Whan does an EEA national cease to be employed?

[MegO]

I was married to an EEA national for 5 years but divorced him before the expiration of my 5years leave to remain as an EEA family member. I have now applied for my permanent residence card but was refused becuase they say my ex-spouse was not exercising his treaty right at the time fo divorce. I have been in employment throughout the term fo my vise and still in employment. The reason they say my ex-spouse was not excersing his treaty right is that he failed to go to work for two weeks before the decree absolute was pronounced but he was not dismissed from his employment until a week after the decree was pronounced. i have appealed but due for hearing in a couple of week. I am preparing my appeal bundle now as I can no longer afford a solicitor. Any immigration or employment law or case decision that defines when an employee ceases to be one that could be used to back my case?

[nonspecifics]

Can you repeat exactly the wording of the refusal?

You do not state the dates when the timescale is relevant.

From what I have read, YOUR MARRIAGE MUST HAVE LASTED THREE YEARS ( one in the UK) BEFORE divorce proceeding were initiated.

The EEA must have been exercising Treaty Rights at the time of the divorce proceedings being initiated.

http://www.ukba.homeoffice.gov.uk/sitec ... iew=Binary


"6.1 Retention of the right of residence following divorce or annulment of
marriage/dissolution of civil partnership


A person who ceases to be a family member of a qualified person on termination of a
marriage or civil partnership will retain a right of residence if:

• the marriage or partnership lasted for at least three years immediately before the initiation of proceedings for divorce, annulment or dissolution, and
• the parties to the marriage or civil partnership had resided in the UK for at least one year during the duration of the marriage or civil partnership"

In such circumstances a family member retains a right of residence if:

(a) S/he is a non-EEA national but is pursuing activity which would make
him/her a worker or a self-employed person if s/he were an EEA
national,
(b) S/he is a self-sufficient person, or
(c) S/he is the family member of a person in the UK who is either a worker,
self-employed, or is a self-sufficient person.

See Regulation 10(5) of the 2006 Regulations for more information.


see this page:

http://ergensharif.wordpress.com/2011/0 ... of-rights/

"Therefore, in order to qualify, the applicant must show that prior to the initiation of divorce (or annulment or termination of registered partnership), the marriage/registered partnership lasted for 3 years one of which was spent in the UK.


This is subject to Article 13.2 which provides that the applicant can show that he or she is a worker, self-employed or that he or she has sufficient resources and that they will not become a burden on the host Member State."

The burden of evidence is on you to prove the exercising of Treaty Rights for the required period of time.

Have you tried asking the Department of work and pensions or the Inland Revenue to provide confirmation of the dates your husband was regarded as in employment, as for tax/benefit purposes you were treated as a couple at the time?

Whether you as the non-EEA worked or not is irrelevant to the exercising of Treaty Rights ( whilst you were married), as your rights came from your EEA sponsor. It could be important afterwards.

This is a link about employment law:

http://www.direct.gov.uk/en/Employment/ ... G_175835[b][/b]

[nonspecifics]

If you fail to meet the required criteria by only two weeks, if I were you, I would argue the well documented case law in ECJ cases that the laws should be applied using proportionality and fairness.

I would also emphasise you have never been an unreasonable burden and to withdraw your rights over a two week failure of the EEA national to exercise Treaty Rights ( IF that is indeed the case) would be harsh and unjust.

http://eur-lex.europa.eu/LexUriServ/Lex ... 13:EN:HTML

"91 However, those limitations and conditions must be applied in compliance with the limits imposed by Community law and in accordance with the general principles of that law, in particular the principle of proportionality.

That means that national measures adopted on that subject must be necessary and appropriate to attain the objective pursued (see, to that effect, Joined Cases C-259/91, C-331/91 and C-332/91 Alluè and Others [1993] ECR I-4309, paragraph 15)."

[Directive/2004/38/EC]

The reason they say my ex-spouse was not excersing his treaty right is that he failed to go to work for two weeks before the decree absolute was pronounced but he was not dismissed from his employment until a week after the decree was pronounced.

How in the world did UKBA know about the day-to-day detail of your husband's employment? Did you tell them? Did he tell them?

What did he do after your divorce? Did he remain in the UK or leave?

[MegO]

Prior to my application, since I could not obtain any evidence of his employment from HMRC and DWP. I contacted the previous employer who wrote a letter confirming that he last attended work on the 28/4/09 and following and AWOL proceedure his employment was terminated on the 20/5/09 However, the decree absolute was dated 13/5/09. My application was refused on the grounds that he was not working at the time the decree was issued. I have argued that since his employment was not terminated until the 20/5/08 and his employer has written a letter to confirm that he was still considered an employee until he was terminated which was after the the marriage ended, he was exercising his treaty rights. I have also been in employment since my leave to remain was issued in 2005 and still in employment. does my employment status not matter with regards my application.

[nonspecifics]

When you say leave to remain, I think you mean a residence card from an EEA2 application.


I think Leave to remain is the term used for UK immigration law, not EU immigration law in the UK.

