What is my wife's status?

[waxwing2012]

I wonder if someone could help. First the facts:

I met my wife in the Czech Republic and we married in 2005. In 2007 we moved to the UK and have been there ever since. I am English, and since 2007 have been self-employed in the UK. My wife is a top level translator and effectively works at home. But she invoices through her Czech company, pays tax there and has never registered in the UK, nor has she registered to pay NI here. She spends well over 300 days a year in the UK, is registered for council tax etc, and has had a UK bank account for five years (we were told by another bank that she is not technically allowed to have the account but the first bank made a mistake!) She is also joint owner of our house. All of this can be proven.

First question is: has my wife actually been living illegally here on this basis? Someone told us she should have been registered for paying NI.

Does this five years of "residency" qualify her for a citizenship application, seeing as three years are required?

She is now going to register herself in the UK as self-employed, and last year she acquired a tax number (which she has not used.) So we are assuming that she needs to spend 3 more years in the UK before we can get the citizenship sorted out.

Can anyone help? In the modern world, you can translate for Czech companies sitting in a UK house. But we are a bit worried that perhaps we have broken some rules along the way.

[Lucapooka]

My wife is a top level translator and effectively works at home. But she invoices through her Czech company, pays tax there and has never registered in the UK, nor has she registered to pay NI here. She spends well over 300 days a year in the UK,

She is in breach of UK tax laws. She is resident for UK tax (regardless of the source of the money being outside the UK) so might want to consider regularizing her tax affairs.

To answer your question:
She is working but is not exercising treaty rights in a legal sense and is not a legal resident of the UK after any continuous period of three months. If she registers with HRMC she will immediately be exercising treaty rights and become a legal resident.

If her treaty right was as a self-sufficient person (based on your salary) she would need comprehensive sickness insurance.

Until now, it seems that none of her time in the UK cannot be considered for a permanent residence application.

[Obie]

Can you clarify what you were doing in Czech republic. Were you working or self employed , and can you prove it?

[waxwing2012]

I was first employed, then self-employed (but through a company that I had to form.)

To Lucapooka, are you saying that my wife should pay UK tax on income that she has already paid Czech tax on? The Czech's certainly wouldn't accept her not paying tax there on her income which is paid through her own company. There is an agreement between UK and EU states on double taxation, in any case

[Lucapooka]

She is liable for tax in the UK. Whether or not there is a tax treaty with CZ is something that she should investigate. Nevertheless, she is obliged to register with HMRC and let them indicate to her if any tax paid in CZ can be offset against her UK liability. Without doing this, she is in breach of UK tax regulations and, in terms of her immigration status, it remains that she is self-sufficient and should get CSI. On the other hand, I would ask why she is paying tax in CZ if she is not resident for tax in that territory?


Obie. I can't see where is says Singh may apply to EU partners, as well as non-EU partners.

[waxwing2012]

Lucapooka, her company is resident in the Czech Republic. You can't be self-employed in the UK sense, you form a company and basically, that what is earning the money. The company pays the tax and what is left belongs to my wife.

Within the EU, there is an agreement on double-taxation (although not between EU and USA). But I agree we should try to sort it out but no Czech company is going to want to pay her in pounds for her work.

[Obie]

I am not going to engage in the tax issue, as it is not my area of expertise. Although i am incline to believe everything is overboard.

Why do you think Singh will not apply?

Singh judgement does not say EU spouses are not qualified, the EEA regulations does not say so, futhermore it will be discrimination on grounds of nationality, which is forbidded under Article 24 of the charter, if legislation say so. Correct me if i am wrong.


Singh simply put a British national in the place of an EEA national. Once that is achieved, community law is applicable in its entirety. That is my understanding of the rules. I know the subject in Singh and Eind were non-EEA national. I dont think this means its applicability is limited to them alone.

[Lucapooka]

Yes, I've just checked and there is a treaty, but she does need to be registered with HMRC and make a tax return. She can use her CZ tax payment as a credit against her UK liability. There may or may not be anything else to pay in the UK depending on the tax thresholds being applied in CZ.

[Lucapooka]

Obie.
Chapter 2 refers to non-EU parter rather than any partner so naturally I raised the question. I still have doubts on this matter.

[Obie]

What chapter 2?

I believe it may be safer for us to stick to legislation or treaty than on guidance.

No offence to anyone, but sometimes these guidance are not worth the paper they are written on. They are simply designed for domestic consumption.

However i am doubtful that any of UKBA guidance support the assertion that EU spouse are not qualified.

[Lucapooka]

Well, to be fair to the person who began this thread, he wants a solution to his problem. I have already made a suggestion on how to regularize her status as an EU national exercising treaty rights.

Furthermore, I feel that as an EU national exercising treaty rights, submitting tax returns (on which there may be nothing to pay) for the previous years she was working in the UK, will allow her to use those years to qualify for PR as it proves she was working in line with UK employment rules since 2007. That's an easy fix in my opinion.

Obie, you have made a suggestion in another area. He may not be familiar with Singh, so if you could elaborate on your particular thinking with regard to his wife's status, that would perhaps be of great help to him.

[Obie]

Obie. I can't see where is says Singh may apply to EU partners, as well as non-EU partners.

I have no issues with your contribution. Every contribution on the forum count, provided it is not misleading or clearly illegal. Its just that you raised some issues with mine, which i thought you may clarify.

I thank you for triggering me to research more.

I found that EEA 1 and EEA 3 makes provision for Singh. Therefore i think singh is applicable.

My question to the OP which is still unanswered, is whether he can prove that he was working or self employed in Czech republic by means of documentation proving that.

[Directive/2004/38/EC]

Singh definitely applies to a spouse of a British citizen no matter what country in the world they come from. EU spouses are not treated worse than non-EU spouses.

In this case, because the British citizen was working in CZ, the wife has been living in the UK very legally since 2007. 5 Years after the date of arrival, so some time in 2012, she acquired PR in the UK. She can apply for British citizenship one year after that.

She could if she wants register in the UK, but it is not required from any immigration perspective.

Tax matters might need to be sorted out. Tax law is even more confusing than immigration law!

[waxwing2012]

My question to the OP which is still unanswered, is whether he can prove that he was working or self employed in Czech republic by means of documentation proving that.

Obie, sorry I didn't really focus on that (and thanks for your time in answering my queries!)

I have no problems proving I was working legally in CZ from 1994 to 2007. I informed the UK authorities I had left the country (and informed them when I returned.) A lot of foreigners were working illegally in CZ during that period but I was not. And for five years, was employed by CZ government.

Could you explain why this is important? My wife and I married in 2005 (we have a certificate etc)

[Obie]

Then it seems your wife is legally resident in the UK, as the family member (spouse) of a British Citizen, who was exercising treaty rights in another member state. You could apply to confirm this right if you so wish, but it is not compulsory.

[Jambo]

If British citizenship is the goal, I would advise apply for confirmation of PR status using from EEA3 and using the Surinder Singh route (British citizen returning to the UK after working in another member state). Check section 6 of the form but you basically need evidence of your work there and of your residence there (best after marriage). Your wife will only need to prove residence in the UK. Employment is not required.

Once this is confirmed (should take 2-3 months), she can apply the same day for BC as a spouse of BC (if she meets the requirements).