PR and implications for EEA Residence Card holders

[a.s.b.o]

I would kindly ask for an advice from experienced forum members.

My parents, non-EEA nationals, reside in UK on foot of an EEA Residence Card. We gone through the tribunal to prove their dependence, it was duly attested in court, it was ruled in our favour. This ruling was accepted by UKBA who subsequently issues EEA Family Permit and then Residence Card.

Now I want to apply for Permanent Residence for myself. I am now worried due to income threshold test applied to PR applications and if UKBA does not issue PR (and I then have to go to court to repel that), will it have any short- or long-term implications for my parents? Said differently, will they be asked to leave if UKBA makes this decision and until (if at all) I succeed to convince the court?

Please, I will be greatly indebted for suggestions.

ASBO

[secret.simon]

Are you an EEA national or the non-EEA family member of an EEA national?

PR as a status is acquired automatically under the EEA Regulations. It is not applied for. What you are applying for is confirmation of PR status. Because it is confirmatory only and not a grant, the Home Office refusing to issue a PR document does not affect either your or their status in the UK.

As PR is a status under the EEA Regulations, there is no change to the status of your parents.

[noajthan]

I would kindly ask for an advice from experienced forum members.

...

Now I want to apply for Permanent Residence for myself. I am now worried due to income threshold test applied to PR applications and if UKBA does not issue PR (and I then have to go to court to repel that), will it have any short- or long-term implications for my parents?

ASBO

Why is everyone so loyal to UKBA, (an organisation that was deemed not fit for purpose and which was abolished in 2013)?

How was the Union citizen sponsor exercising treaty rights when the dependents' FPs and RCs were granted?
Has anything changed since then (for better or worse)?
Has sponsor continued to keep nose to grindstone?
Enjoyed any absences from UK?

As long as sponsor is exercising treaty rights (or has acquired PR) no goons are going to batter down your door.

[Richard W]

Said differently, will they be asked to leave if UKBA makes this decision and until (if at all) I succeed to convince the court?

My answer is worded on the basis that the OP is the only possible EEA sponsor for the family, and that he has not been a British citizen during the relevant period.

There are two relevant decisions involved here.

1) Has the OP achieved permanent residence? If he has, then the family is on the home run, and only his premature departure (literal or metaphorical) could prevent the rest of the family acquiring PR in due course.

2) If there was a period when he was not a qualified person, is he currently a qualified person? If he is, then the only guaranteed problem so far is that the acquisition of permanent residence is delayed. (Brexit is a threat in this case.)

If the OP has not achieved permanent residence and is not currently a qualified person, then there is a problem.

If the Home Office and the DWP apply the same test to determine if someone is a 'worker' in the EU sense, then the threshold need not be a problem. As far as I can make out, the first stage of the process is to look at the monthly average earned income. If it exceeds a threshold, it is illegally concluded that the person is a worker. If it does not, then more subjective tests are employed and an overall opinion is formed.

Finally, if the OP is intermittently not a qualified person, proportionality should come into play. Would it be proportional to remove his parents?

[Richard W]

... the first stage of the process is to look at the monthly average earned income.

Correction:
It's a 3-month period that is considered - see the press release Minimum earnings threshold for eea migrants introduced. I've also seen the 3 months period mentioned in alleged instructions for DWP staff, but I can't find it just now. Remember that 0-hours contracts are legitimate employment for a 'worker'.

[CR001]

User a.s.b.o. is Irish.

http://www.immigrationboards.com/eea-ro ... l#p1373192

[Richard W]

User a.s.b.o. is Irish.

Thank you, but I'm wary of reading the statements I found as being a denial of being British.

[CR001]

User a.s.b.o. is Irish.

Thank you, but I'm wary of reading the statements I found as being a denial of being British.

What are you talking about? I was merely stating a fact.

[a.s.b.o]

Thank you all guys for finding time to respond. I will try to state fact, feel free to spin it either way.

1. I am Irish and was resident in NI for at least 5 years (but after 2006). I selected last 5 years as the qualifying period for simplicity.
2. During this time I was employed as a postgraduate instructor (3 semesters) and was self-employed throughout the qualifying period. I was absent from UK for a number of months in each year due to research trips, co-work with fellow co-authors in respective universities outside UK. I was NOT absent for more than 6 months in any of the past 5 years (being on average absent for 3-4 months a year).
3. As per thread and my earlier question regarding minimum earnings threshold, I now seem to have averaged ca. £150/week for the past 5 years pro rate and as per residence periods in UK (remaining 9 - 8 months per each qualifying year). This takes into consideration self-employment and employment earnings.
4. At the time of application for Residence Card I was teaching, so I was then employed and my parents had an easy ride with their Residence Card application.

