ILR 10 years basis - issue with employment

[saira1983]

Hello all

I am new here and have found the info on this forum very helpful. However, could not find a case similar to mine, hence asking for advice.

The problem in my 10 year history is the period I was on work permit, as explained below. The time line is:

May 2005: Arrived in the UK on student visa
May 2005 - Sep 2006: Student visa
Oct 2006 - Oct 2011: Work permit [see issue below]
Sep 11: Married to my EU national husband
Nov 11 to date: EU residence card issued

At my work permit employment, everything was going fine until around late 2010, when my employer stopped giving me my payslips, and started paying my salary late. I didn't know the reason then, but now know they were in financial difficulties (they have gone bust now), and were trying to hide their PAYE liabilities to HMRC. When I was not given my P60 in April 2011, I verbally threatened to report them to Home Office (as I was their sponsored employee), but did not actually do anything, as at that time, I knew I was soon going to change my status as EU family member.

In Sep 2011, I married an EU national, and resigned from the job in Oct 2011 (when my 5 years on WP had completed). The company went into liquidation in mid 2012, and does not exist anymore.

After my marriage, to apply for a mortgage, I asked HMRC for 5 years employment history. According to that, there was no record of me working in 2010 and 2011. As explained above, it transpired that the employer was not submitting proper P60 / P35 returns to HMRC for these years.

I completed 10 years residence in May 2015. Suspicious of the above issue, and after reading some useful info on this forum, I requested SAR from Home Office. I was surprised to see on SAR that in April 2011 (which is when I threatened to report my employer to HO), they had written to HO that I had left my employment with them. In summary, SAR notes dated Aug 2011 say "letter received from Employer that the migrant has left the job. Curtailment not pursued, as less than 6 months leave remaining".

My question is: If I book the premium service appointment for ILR on 10 years basis, I will definitely be asked about the above issue, and I can explain all above. But the company does not exist any more, and I don't have any proof that I didn't quit my job there. Will the case worker believe me ? Its basically my word against my ex-employers'.

[RRSB2012]

Were they paying your salary via Bank transfers to your bank account? If that's the case, then you can easily prove that you were working for them and were paid salaries from that Company

[secret.simon]

You actually have a much bigger issue than just the employment history.

There are two broad pathways to settlement status in the UK; the UK Immigration Rules leading to ILR or the EEA regulations leading to PR. You can not mix and match between the two.

By becoming the direct family member of an EEA citizen exercising his freedom of movement in the UK, you are ineligible for any application under the UK Immigration Rules (See Section 5 of the Immigration Rules) and hence are ineligible for ILR.

5.Save where expressly indicated, these Rules do not apply to those persons who are entitled to enter or remain in the United Kingdom by virtue of the provisions of the 2006 EEA Regulations. But any person who is not entitled to rely on the provisions of those Regulations is covered by these Rules.

The only option for you to attain settled status is by PR under the EEA Regulations. As you became a direct family member of an EEA citizen in September 2011, you will automatically acquire PR in September 2016, provided your EEA spouse, not you, has been either exercising treaty rights or held PR himself for the past five years.

So, in a sense,your query about your work history is moot as it is your EEA spouse's work history that matters, not yours.

[saira1983]

@s.s: Thanks for your advice.
But on this very forum, I have seen situations where people have had their time as EU family member counted for ILR, under the following guidance (page 30).
https://www.gov.uk/government/uploads/s ... .0_EXT.pdf

During the time spent in the UK under the provisions of the EEA regulations, the individuals are not subject to immigration control, and would not be required to have leave to enter or leave to remain. For more information, see related link: 05 Residence card applications.
However, you must apply discretion and count time spent in the UK as lawful residence for an EU or EEA national or their family members exercising their treaty rights to reside in the UK.

Has this guidance now been superseded by the Immigration Rules you have pointed out ?

[saira1983]

Were they paying your salary via Bank transfers to your bank account? If that's the case, then you can easily prove that you were working for them and were paid salaries from that Company

No, in trying to delay the payment as much as possible, they were paying my by post dated cheques. I already thought about it though.

[saira1983]

@Settled Status Even on the form SET (LR) version 11/2015, there is a section (D14 on page 14) for details of time spent as a family member of EEA national.
Please let me know your advice.

[vinny]

After my marriage, to apply for a mortgage, I asked HMRC for 5 years employment history. According to that, there was no record of me working in 2010 and 2011. As explained above, it transpired that the employer was not submitting proper P60 / P35 returns to HMRC for these years.

...

My question is: If I book the premium service appointment for ILR on 10 years basis, I will definitely be asked about the above issue, and I can explain all above. But the company does not exist any more, and I don't have any proof that I didn't quit my job there. Will the case worker believe me ? Its basically my word against my ex-employers'.

They may refuse to grant ILR if you didn't pay the appropriate taxes for the period that you are claiming to be in employment.

[RRSB2012]

Saira,

I am not an expert on immigration and Tax but on proving employment, if your employer had paid you via Cheques, you can still prove employment. As far as it was a cheque crossed in your name, that would mean that funds got transferred from their bank account to your bank account. But yes it will be a bit if battle since it dates back around 5 years.
Cheers
R

[saira1983]

Saira,

I am not an expert on immigration and Tax but on proving employment, if your employer had paid you via Cheques, you can still prove employment. As far as it was a cheque crossed in your name, that would mean that funds got transferred from their bank account to your bank account. But yes it will be a bit if battle since it dates back around 5 years.
Cheers
R

Fair enough ! But if I can't prove I was working, HMRC can't prove either that I was not working. I am claiming that employer was "dodgy" and the correspondence from them that I had left is not true.
So what would be the eventual outcome in this case, in your opinion.