EEA Permanent Residence, time spent before qualifying period

[foxmulder]

hi All

I was hoping that one of you would kindly answer the question about my case and what do disclose to Home Office.

My history is
- I arrived in Britain in 2009
- Worked odd jobs (part-time bar jobs with cash in hand) and was saving for my masters degree which stareted a year after (2010).
- I studied until 2011 and then started working full time straight after.
- From that time I have been working legally for the period of past 5 years.

Before working I had no comprehensive sickness insurance nor was registered with the home office for work registration programme during the assension period.

My question is which date do I disclose on my application as first arriving in the UK. The one in 2009 or the beginning of qualifying period in 2011 when I started working full-time?

In the following pages there is a question whether I did a degree, but if I did not have any CSI should I disclose the course and University? Will the home office inquire about my finances or that I worked part time and odd jobs?

Should I just omit this detail and say that for 2 years before the start of my qualifying period I was doing odd jobs every now and then?

Your help will be much appreciated!
Thanks

[noajthan]

2009 if first entry was 2009.

There are questions about your activities, just answer them.

Give detail of student years.
Answer question about CSI.

Similarly for WRS etc if A8/A2.

They are not trick questions and you can't game the system to tell what you think is the right answer.
Would you do that in a job application?

There is no 'when is your qualifying period?' question;
how would you know.
Let caseworker figure it out - she does it every day.

Read and sign Declaration.

[foxmulder]

Thanks noajthan for your detailed answer.

I intend to attach a covering letter detailing all that and let them know what my situation was.

Do you know from experience or know whether I might have any issues getting my PR or later on applying for a passport given my circumstances? I mean working sporadically and lack of CSI?

[noajthan]

Thanks noajthan for your detailed answer.

I intend to attach a covering letter detailing all that and let them know what my situation was.

Do you know from experience or know whether I might have any issues getting my PR or later on applying for a passport given my circumstances? I mean working sporadically and lack of CSI?

Working sporadically means you fail the genuine and effective (EU) test and probably the UK's MET criteria too.
So such work will not have kept your PR clock running.
Working unregistered (eg if you needed WRS) means such work is wasted in terms of acquiring PR.

Similarly your PR clock will gave been stopped during carefree student years with no CSI (unless you had an alternative or exemption).
Such time disregarded (PR clock reset to zero).

There is no 'good character' test on the EU route so you will not be penalised (at this stage) for
such lapses.

Whether there are consequences (for no CSI/WRS etc) if you have ambitions for citizenship (vital step before passport) remains to be seen.
But with Brexit looming you need to secure your status so that shouldn't stop you applying for confirmation of PR.

[foxmulder]

Another few questions. I have listed all the countries I have visited over the past 5 years that I have visited personally (not work related). However, during this time I must have had about 20 work related trips. Should I list them as well or am I exempt from listing them?

Will I be penalised on my PR or CItizenship test for missing something, or is this only to my best knowledge?

Can this information be requested from the home office or UKBA as they obviously keep track of when one travels in and out of the country?

[noajthan]

EU doesn't distinguish between work and pleasure trips.
List them all.
Check with office, email and bank statements for relevant dates of work trips.
File month/year if you can't remember every day.

Despite prevalence of CCTV UK is not a police state and not all your trips may have made it to 'Big Brother'.
Honest mistakes permitted at least for EU PR application.

[foxmulder]

Well, I heard that my freind's friend when applying for PR stated in the form that he works for a company that gives him 25 days annual leave. Therefore all absences from the UK during the qualifying period of past 5 years could not have exceeded 125 days. Apparently his applications was successful. Any thoughts of this approach or do you know of cases where it worked?

[noajthan]

Well, I heard that my freind's friend when applying for PR stated in the form that he works for a company that gives him 25 days annual leave. Therefore all absences from the UK during the qualifying period of past 5 years could not have exceeded 125 days. Apparently his applications was successful. Any thoughts of this approach or do you know of cases where it worked?

Ask friend's friend about that.

In meantime follow the current PR guidance.
You have to prove any absences were within prescribed limits.

EU law allows absences of up to 6 months in any 12 months period.
Or a one-off unlimited absence due to an exceptional reason such as overseas military service (of the legal kind).
Or up to one year absence for pregnancy,/childcare, study leave, work placement (or perhaps a combination of these).

You need to show you did not leave UK for such reasons and for such periods of time by submitting adequate proof of residence in UK.

Especially when you say you have 20 business trips under your belt quite apart from any annual leave you may have enjoyed abroad.
(I have had business trips that have lasted 6 or 9 months or a year at a time - maybe you have too).

[foxmulder]

Thanks again.

I calculated that for the past 5 years of my full-time qualifying period I have been abroad for 56 days in total. Most of these 56 days were business trips to Germany,Italy and France.

