Am i eligible for an EEA2 permit

[spazem]

Hello,

I currently have an EEA permit valid until Dec 11. I am Australian and my wife is french and we are married. And i live in the UK while she still resides in Paris.

I have started my own campany up with a friend but we are not drawing wages for the first 6 months as to save company costs.

My wife has an excelelnt Job in paris which she make 5000 euros a month.

I am unsure on how to proceed as my wife is going to move to London with me but might to continue traveling to paris during the week for work as she gets paid more there. How does that work with our application as i on paper will not be working or not drawing funds from the company and she does nto work for a UK compnay.

My wife has looked for work in the uk but would earn 1/2 as much. Ideally if she could work in paris 4 days a week and be in London 3 days a week this work be perfect. But i fear this does not look good on the application.

Any advice would be great.

Thanks
Jason

[nonspecifics]

If I understand it correctly: The EEA national is a French citizen, who works in France and spends most of the year in France.

Presumably she pays her income tax as a resident of France?

So, her weekends in the UK would be like a weekend retreat.

I hope someone can say I am wrong, but it seems she is not exercising Treaty Rights, so she is not a qualified person to sponsor you.

[spazem]

I still dont understand.

Another way i though might work is my wife is self employed in france. If she opens a UK company and that uk compnay invoices france and she pays her NI here. Would this help also..

[nonspecifics]

Governments have agreements with regard to tax etc, so that people usually only pay tax as a resident in one country and are counted as a resident in one country at a time.

The tax people have a set list of questions to establish where a person should be regarded as resident for tax purposes.

I don't know if UKBA would work from the same questions.

One thing though, usually to be considered resident for UKBA purposes, the person normally has to spend 6 months a year in the UK.

See this HMRC form for guidance too:

http://www.hmrc.gov.uk/cnr/hmrc6.pdf

Perhaps you should consult an accountant that specialises in this field, to avoid problems with the tax and immigration people, who always seem to assume people are " on the fiddle".

[86ti]

Tax residence is an entirely different question.

You can only derive EEA rights in the member state your wife lives for at least six months a year and exercises treaty rights (self-sufficient is possible too in case of a cross-border worker).

[nonspecifics]

I understand that tax law is different, but the OP is trying to make sure his wife is qualified as a worker in the UK under the EU Directive.

You correctly pointed out she could also qualify as self-sufficient if she met that criteria, but it seems the OP's motive is to build a case around his wife being a worker in the UK, whose main home is in the UK, but who has to spend most of the time in France because that is where she obtains most of her employment.

So, if the facts are that she has to spend more time abroad than spent in the UK- though in this case she would be a French national working in France, but is domiciled in the UK, she would fail to be a UK resident for UKBA immigration purposes, even if her company and main domicile was here in the UK and pays her taxes and NI here?

I ask this because Baumbast worked abroad a lot, and was not working at all in the UK ( though he had previously worked in the UK). He was employed by a German firm and worked all over abroad, it seems. But he regarded home as where his house, wife and children were ( the UK) and presumably where he went to when not working.

[86ti]

Look up the definition for 'cross-border worker' (that refers to the OP's original idea). The basic requirement is to return periodically but at least once a week to one's place of residence. Where and how to pay tax in this situation is a matter of bilateral agreements between the UK and France. It may be necessary to consult a tax expert on this because as far as I understand those are non-trivial matters. If the spouse is not paying tax and NI contributions in the UK she would need to qualify as self-sufficient and thus also have comprehensive sickness insurance (her health insurance provider in France may cover her while she is in the UK).

[Obie]

Yes you are right 86ti, OP's wife is a Frontier worker. She should not be treated differently from that of national worker in her country of work.
I believe she is considered as a Self Sufficient person in her country of residence. However it is doubtful in light of her frontier worker status whether she will be required to have a Comprehensive Sickness insurance or prove she has sufficient resource in the country of residence.

[spazem]

i am sooooo confused. Is there a helpline i can call or does someone know anyone in the uk who deals with these twisted matters.

If she spends 6 months or more in the uk which she will as only working 4 days a week and holidays in the uk. Is employed by a uk company... herself... and pays NI and tax isnt that the same as working in the uk.

How would they even know she doesnt work in the UK? she is french and doesnt need to show her passport to leave and enter the counrty.

[nonspecifics]

If she does spend 183 days or more per year in the UK then she will meet the time requirements for residence whether she pays tax in the UK or not. ( Then she just has to be exercising Treaty Rights in some manner so it is LEGALLY resident under the EU Directive.)

However, you could always start by reading this:

http://www.hmrc.gov.uk/migrantworkers/index.htm

You correctly point out that UKBA probably won't know when your wife enters or leaves the UK, but UKBA can and do say exactly the same thing and use it AGAINST applicants. Applicants are the ones that have to prove their case. They are expected to prove they have been resident in the UK for at least 183 days each year.

So youse could be faced with that same problem when applying for PR - especially if you use the self-sufficient category as suggested.

Employed Workers can usually easily prove they have been resident, cos they turn up for work in the UK - so have third party evidence from an employer.

I've read of self-sufficient PR applications being rejected cos they could not prove they are resident long enough, for the reason you pointed out - they do not stamp the passports when the EEA national enters and leaves the UK. For that reason I WOULD retain all proof of travel, appointments , proof of transactions or work done when in the UK to prove when resident in the UK. Anything that helps prove when they are physically resident in the UK

[Nimitta]

Employed Workers can usually easily prove they have been resident, cos they turn up for work in the UK - so have third party evidence from an employer.

