Self-employed EEA Nationals earning below MET or Min Wage

[victoria_2010]

Am I correct in thinking that the HO considers a person ito be genuinely self-employed as long as their economic activity is not classed as 'marginal'. MET is not a very accurate measure. Consider the following hypothetical scenarios:

1. A self-employed Polish builder has a decent turnover, but the customer of a major job goes bankrupt and doesn't pay. The bad debt is written off resulting in a significantly decreased net profit. The applicant is then below the MET!

2. A Dutch decorator has been genuinely self employed for 3 years. He then hurts his back, knee, hip, etc and chooses to continue working instead of claiming any benefits based on his diminished capacity to work. However, it now takes him considerably longer to get the same jobs done. Thus, if he worked say 30 hours a week for a net profit of £240, he has had to drop half of the jobs and his income has dropped to £120 weekly. But he still works the 30 hours due to his disability/illness. He's below the MET and his hourly rate is just £4.

3. A Slovakian cleaner has had a successful business for the last 4 years. She cleans customers homes as well as commercial offices. Her husband is made redundant and they have to sell their house although it has negative equity as the house prices in the area had taken a dive. They rent a cheap terraced house in a nearby council estate. Soon afterwards she becomes a victim of a number of hate crimes - facial harassment, destruction of property, etc. As a result she starts suffering from depression, which is made worse after Brexit. She wants to go back to Slovakia, but the children have settled in school and her husband has taken loans and started studying for a university degree. The Slovakian cleaner starts to avoid being in public and develops social anxiety. She drops her house cleaning jobs and only keeps some of the office cleaning contracts. She can't bear living in their current home, but they can't afford to move and they are refused any help with rehousing by the local authority. As a result she struggles with getting her work done which takes her longer to do and she earns below the MET and below the national minimum wage.

Are these EEA nationals not exercising treaty rights as self-employed?

[britkiwi]

So for those who aren't claiming benefits and geniunely are working say part time hours it would seem that they get MET/PET tested too.

That's hardly fair when there are people who do want to work even if it is only part time or can only work part time due to child care arrangements.

I'm one of those people- I've been offered a job where the contracted hours ar 15 per week but there is scope to work up to 36.5 hours per week.

I don't know whether to submitt my application as a jobseeker or send in my job offer letter and explain that I am contracted to work 15 hrs per week but have the scope to do 36.5 hrs per week?

It seems that HO like to get people between a rock and a hard place.

[victoria_2010]

If an EEA national is working part time but actively seeking a full time job, could they be considered both a worker and a jobseekers at the same time?

Is an EEA national on a Zero-hour contract who works 15 hours a week considered a worker for PR purposes?

[noajthan]

If an EEA national is working part time but actively seeking a full time job, could they be considered both a worker and a jobseekers at the same time?

Is an EEA national on a Zero-hour contract who works 15 hours a week considered a worker for PR purposes?

EU law does not specify hours or salary.

Even if someone is performing two or more economic activities at once they can only fall into one category of qualified person at a time.
To be considered a jobseeker evidence of jobseeking would have to be provided.

[Richard W]

I'm one of those people- I've been offered a job where the contracted hours ar 15 per week but there is scope to work up to 36.5 hours per week.

That looks like genuine and effective work. In the precursor to Kempf (Case C-139/85) the Dutch courts found that giving 12 music lessons a week constituted work. It is formally accepted that a zero-hours job may be genuine and effective work.

Indeed, I would go so far as to day that by Megner and Scheffel (Case C-444/93), doing such work does make one a 'worker'.

For further reading matter, try Who is deemed a worker under EU law?.

For the self-employed, there is the problem that there is less definition, and the arrangements that establish that someone is in employment are irrelevant for the self-employed.

[britkiwi]

Surely the HO must somehow work out on average I might earn over a year? ..there will be weeks where I only work the 15 hours and then right up to the 36.5 hours

I mean I will be working for a massive UK supermarket so there will be no issue of whether the work is genuine and effective!

[Richard W]

Surely the HO must somehow work out on average I might earn over a year? ..there will be weeks where I only work the 15 hours and then right up to the 36.5 hours

I mean I will be working for a massive UK supermarket so there will be no issue of whether the work is genuine and effective!

Your earning level should be irrelevant - your job will meet the key conditions even if you rarely do more than 15 hours in a week. While the average might be relevant for in-work benefits, it will not affect whether you are a 'worker'.

[Richard W]

The Polish builder is clearly exercising treaty rights. Moreover, the bad debts shouldn't be any worse in principle than buying a new van for cash, though I believe the tax treatment is different - I think the van would be written off over several years.

I believe the Dutch decorator is also exercising treaty rights. However, I suspect he wouldn't be able to work for his own company - wouldn't he fall foul of the minimum wage regulations? Poorly paid full-time workers are still workers, and I believe 30 hours would be close enough to full-time for him to be a 'worker' if he were employed. The work is clearly not marginal, and is hardly likely to be ancillary.

The Slovak cleaner is a more difficult case, and I hesitate to call it. She could be in serious immigration trouble if she had a settled non-EEA national (e.g. British) for a husband. Otherwise, she may depend on a derivative right of residence from the children being in school.

The MET is supposed to be a preliminary test. If income is above the level, accept the claimed status. If below, then investigate further. Used this way, I believe it's use is actually legal. A country is allowed to be generous in its interpretation of the directive. It's in the further investigation that breaches of the directive are likely.