It will be very hard for me to dig out a few odd trips that I had prior to 2011 for the period [2009-2011]. The question is: If I do not provide these will the home office care? I thought I need to only justify the past 5 years as not being away for too long. The time before that I might have been abroad or out of the country so why do I need to account for that time?

[noajthan]

Thanks again.

I calculated that for the past 5 years of my full-time qualifying period I have been abroad for 56 days in total. Most of these 56 days were business trips to Germany,Italy and France.

It will be very hard for me to dig out a few odd trips that I had prior to 2011 for the period [2009-2011]. The question is: If I do not provide these will the home office care? I thought I need to only justify the past 5 years as not being away for too long. The time before that I might have been abroad or out of the country so why do I need to account for that time?

PR is not necessarily about the last 5 years. Its about whenever your qualifying period is and also about the period spent in UK after that.

Caseworker figures that period out and decides whether confirm you have acquire PR from the information and evidence you submit.

You don't simply tell a caseworker what to do just for them to rubberstamp it.
They are empowered to give benefit of doubt if on balance of probability you were in UK.
For example if you didn't have a valid passport at some point in time so its clear you couldn't have travelled.

Submit what you know and explain the reason for any gaps in a cogent cover letter.
56 days is within limits anyway so all should be well.

[foxmulder]

Despite prevalence of CCTV UK is not a police state and not all your trips may have made it to 'Big Brother'.

I must say I am a bit surprised by that statement as I thought that UKBA's core responsibillity was exactly that, to check people getting in/out of the country and if necessary share this information with other agencies. I mean, they scan your passport/id card every time you travel and I am sure the airlines share this information too on checking-in online etc.

Whether there are consequences (for no CSI/WRS etc) if you have ambitions for citizenship (vital step before passport) remains to be seen.

I will of course disclose this fact on my naturalisation AN application. I was a bit care-free during University and before starting my full-tiem job. Do you reckon such jobs would have an impact on good character requirement? They do not explicitly state such things in their good character requirement guidance. The home office seem to be more concerned with things like money laundering, terrorism and criminal offences. Do you know if they do cross-checks with HRMC or go directly the employer?

Many thanks again.

[noajthan]

Despite prevalence of CCTV UK is not a police state and not all your trips may have made it to 'Big Brother'.

I must say I am a bit surprised by that statement as I thought that UKBA's core responsibillity was exactly that, to check people getting in/out of the country and if necessary share this information with other agencies. I mean, they scan your passport/id card every time you travel and I am sure the airlines share this information too on checking-in online etc.

Whether there are consequences (for no CSI/WRS etc) if you have ambitions for citizenship (vital step before passport) remains to be seen.

I will of course disclose this fact on my naturalisation AN application. I was a bit care-free during University and before starting my full-tiem job. Do you reckon such jobs would have an impact on good character requirement? They do not explicitly state such things in their good character requirement guidance. The home office seem to be more concerned with things like money laundering, terrorism and criminal offences. Do you know if they do cross-checks with HRMC or go directly the employer?

Many thanks again.

Its a UK BF responsibility not UKBA (who don't exist anymore).

On first point, hard to say without someone 'on the inside'.
A SAR to UKVI may prove of interest in terms of what is disclosable to you under FOI rights.

On second point, you can get into the head of caseworker assessing good character here:
https://www.gov.uk/government/uploads/s ... _D_v02.pdf
You can see compliance with previous visa requirements and tax obligations (etc etc) play a part in good character.

[foxmulder]

I have found the information I needed.

Their financial affairs were not in appropriate order. For example, they have failed to pay taxes for which they were liable. For more details, see 'Section 6 - Financial Soundness'

• 6.1 Bankrupcy and liquidation
  6.1.2 Liquidation
  6.1.3 Deciding the Case
  6.2 Debt
  6.3 Dishonesty in Relation to Public Funds
  6.4 Non-Payment of Council tax

It does not state explictly anything about income tax, only council tax seems to be a big issue. Do you think it is still worth applying even though my application might be rejected on these basis? Do you I risk prosecution for not paying income tax to HRMC at that time?

Can I be banned for the period of 10 years for disclosing it?

[noajthan]

Section 9 of document relates to immigration offences (which would include breach of visa conditions, such as working when not authorised to do so or working excess hours etc etc).

Remember this is all about naturalisation - no such issues when applying to confirm PR.

I don't know about prosecutions; not many members report being prosecuted.
Many report on their bans for various violations in connection with naturalisation and good character.
(Anyway, for tax issues HMRC usually imposes a fine and some sort of payment plan is arranged).

Bans may be imposed for non-disclosure of material facts too, namely deception, as well as for (or instead of) the original violation/offence.

