Does time off to look after new born affect worker status.

[Lucky576]

This is a topic which has affected lots of people on this forum, the choice between taking time of work to look after new born or loosing right of residence. I have expressed doubts about the fact that it is unfair that people who leave the UK for a year after given birth, does not loose their continuity of residence status, but if those people were to continue staying in the UK for 6 months without working, it will affect their right to PR.

Then comes the gender discrimination aspect of this case, where the effect of this will mostly affect women than men.

At the moment people on maternity leave dont loose their residence, but if you choose to leave work without a contract of employment, and look after your new born, you will be considered not to be residing in the uk in accordance with the EEA regulation. The consequences of this is disproportionate. Your residence is broken, and you will not be able to meet the right of residence test, and you lose the right to claim any form of benefits.

The Supreme Court has finally refered questions on these difficut issues to the CJEU, and it is hoped it will be answered positively, in favour of these women, who find themselves in this very difficult situation.

Jessy Saint Prix (Appellant) v Secretary of State for Work and Pensions (Respondent)

Hello everyone is any update on this issue from CJEU which court refer to EU court?

[Lucky576]

Seems EU did't reply yet...but seriously guys is it not gender discrimination that women lost treaty right if she left job for certain period during/after pregnancy ???

[Directive/2004/38/EC]

This is a topic which has affected lots of people on this forum, the choice between taking time of work to look after new born or loosing right of residence. I have expressed doubts about the fact that it is unfair that people who leave the UK for a year after given birth, does not loose their continuity of residence status, but if those people were to continue staying in the UK for 6 months without working, it will affect their right to PR.

Then comes the gender discrimination aspect of this case, where the effect of this will mostly affect women than men.

At the moment people on maternity leave dont loose their residence, but if you choose to leave work without a contract of employment, and look after your new born, you will be considered not to be residing in the uk in accordance with the EEA regulation. The consequences of this is disproportionate. Your residence is broken, and you will not be able to meet the right of residence test, and you lose the right to claim any form of benefits.

I agree 100% with your analysis.

Any woman EU citizen or her partner who has standing can challenge UKBA's approach. But most people do not even know it is an issue, nor are they willing to step up

[askmeplz82]

a forum member PR accepted by Home Office though his EEA national wife did not work throughout the 5 years April 2007 to April 2012 and only applied for comprehensive sickness insurance before sending application EEA3

the forum member is : http://www.immigrationboards.com/profil ... le&u=72369

I think this might be the wrong link. This person has only posted about British citizenship application

Please have look at this : http://www.immigrationboards.com/viewto ... ht=#623521

I am Canadian married to Austrian citizen since 2006, we came to the UK in April 2007 and was granted my residency permit which should expire in August 2012. I am preparing to apply for the EEA4 as I have now finished 5 continuous years of residency and want to get my PR. They are asking for comprehensive insurance which seem to have been added after I applied through the EEA2 in 2007. My wife did not work throughout the 5 years as she is looking after the children. I have however worked since coming here ( different jobs).

he applied EEA2 , then EEA4 all accepted without any evidence of EEA national exercising treaty right in the UK for 5 years

[Lucky576]

Hi askmeplz82
The above link didn't show that that person got his PR, last information was that he is going to apply,i am interesting in that case because one of my friend's wife( Eea)have a gap in employment because of pregnancy/birth for nearly one year with no maternity leave,she just left the job and started new job after one year..

I believe in EU law this should be explained or they should think about again on this issue of gender discrimination that if Eea national left the job because of pregnancy/birth and started again it means they dont want to be burden on UK, their motivation is to take care of child and obviously birth issue..and started work means they really don't want to be burden on society...

Do anyone know know any mail address to send to justice department in EU to inquire or make them to rethink on that issue,may be we can get positive answer as i believe many people in this forum are in same situation.or ASKMEPLZ82 you can send them email because you really like to put light on difficult issues ?

[Lucky576]

Hi askmeplz82
The above link didn't show that that person got his PR, last information was that he is going to apply,i am interesting in that case because one of my friend's wife( Eea)have a gap in employment because of pregnancy/birth for nearly one year with no maternity leave,she just left the job and started new job after one year..

I believe in EU law this should be explained or they should think about again on this issue of gender discrimination that if Eea national left the job because of pregnancy/birth and started again it means they dont want to be burden on UK, their motivation is to take care of child and obviously birth issue..and started work means they really don't want to be burden on society...