I am concerned that HO (I am not too hung up on UKBA name) will apply the minimum threshold for the entire 12 months period for every qualifying year. In that instance, I will fail their test. Therefore, I am concerned regarding implications for the status of my parents. This worries my a lot and I am willing to sacrifice my own peace of mind for the sake of not triggering the consideration (i.e. PR application) and not generating negative implications for my elderly parents.

Thank you for sharing your thoughts.

[Richard W]

How many hours a week are you working at making money when you're in the UK? 10-12 hours has been suggested as sufficient for a 'worker' in Kempf (case C-139/85), though I do wonder if he was in fact self-employed. I presume time spent drumming up business also counts - is your published research a form of advertising?

The relevant guidance EEA Nationals Qualified Persons (esp. pp18 et seq.) does not actually mention a threshold for the self-employed - it suggests that your activity should always be scrutinised.

[a.s.b.o]

How many hours a week are you working at making money when you're in the UK? 10-12 hours has been suggested as sufficient for a 'worker' in Kempf (case C-139/85), though I do wonder if he was in fact self-employed. I presume time spent drumming up business also counts - is your published research a form of advertising?

The relevant guidance EEA Nationals Qualified Persons (esp. pp18 et seq.) does not actually mention a threshold for the self-employed - it suggests that your activity should always be scrutinised.

Having a record of self-employment is not going to be a problem. I have been genuinely employed for about 10 years now and my self-employment comes with a bit of a formal trail: I interpret for multiple Health and Social Services Bodies and multiple other stakeholders (Police, Courts) and have been specifically trained for that (and issued with a certificate). As to the number of hours, self-employment is variable and many hours do not get formalised (e.g. filling a tax return for a client might cost a XXX number of pounds but takes dozens of hours to do).

I can arbitrarily argue to be engaged at least 15 hours a week in all capacities (employment and self-employment) and as mentioned, will be in a position to show £150 per week on the pro-rata basis for a number of months while being in UK (e.g. 8 months in 12 months period and net earnings divided by 32 weeks will exceed £150). This figure would derive from aggregate earnings for the annum as these would be accrued and booked at different times. My concern is that 1) I will be made to demonstrate £150 per 52 weeks or if my arguments of the pro-rata rationale appropriateness, 2) I will be made to show £150 per each week in which I am in UK (this will be problematic due to the nature of booking the earnings).

Has there been any rulings since 2014 relating to this great area of (mis)application of EEA legislation?

[noajthan]

It makes no sense to apply the checks to times when you were outside the country.

Not that common sense is necessarily applied.
As these checks are all off-piste who knows.

[Richard W]

My concern is that 1) I will be made to demonstrate £150 per 52 weeks or if my arguments of the pro-rata rationale appropriateness, 2) I will be made to show £150 per each week in which I am in UK (this will be problematic due to the nature of booking the earnings).

According to that 'modernised guidance' (higher level page "EEA, Swiss nationals and EC association agreements (modernised guidance)") I linked to, the PET test, discussed on p13, applies to a 'worker', not someone who is self-employed. Moreover, note the text:

HMRC has a Primary Earnings Threshold (PET), which is the point at which employees
must pay class 1 National Insurance contributions. If an EEA national is earning below PET you must make a further enquiries into whether the activity relied upon is genuine and effective.

Thus, earning below the threshold does not disqualify someone from being a 'worker'. It merely indicates that further scrutiny is required.

The question may come down to, 'Why are you doing this work, and only 15 hours a week?'. A valid answer, if true, might be, 'It's enough to live on'. (Is this why the forms have questions about benefits?) At an average of 15 hours a week, it's a significant part of your life, so it would not be 'marginal and ancillary', even it's not the major part of your working time. On the other hand, if you were dependent on a private income, I could see it being argued that your paid work is 'marginal' and 'ancillary', possibly with an accusation that you were abusing the system to allow your parents to live with you. I don't know how well such an argument would fare with the courts.

[noajthan]

Some members have reported refusals due to failure to 'pass' PET where sponsor is a self-employed qualified person..
(Almost unbelievably, some were even working abroad - SS route).