Ops! Thank you for saying that. It means a self-employed who is working for different companies (via the Internet) all over the world might have the same problem. I totally forgot that for EEA citizens not having their passport stamped is a double-edged sward when it comes to proving exercising treaty rights. Would checks issued to a EEA citizen on a UK address and endorsed by a UK bank help the matter?

[Obie]

I believe it follows from Asscher and Carpenter and Alpine investment, that a Union Citizen does not have to be physically present in a member state in order to be able to benefit from the provisions of the treaty involving worker, Self-employed, service provider, etc.

Therefore the scenario the OP envisage is perfectly within the scope of community law, and he will not be doing anything illegal, even if the Home Office was to be made aware of his spouse's activity.

Furthermore, it was stated in one of the recitals in Regulation 1612/68, that there shall be no discrimination between, workers, frontier worker, Seasonal workers, or people whose activities involves the provision of service, within the scope of community law. As directive 2004/38EC aims to strengthen the rights of Union Citizens, as opposed to diminishing it, i suspect this objective is perfectly in conformity with the Citizens Directive.

[Directive/2004/38/EC]

It is interesting. I have searched UKBA's web site and there is nothing about "frontier workers" or "cross border workers".

But as long as the Eu citizen comes back to the UK weekly, I think there should be no problem.

[spazem]

I must be missing something.

If she starts a UK LTD company and pays herself in the UK as an employie. How will they know where she works? As she is EU citizen. Wont it just look like she works in the UK. Even if she says she works from the registed business address which will be home.

This is my first real thing. Then we dont need to prove the 184 days. She will be paying NI and TAX in the UK

[Directive/2004/38/EC]

Where you are paid is not much of an issue. Physical presence is more of an issue for some categories of EU law for free movement.

[Nimitta]

Where you are paid is not much of an issue. Physical presence is more of an issue for some categories of EU law for free movement.

How about electricity, gas etc bill and rent agreement? They all have both a UK address and the EU citizen's name on them.

[Directive/2004/38/EC]

If you want to meet the requirements of the rules, then you need to understand them. And there is an enormous amount of flexibility in these rules.

This is not about misleading tricks with electricity bills. That will not prove anything!

[spazem]

Hello,

You look like you guys know allot more then me.

I have just found out that i do quallify for a uk ancestery visa through legal adpotion but i need to goto australia to apply. This will cost me around 2000 pounds in total i think. with flights and everything.

Do you think this would be the better option other then my eea2 rec idency card? Is my case strong or does it have allot of holes.

I have already had 4 years ago a work permit rejected when the finincial crisis hit. Maybe this would not be good for my case.

What do you think might be the best and most ecomonical option?

Also thanks for your help.

[Directive/2004/38/EC]

I think you have three options:

(1) Move to France and live and work there with your wife.
(2) Stay in London and make sure your wife returns weekly so that she is considered a cross border commuter

Staying in London on your own will not work and is illegal. You will get caught eventually if you travel without your wife.

You may be able to apply for the "uk ancestery visa" from France if that helps. That assumes you are resident there, which you would likely be if you were with your wife.

Have you and your wife lived together in the UK? Was she working here?

[Nimitta]

If you want to meet the requirements of the rules, then you need to understand them. And there is an enormous amount of flexibility in these rules.

This is not about misleading tricks with electricity bills. That will not prove anything!

In what way could electricity bills be misleading? They are accepted in the UK as proof of residence for the purpose of opening bank accounts etc. If not bills, then what?

Say, my husband is a EU citizen and he is about to start working as self-employed in the UK (registering with HSMP, getting NIN, receiving payment for his job, keeping money in a UK bank and paying taxes). The problem as I see it that none of the above is a knockdown proof of physical presence. The best proof would be stamps in his passport (not an option) and employer's payslips (not an option). He has clients all over the world, and invoices and checks are no better proof of physical presence than NIN or electricity bills.

[Directive/2004/38/EC]

Will your EU husband be resident in the UK for at least 180 days a year? If so and he will be working, then you will have no problem. But I do not see why you will want to submit electricity bills - for what purpose?

[Nimitta]

Will your EU husband be resident in the UK for at least 180 days a year? If so and he will be working, then you will have no problem. But I do not see why you will want to submit electricity bills - for what purpose?

With the exception of 1-2 weeks (we might go on vacation once a year somewhere), he will be in the UK all the time and so will I. Why electricity bills? One thing is to be physically present in the UK, and quite another is to prove it. I thought of bills as a possible proof. The problem discussed in the OP made me worry about that. Both cases are similar in a sense that physical presence in the UK kind of untraceable. Whether one is present all the time in the UK (like us) or moving in and out (like in the OP) does not matter. She cannot prove she was not absent more than certain time and neither can my husband. Or am I wrong?

[Directive/2004/38/EC]

Normally you do not need to prove day-by-day presence in the UK. You need to make a statement on your PR application which outlines your absences.

Remember that UKBA has detailed records of arrivals in the UK. Passports get scanned when you fly in and the results do not get thrown out. PNR from all incoming and outgoing passengers get given by the Stupid to UKBA and I doubt they get thrown out any time soon. Is this perfect entry and exit data? No, but they have it if they need it.

But somebody whose EU husband/wife is commuting and is not mostly present in the UK will likely have to provide more evidence. And that is where your requirements differ from theirs.

[Nimitta]

Thank you for the explanation. If we do not have to prove day-to-day presence, there should be no problem. Thank you again!