[Directive/2004/38/EC]

I have also been in employment since my leave to remain was issued in 2005 and still in employment. does my employment status not matter with regards my application.

That is good, but the key thing in whether he is working in the UK.

What has he been doing since divorce?

[nonspecifics]

2006 Regulations “Family member who has retained the right of residenceâ€

[nonspecifics]

http://www.bailii.org/uk/cases/UKUT/IAC ... syria.html

37. When considering whether a retained right of residence exists the person concerned must be the spouse of a former spouse who exercised the relevant Treaty right. The overall sense of this seems to be that in the case of a family member seeking to acquire a retained right of residence, such a person must show that the EU national remains a worker etc at the time that the right of residence is claimed to accrue (here the time of the divorce) and if so the family member (and in the case of death or divorce, former family members) has a personal right of retained residence.


38. Strictly, whether the wife was a worker is not the same as whether the wife was working at that time, as exemplified by Article 7 (3) of the Directive which provides that the status of a worker is retained if any temporary inability to work was through illness, accident, involuntary employment or relevant vocational training. This is not a relevant consideration in the present case, but it demonstrates the dangers of drawing inferences from gaps in wage slips alone.

ETC.

[nonspecifics]

At an appeal it is up to the appellant to prove their case.

Present your evidence to prove your case that you have acquired PR.

Quote the relevant legislation, provide documentary proof to corroborate your assertions that you have met the requirements of the legislation.

Back it up with case law.

If you can prove your case, it does not matter what rubbish the UKBA Home Office Presenting Officer will say to undermine your case.

[nad1983]

hi please if some can help me

i send eea2 on 3 feb

coa issue 24 feb and received 3 march

i am still waiting for my rc so when is the time start the day i send application or the day they issue coa..please help me out thanks ..

[Directive/2004/38/EC]

Prior to my application, since I could not obtain any evidence of his employment from HMRC and DWP. I contacted the previous employer who wrote a letter confirming that he last attended work on the 28/4/09 and following and AWOL proceedure his employment was terminated on the 20/5/09 However, the decree absolute was dated 13/5/09. My application was refused on the grounds that he was not working at the time the decree was issued. I have argued that since his employment was not terminated until the 20/5/08 and his employer has written a letter to confirm that he was still considered an employee until he was terminated which was after the the marriage ended, he was exercising his treaty rights. I have also been in employment since my leave to remain was issued in 2005 and still in employment. does my employment status not matter with regards my application.

Do you know when they paid your husband until? Did he have accumulated vacation time which was effectively used while he was "AWOL".

What exactly did the employer letter say?

And again, what exactly did the UKBA refusal say?

[MegO]

I was not able to obyain the information abot his holiday and last day of pay. The first employer letter says" Last working day Tuesday 22 April 2009 Dismissed through AWOL proceedure Tue 20 May 2009. Employed as a warehouse operative". the last letter says "Just to confirm that he was still classed as employed by---- until his actual termination date of 20 May 2009. Although his last working day is different to his termination date he is still classed as employed by the company. He was initally recorded as sick (after his last working day) and then unauthorised absence".
The refusal letter states "It was not considered that your ex=spouse was a qualified person at the time of divorce. the decree absolute provided illiusyrated that the time of divorce as 13 May 2009 while the employer letter stated that his last day was 22 April 2009. You have failed to provide evidence that you retained a right of residence as detailed in Regulation. Therefore, it has been decided to refuse to issue the confirmation that you seek with reference to Regulation 10(5) of the Immigration (EEA) Regulation 2006". Does this help

[nonspecifics]

( if temporarily sick you are still a worker and so exercising Treaty Rights.) any evidence?

------------

What UKBA are relying on is this:

EEA : voluntary unemployment:
"nationals who leave their employment lose their worker status but
can have jobseeker status if they apply for JSA and can show that
they are seeking work and have a genuine chance of being
employed. "

G2v2010 Annex 1.doc

So you need to prove he did not leave his employment when he last attended work. They are two different things and two different dates.

If he did not say: Stick your job, I quit! Then he did not voluntarily resign. He was not sacked immediately on the day he stopped attending work either.

Can you obtain a copy of a contract of employment from that firm?
Maybe it states how employment is ended?

The company clearly proves they regarded him as an employee and a worker till date of dismissal. Neither party had ended the contract of employment before then.

You can prove your husband exercised treaty rights as a worker. Only when voluntarily unemployed would he lose worker status immediately.

Therefore he could not be VOLUNTARILY UNEMPLOYED until after the date of dismissal, unless he resigned first.

What he did was voluntarily invoked the misconduct procedure - by not attending work; but he was still a worker till dismissed, cos he did not resign with immediate effect. ( which he could have done if he wanted to).

Only after the date of dismissal, if he did not register as a jobseeker and did not look for another job, should he be considered voluntarily unemployed ( and not a worker and not exercising Treaty Rights).

Therefore he retained worker status till after the date of dismissal.