[a.s.b.o]

with an accusation that you were abusing the system to allow your parents to live with you. I don't know how well such an argument would fare with the courts.

Not sure what you mean there Richard. If abuse quantified in terms of reliance on social benefits than this issue is a non-issue. On the other note, dependence is the fact, which had to be established at the time of application and in our case, was substantiated over a period of 5- 7 years. Once again, the question boils down to whether earnings have to be steadily spread over every week and month or it can be considered on the annual aggregation scale divided by annual residence period in each of the qualifying years. The latter is substantiated by the unsteady nature of self-employment earnings as different clients have different payment terms.

[Richard W]

with an accusation that you were abusing the system to allow your parents to live with you. I don't know how well such an argument would fare with the courts.

Not sure what you mean there Richard. If abuse quantified in terms of reliance on social benefits than this issue is a non-issue. On the other note, dependence is the fact, which had to be established at the time of application and in our case, was substantiated over a period of 5- 7 years.

The abuse would be just doing a few translation jobs a week to apparently keep up your status as a qualified person. Now I'm not sure if legally that would be abuse - I don't understand why some actions are abuse and others are not.

Once again, the question boils down to whether earnings have to be steadily spread over every week and month or it can be considered on the annual aggregation scale divided by annual residence period in each of the qualifying years. The latter is substantiated by the unsteady nature of self-employment earnings as different clients have different payment terms.

I looked for cases reported here of refusals on the basis of MET, but my googling may not have been effective. I found two cases. One, that of Aliuk, does seem to be a case where the MET has been applied as a necessary criterion, in breach of the HO guidance; it's also a case where the caseworker misunderstood the evidence, and so got the income level wrong anyway.

The other, that of Akz, is relevant and encouraging. He was refused because his wife's work was judged as not genuine an effective because the average income was too low (about £55 a week). He summarised the issues for his appeal, and published a breakdown of his wife's income. As you can see from his signature, he won his appeal. The income was both low and irregular.

[a.s.b.o]

The abuse would be just doing a few translation jobs a week to apparently keep up your status as a qualified person. Now I'm not sure if legally that would be abuse - I don't understand why some actions are abuse and others are not

guilty by affiliation and not really sure how to respond to that. I am hopeful you play a devil's advocate here. Thanks for the links, my earnings are above those and are more frequent compared to the example of monthly payments in those cases. This gives me some confidence. Would you have a few suggestions how to craft a covering letter? By this I mean,

1. show that I am aware of MET/PET and refute that based on....
2. highlight absences and give a perspective that these earnings should be spread over the annual 'remaining' periods?

what else?

Thank you

[Richard W]

Would you have a few suggestions how to craft a covering letter? By this I mean,

1. show that I am aware of MET/PET and refute that based on....
2. highlight absences and give a perspective that these earnings should be spread over the annual 'remaining' periods?

Be cautioned that there is absolutely no guarantee that my tactics are sound.

I wouldn't mention MET. You could give annual ranges of your monthly income when you're in the UK. Instead, I would attempt to demonstrate that the work was genuine and effective, as opposed to marginal or ancillary. Does the irrelevant nature of the work affect your planning - do you have to provide advance notification of when you will not be available? Show, if you can, that the work is not a marginal part of your life. There may be some helpful hints in general in the thread containing my post on assessing who is a worker. Of course, what shows that employment is genuine does not necessarily apply to self-employment - you don't get paid leave! I liked Akz's presentation of the unevenness of his wife's income - perhaps you can do the same when you present your evidence.

To introduce such evidence naturally, it may be necessary to 'go commando' and modify a standard application form so that you include the relevant statements - and evidence!

[Richard W]

I don't know of this example is helpful. It' paragraph 35 of Housing Benefit Circular HB A3/2014:

The claimant was a French national. She came to the UK on 6 January 2014 and claimed HB on 17 February 2014. It emerged that the claimant had been working on a self employed basis as an interpreter. Since arriving she had worked for 12 hours per week on average charging a fee of £15 per hour. The DM decided that the claimant’s activity as a self employed person was genuine and effective and that consequently the claimant had a right to reside as a self employed person and was therefore not a person from abroad. As she had a right to reside as a self employed person she was deemed in law not to be a person from abroad and so did not have to satisfy the HRT.

The problem is that she was earning more than you.