of self employed persons to pay it while income tax & class 4 national insurance are income based and paid when someones income is above a certain threshold.

I hope u understand what I am trying to say here. Issues of self employment / business are different from employment.

Regards