Permanent resident break between rights to reside

[Olimpia]

Hi all. May name is Olimpia and I really need your help please.
My story is : in 16 march 2016 I gave birth to my wonderful boy Oliver , and soon I claimed child benefit which was rejected by HMRC , telling me I have no right to reside in the UK. I made appeal to the court based on the next grounds that I was a qualified person for 5 consecutive years as an EEA citizen.
From 10 March 2011 -15 April 2012 I was employed
From 21April 2012- 15 March 2013 Employed with a short gap 6 days between these 2 jobs .
From 07 April 2013- until 24 August 2015 self employed , from that date I was on ESA contribution based payed based on an illness .
The sort history's of the hearings : first the HMRC accepted that I was a qualified person until 24 August 2015 but no longer.
Now a concession was accepted that I kept my status as a self employed until 16 march 2016 when I gave birth due to the illness that I had which is called Hyperemesis gravidarum.
But they stills deny my 5 years of continuous qualified person because of the gap of 3 weeks between my employee and self employed status.
I read online that in the cases of a break between the reside statuses less than 30 days in 12 months it's acceptable, but I can't find that law.
Apart that in the break between statuses my husband was a worker , so my question is can I retain my status as a qualified person as a family member for that period of 3 weeks ?
Both of us me and my husband were registered with Home office and had Blue card since 9 march 2011!
Now I have to wait for next hearing and I need to know if my arguments are legitimate!!
Thank you very much!!!

[noajthan]

Moved to EEA forum.

Ancecdotally short breaks between activities are accepted.
i have seen that in a DWP briefing paper on EEA citizens and their rights.
Maybe I can find the link - stand by.

And yes, you may claim to have been dependent on your Union citizen spouse if he was a qualified (or settled) person at the relevant time.
Or in fact for any period that is useful to you and for which you have good supporting evidence.

This is how you would be assessed as a direct family member:
https://www.gov.uk/government/uploads/s ... als-v4.pdf

Don't forget that for any periods of maternity leave (sandwiched by time as a worker) it is possible to retain your status as a worker too.

And if becoming self-employed suggest look at the date such self-employment started - was there really a gap?
If you were preparing to be self-employment (and can prove it) then that is selfemployment too.

[Olimpia]

Hmrc said that on maternity allowance I can't retain my self employed status,because a worker is an employee! but for me it's enough until 11 march 2016 to have s5 consecutive years .
Yes my husband was a qualified person on that time when they denied my status as a qualified person, being a worker until 21 October 2013 ,basically I need that 3 weeks to cover. He has P60 and weekly payslips for that period as well, and in the first response HMRC admitted that my husband was working from 5 June 2011- October 2013 and also the taxes and national insurance contributions was paid!!
Thanks again for your help!

[noajthan]

Hmrc said that on maternity allowance I can't retain my self employed status,because a worker is an employee! but for me it's enough until 11 march 2016 to have s5 consecutive years .
Yes my husband was a qualified person on that time when they denied my status as a qualified person, being a worker until 21 October 2013 ,basically I need that 3 weeks to cover. He has P60 and weekly payslips for that period as well, and in the first response HMRC admitted that my husband was working from 5 June 2011- October 2013 and also the taxes and national insurance contributions was paid!!
Thanks again for your help!

Maternity leave is more clearcut for workers.

If hubby is an EEA citizen then he can certainly be your sponsor as you say he was a worker.
Good luck.

[Olimpia]

He was a worker in the time when they deny my retained status 15 march 2013- 7 April 2013 , but not when I was on maternity leave. All that I need to know if I can retained my status during that period when I was between changing rights to reside from employment to Self-employed, as a family member , if my husband was a worker at that time , but he didn't have permanent resident?
Those 3 weeks it's all that hmrc deny now.
Thank you.

[noajthan]

He was a worker in the time when they deny my retained status 15 march 2013- 7 April 2013 , but not when I was on maternity leave. All that I need to know if I can retained my status during that period when I was between changing rights to reside from employment to Self-employed, as a family member , if my husband was a worker at that time , but he didn't have permanent resident?
Those 3 weeks it's all that hmrc deny now.
Thank you.

Yes, hubby can sponsor you for that time period. He doesn't have to have had PR, being a qualified person is enough.

[Olimpia]

Thank you for your time, I will keep you updated with the case. I think I have a good case:)

[noajthan]

Thank you for your time, I will keep you updated with the case. I think I have a good case:)

Here's the only guidance I'm aware of that refers to gaps between categories of qualified person.

Switching between alternate rights to reside
20. Where an EEA national switches from one right to reside status to another,
discretion may be used to allow gaps of up to 30 days between statuses

Health warning: its DWP guidance not HO/UKVI guidance and is not legally binding as it does not come from EEA Regulations (but it shows a view endorsed by a Government department).
https://www.gov.uk/government/uploads/s ... 8-2015.pdf
- page, 6; para 20.

And regarding maternity leave:
https://www.freemovement.org.uk/eu-citi ... d-reasons/

[Olimpia]

And regarding maternity leave

I mentioned the St Prix case but HMRC disagree , saying that it is applying it to workers and a Self-employed person it's not a worker. It's a shame because it's a discrimination between employed and Self-employed pregnant women. In my opinion all should have the same rights as long as they are paying their taxes and national insurance contributions.
I hope I will be ok as a family member for those 3 weeks.

[Olimpia]

Hi all.
Just to let you know that I won my appeal. The tribunal found that I have a permanent right to reside for exercising my treaty rights for 5 continuous years.
They found that I kept my self employed status during my illness , illness that lasted until I gave birth to my baby 16 March 2016 so in 11 March 2016 I attained the right of PR.
Thanks all for your time.