Thus, I would focus on the whole picture and point out even though the was not attending for the last few weeks, according to the terms of the employment contract of that company, as he did not formally resign and was not sacked on the last day he attended, by his terms of employment he WAS A WORKER IN THE EEA LEGAL DEFINITION till after the date of dismissal.

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You did not say if you know what became of your ex: alive or dead or working in UK or what? Left the country or unknown?

---------------------------------------------

[Directive/2004/38/EC]

What he did was voluntarily invoked the misconduct procedure - by not attending work; but he was still a worker till dismissed, cos he did not resign with immediate effect. ( which he could have done if he wanted to).

Actually what he did was not attend work.

From what has been written in this thread, it is not clear what was or was not in his mind, nor what he intended. Maybe he was sick in bed. "voluntarily invoked" is strong.

[nonspecifics]

Correct. There is no evidence to indicate his intentions or motives.

Thus, the only evidence is that he was a worker till dismissed, anything else is conjecture and has no legal basis.

So the facts for the case are:

1. He did not resign, and was not dismissed, on the day he stopped attending work 22/04/2009.

2. He continued to be employed until 20/05/09.

3. As he was employed until 20/05/09, he continued to be a worker ( in the EU Directive 2004 /38 legal definition) and thus the only evidence available indicates he was exercising Treaty Rights until that date.

4. The Decree Absolute was dated 13/05/09.


5. The non-EEA national was the family member of an EEA national until 13/05/09.

The evidence proves the EEA national was exercising Treaty Rights as a worker until at least 20/05/09.

6. No definite dates were supplied, but the original poster seems to suggest that she as the non-EEA met the requirements to retain rights of residence.

7. The original poster also implies she has five years continuous residence in the UK.

7. The non-EEA has a perfect employment record, so presumably never required public funds and so was never an unreasonable burden.

8. Therefore she has acquired permanent residence and the UKBA acted unlawfully when they refused the documentation confirming PR.

[Directive/2004/38/EC]

Though you could argue it is irrelevant in this case, there is not a requirement that a worker is working every single day when in a host member state.

For instance, I can move to Germany, find a job after two months, work for three years, then quit my job (for whatever reason). I do NOT need to start a new job the next day. I am free to drink and chat with friends for a few days, thinking over what I want to do, and then start job hunting. In fact that is a very important part of being a job hunter: figuring out what kind of job you want to do, where you want to do it, and how to get the job!

[nonspecifics]

So, do you recommend the poster prepares her appeal arguing along the lines I laid out, as evidence the EEA national was a worker exercising Treaty Rights?

So, if no other evidence is presented then, " on the balance of probabilities" she has proved he was a worker at the relevant dates?

I would also emphasise the principles of proportionality and fairness in application of the Directive of which there is plenty reference to these in previous judgements.

If an EEA national missed work for a few weeks and his family faced deportation etc as a result of three weeks missed work this would seriously deter any EEA national from exercising Treaty Rights.


Is a refusal over a disputed period of three weeks fair and proportional behaviour? NO!

UKBA made the assertion that he was not exercising Treaty Rights though they don't dispute he was employed at that time, so It would be UKBA's problem trying to disprove he was a worker during the relevant 21 days of non-attendance at work and that a refusal on this basis is fair and proportionate.

Is that how the appeal will go?


So, is there any case law that an employee is a WORKER
( in the EU definition of worker) WHEN ABSENT FROM WORK?

Or any case law that agrees with UKBA that an employee who does not attend work, for three weeks, for unknown reasons, is not a Worker?


I read this: http://www.acas.org.uk/index.aspx?articleid=1650

How much notice of termination must I give my employees?

Both you and your employee are normally entitled to a minimum period of notice of termination of employment. After one month's employment, employees must give you at least one week's notice; this minimum is unaffected by longer service. You must give employees:

at least one week's notice after one month's employment two weeks after two years.

three weeks after three years and so on up to 12 weeks after 12 years or more.

--------------------------------------------

Also, an EU national should not be treated differently from a UK national, so if a UK national would still be regarded as working, then so should an EEA national.

Would a UK national be regarded as unemployed and so eligible for jobseekers allowance if he is still registered as employed?

ASK JOBCENTRE PLUS for an answer in writing!

[Directive/2004/38/EC]

My "rules"-for-appeals, based on helping one friend with one, would be as follows:

(1) Have a very clear timeline. For each even, when did it happen, what happened, and list the evidence of it.

(2) If you are referring to UK Government documents or rules, include a full printout of the rule. Same goes for UK case law, and for ECJ decisions.

(3) Check and double check all submissions. Make sure there are no mistakes and everything is clear. Have somebody else take time to go through the whole thing so you make it super easy to read and understand.

(4) Keep a copy of everything!

[nonspecifics]

That is excellent advice Directive.

There is a useful guide on how to present appeals called:

'Representation at Immigration Appeals A Best Practice Guide'


That file and other interesting immigration stuff for download can be found here:

http://www.ilpa.org.uk/pub.html