Do anyone know know any mail address to send to justice department in EU to inquire or make them to rethink on that issue,may be we can get positive answer as i believe many people in this forum are in same situation.or ASKMEPLZ82 you can send them email because you really like to put light on difficult issues ?

[askmeplz82]

Hi askmeplz82
The above link didn't show that that person got his PR, last information was that he is going to apply,i am interesting in that case because one of my friend's wife( Eea)have a gap in employment because of pregnancy/birth for nearly one year with no maternity leave,she just left the job and started new job after one year..

I believe in EU law this should be explained or they should think about again on this issue of gender discrimination that if Eea national left the job because of pregnancy/birth and started again it means they dont want to be burden on UK, their motivation is to take care of child and obviously birth issue..and started work means they really don't want to be burden on society...

Do anyone know know any mail address to send to justice department in EU to inquire or make them to rethink on that issue,may be we can get positive answer as i believe many people in this forum are in same situation.or ASKMEPLZ82 you can send them email because you really like to put light on difficult issues ?

please go back to his profile ( UKnow ) read other thread he posted:



Hello All,
I have a couple of questions for you and hope some of you can help..
I applied for my PR as a non EU citizen (EEA4) and received my PR few weeks back.

I am now in the process of applying for a PR card for my EU spouse and my children who are also all EU citizens

2- My EU spouse (wife) did not work for 5 years as she is looking after our children, I was the source of income for the family, my question is: will I need to send with my application our marriage certificate to prove I am her husband although we have a join account where my salary was deposited in through the last 5 years now? or is it enough to provide my income proof ( p60) for the last 5 years and the bank statements for the joint account


http://www.immigrationboards.com/viewto ... ht=#725534


sending email to justice dept. in the EU ? i will try but if you want me to talk to the UK prime minster very easy; he can be seen everyday jogging in the Hyde Park

[Obie]

Opinion in the Case of Saint Prix..

There may be hope in the air.

[Lucky576]

Hi Obie.. I am sorry i couldn't understand from that lengthy decision..
Can you please tell me what is the decision in Saint Prix?
How much time EEa citizen can be off from any labour market voluntary?
Voluntary mean left the job no maternity pay etc.. And after 6 month of birth again started the job with different employer?
Thanks

[Lucky576]

Can anyone please explain above post? Thanks

[Obie]

In the circumstance you mentioned above, you will be fine if the CJEU agrees with the opinion of the Advocate General.

[Lucky576]

Thank you ! So when we are aspecting answer from CJEU ? Any idea

[Obie]

Judgement could be out in few months or later.

There is a general consensus by all the memberstates who filed submissions to the court, save for the UK of course.

I believe it will be a positive judgement.

[Obie]

I have always wondered why the UK sought to pursue this case, but they did.

The found themselves isolated in the process, as all the memberstate that made submissions and the commission were against them.

Now the court is against them. Saint Prix is out.

A pregnant woman and someone who looks after their baby after confinement is a worker under EU law .

[fatimahh]

Thank you Obie - this is a very good news for one of my EEA friend who has a 1 year + gaps. after the end of her maternity leave she waited a full year before resuming work.
however my concern is that they do not define exactly what is the reasonable time for staying out of work

"The Court holds that, in order to determine whether the period that has elapsed between childbirth
and starting work again may be regarded as reasonable, the national court should take account of
all the specific circumstances of the case and the national rules on the duration of maternity leave."

Do you think she will be alright?

[askmeplz82]

Interesting ...

[Obie]

At least with Saint Prix, we can be rest assured that there is no repeat of Christelle Pardo

[bluebell555]

Could someone please tell me if, as a pregnant woman, and then after birth being a new mother with a newborn baby, I would be classed as a "worker" for doing 6 months in another EU country (Ireland) in order to use Surinder Singh back into the UK with my non-EU husband and baby?

I would like to know as I will find it very difficult to qualify under any of the other "centre of life" groups (not having time to devout to study or self-employment).

Thank-you in advance for any answers you can give me.

[michaelhighland]

Hi all,

I know I am joining this forum a little late but as the brexit looms closer I have a few queries in regards to what qualifies as worker status in the UK. If a person is married to a UK citizen and has a partner who is a stay at home parent this is currently classed as a non resident and requires that person to have CSI to be classed as a resident and subsequently avoid being kicked out of the UK (as unlikely that will be). However is it possible to give the partner staying at home an employment contract with regular weekly/monthly pay which would make this person technically a UK worker, see divination of UK worker below.

I look forward to having a discussion about the above, or pointed to a forum that is interested in carrying this topic onward.