[foxmulder]

Understood there is no good character requirement for PR so it will not matter that much. The naturalisation is an internal Home office where they are not bound by the EU legislation as in the case of PR.

Also it was a minimum paid part-time job and I do not reckon that I would have earned nearly enough to exceed the Personal Allowance of up to £11,000 for having to pay income tax. Would that still constitute a breach? I think I will need a solictors advice on this actually.

[noajthan]

Understood there is no good character requirement for PR so it will not matter that much. The naturalisation is an internal Home office where they are not bound by the EU legislation as in the case of PR.

Also it was a minimum paid part-time job and I do not reckon that I would have earned nearly enough to exceed the Personal Allowance of up to £11,000 for having to pay income tax. Would that still constitute a breach? I think I will need a solictors advice on this actually.

Suggest focus on securing PR status.
In PR context, non-payment of tax (or NI) merely prompts further investigation to determine if the worker really was undertaking genuine and effective work.

Take other issues you may have to an appropriate professional and/or resolve asap so you maintain a clean slate.

[foxmulder]

In PR context, non-payment of tax (or NI) merely prompts further investigation to determine if the worker really was undertaking genuine and effective work.

Sorry for being fixated on the time frame thing but I have to ask. In the PR do they also care about the non-payment of Tax or NI in the period not counting towards the 5 year period? For instance in the case of sesonal or sporadic work where CSI was not available?

Also I found this which gives me an indication of how such cases are treated in:

European Economic Area nationals qualified persons
This guidance applies and interprets the Immigration (European Economic Area) Regulations 2006 (as amended). These Regulations make sure the UK complies with its duties under the Free Movement of Persons Directive 2004/38/EC.

Code: Select all

Assessing whether the EEA national is a ‘worker’
While there is no minimum amount of hours which an EEA national must be employed for in order to qualify as a worker, the employment must be genuine and effective and not marginal or supplementary.(...)

Marginal means the work involves so little time and money that it is unrelated to the lifestyle of the worker. It is supplementary because the worker is clearly spending most of their time on something else, not work.

For example a student who gets a job behind the student union bar for two hours a week is actually a student, their work is marginal and supplementary to their actual role as a student.

You must carefully assess each case on its own merits to see whether the EEA national’s claimed employment is genuine and effective.
Relevant considerations include:
 is there a genuine employer-employee relationship
 is the work regular or intermittent
 how long has the EEA national been employed for
 number of hours worked
 level of earnings.(...)

Case example 2
Mr B is a Dutch national and has recently started work washing cars for a relative. He works cash in hand and has no employment contract. He claims to earn £100 each week and tries to supplement this with odd jobs elsewhere when he can. He has no bank account and [b]cannot show any evidence of tax or NI payments[/b]. In this scenario, it is more likely than not, that Mr B’s work is [b]marginal and ancillary[/b].

Tax and National Insurance (NI)
Compliance with the requirement to pay tax and NI is a domestic matter for the UK authorities and failure to comply does not stop an EEA national from qualifying as a worker.

Page 13 of 66 European Economic Area nationals qualified persons – version 3.0 Valid from 7 April 2015
However, non-compliance may indicate that the EEA national is in ‘marginal and ancillary’ employment. This cannot be the sole basis on which you determine that the EEA national is not exercising treaty rights as a worker, but is a factor which can be taken into consideration when making this assessment.

If an EEA national appears to be doing an employment activity which is genuine and effective, but is not paying tax and NI, [b]you must accept they are exercising Treaty rights as a worker[/b]. However, in these circumstances you must report the employer to Her Majesty’s revenue and customs (HMRC) for non-compliance with the UK tax and NI requirements.

[noajthan]

In PR context, non-payment of tax (or NI) merely prompts further investigation to determine if the worker really was undertaking genuine and effective work.

Sorry for being fixated on the time frame thing but I have to ask. In the PR do they also care about the non-payment of Tax or NI in the period not counting towards the 5 year period? For instance in the case of sesonal or sporadic work where CSI was not available?

The caseworker determines the qualifying period.
If work was not genuine and effective in some period, for example if hours and income were so low that tax was not liable (and you were actually living by some other means so this 'work' was supplementary and marginal to that other activity) then it will simply be ignored;
in that case you would not be classified as a worker qualified person and that period did not contribute to your PR clock.
But EU law does not demand that you pay tax or NI (in this context).

Over and beyond the cleaner, purer EU law, HO will probably also apply its MET/PET (tests) to your income to see if she agrees you were indeed a worker qualified person.

This is how you are assessed as a qualified person (in whichever combination of categories):
https://www.gov.uk/government/uploads/s ... _clean.pdf

Regarding UK's MET:
https://www.freemovement.org.uk/using-m ... ne-worker/