2. Worker
A person is generally classed as a ‘worker’ if:

they have a contract or other arrangement to do work or services personally for a reward (your contract doesn’t have to be written)
their reward is for money or a benefit in kind, for example the promise of a contract or future work
they only have a limited right to send someone else to do the work (subcontract)
they have to turn up for work even if they don’t want to
their employer has to have work for them to do as long as the contract or arrangement lasts
they aren’t doing the work as part of their own limited company in an arrangement where the ‘employer’ is actually a customer or client

[michaelhighland]

Hi all,

I know I am joining this forum a little late but as the brexit looms closer I have a few queries in regards to what qualifies as worker status in the UK. If a person is married to a UK citizen and has a partner who is a stay at home parent this is currently classed as a non resident and requires that person to have CSI to be classed as a resident and subsequently avoid being kicked out of the UK (as unlikely that will be). However is it possible to give the partner staying at home an employment contract between the man and wife with regular weekly/monthly pay which would make this person technically a UK worker, see definition of UK worker below.

I look forward to having a discussion about the above, or pointed to a forum that is interested in carrying this topic onward.

2. Worker
A person is generally classed as a ‘worker’ if:

they have a contract or other arrangement to do work or services personally for a reward (your contract doesn’t have to be written)
their reward is for money or a benefit in kind, for example the promise of a contract or future work
they only have a limited right to send someone else to do the work (subcontract)
they have to turn up for work even if they don’t want to
their employer has to have work for them to do as long as the contract or arrangement lasts
they aren’t doing the work as part of their own limited company in an arrangement where the ‘employer’ is actually a customer or client

[michaelhighland]

Hi all,

I know I am joining this forum a little late but as the brexit looms closer I have a few queries in regards to what qualifies as worker status in the UK. If a person is married to a UK citizen and has a partner who is a stay at home parent this is currently classed as a non resident and requires that person to have CSI to be classed as a resident and subsequently avoid being kicked out of the UK (as unlikely that will be). However is it possible to give the partner staying at home an employment contract between the man and wife with regular weekly/monthly pay which would make this person technically a UK worker, see definition of UK worker below.

I look forward to having a discussion about the above, or pointed to a forum that is interested in carrying this topic onward.

2. Worker
A person is generally classed as a ‘worker’ if:

they have a contract or other arrangement to do work or services personally for a reward (your contract doesn’t have to be written)
their reward is for money or a benefit in kind, for example the promise of a contract or future work
they only have a limited right to send someone else to do the work (subcontract)
they have to turn up for work even if they don’t want to
their employer has to have work for them to do as long as the contract or arrangement lasts
they aren’t doing the work as part of their own limited company in an arrangement where the ‘employer’ is actually a customer or client

[secret.simon]

I don't think it is nearly as straightforward as you believe it to be to make your wife's status into a worker.

For starters, a contract, whether verbal or written, would need to specify either the number of hours or unit of work (eg two pieces of research containing atleast 10 pages each) and the specific amount of remuneration (which can not be less than the minimum wage).

Secondly, her earnings would need to be evidenced in multiple ways, such as both bank transfers and pay slips or an accountant's statement of her earnings.

Thirdly, she would need to be registered with the tax authorities for work and would need to file the appropriate tax returns, even if she has no tax to pay.

I think it is much simpler to purchase Comprehensive Sickness Insurance and get her a Residence Certificate (using form EEA(QP)).

[Obie]

On the basis of EU law and JA, what Secretsimon is saying cannot be correct.

[secret.simon]

Obie, I see from the judgment that the second and third points I raised are incorrect/invalid. But would you agree that the first point is valid, based on paragraph 16 of the judgment?

I have lightly edited the relevant paragraph (taking out the EU case law references) for clarity.

[quote]16. Worker is a European concept. That means that it is defined by European law, through the decisions of the Court of Justice of the European Union. Work means the performance of services under the direction of another for remuneration. The services must be in pursuit of an economic activity. It does not matter that the job is short-term or temporary.
...The Court has applied the same test whether the activity undertaken is part-time, irregular or intermittent: does it represent the pursuit of an effective and genuine economic activity? Activities which are on such a small scale as to be purely marginal and ancillary do not amount to work./quote]

[Obie]

For the avoidance of doubt, the views i expressed were in regards to the the second and 3 point.

I did not question the first point, because a person will in some respect demonstrate that his or her work is genuine and effect, and this may well be demonstrated by a contract of employment or any other appropriate means.