General Home Office policy on exceptional casesHome Office policy states that it is only in exceptional cases
It is for the applicant to demonstrate as part of their application what the exceptional circumstances or compassionate factors are in their case. Each case must be decided on its individual merits. Entry clearance or a grant of leave outside the Immigration Rules is likely to be appropriate only rarely and consideration should be given to interviewing both the applicant and sponsor where further information is needed to make an informed decision. The following examples may lead to a grant of leave outside the rules:Realistically, where a case falls outside these criteria it is very likely to be refused.
- an applicant who cannot qualify to join parents under the rules because they are over 18 but all the following apply:
- their immediate family, including siblings under 18 qualify for family reunion and intend to travel, or have already travelled, to the UK
- they would be left alone in a conflict zone or dangerous situation
- they are dependent on immediate family in the country of origin and are not leading an independent life
- there are no other relatives to turn to and would therefore have no means of support and would likely become destitute on their own
- where an applicant is an unmarried or same-sex partner and they meet all the requirements of paragraph 352AA with the exception that the sponsor was granted refugee status or humanitarian protection status before 9 October 2006
- where an applicant is an unmarried or same-sex partner and they meet all the requirements of paragraph 352AA except the requirement to live together and the caseworker is satisfied that they have evidenced that this would have put them in danger
Child over 18If the child seeking entry under the family reunion rules is over 18 at the date of application, or the application is by a parent or grandparent of a refugee, the application is very likely to be refused. These relationships fall outside the Immigration Rules on refugee family reunion.An application under the main Immigration Rules and Appendix FM as an Adult Dependent Relative faces additional hurdles, has to be paid for, is extremely expensive and very few such applications succeed.Even though the rules make no provision for this category of family members, in 2016 the Home Office introduced an improved refugee family reunion policy. The treatment of adult children of refugees who have managed to reach the UK. They are still to be refused under the Immigration Rules, which only permit the entry of children under the age of 18, but the policy goes on to state:
The caseworker must go on in every case to consider whether there are exceptional or compassionate circumstances, including the best interests of other children in the family, which warrant a grant of leave to enter or remain outside the Immigration Rules on Article 8 grounds. These could be that the applicant would be left in a conflict zone or dangerous situation and become destitute on their own; have no other relatives that they could live with or turn to for support in their country; are not leading an independent life and the rest of the family intend to travel to the UK.There will be few who benefit from the new policy but there will be some.If these requirements cannot be satisfied the only other possibility is to rely on human rights arguments. However, very few human rights arguments outside the Immigration Rules ever succeed.[su_box title="Example"]David's father fled to the UK and successfully claimed asylum. David was 17 at the time his father left but has since then turned 18. He cannot succeed under the refugee family reunion rules. If he is to join his father in the UK he would somehow need to succeed under the policy for other family members, under the virtually impossible Adult Dependant Relative rules or on human rights arguments (also unlikely) or apply in his own right as a student or similar.[/su_box]
De facto adoptionsThe Home Office policy on children who have in effect been adopted by a person now recognises as a refugee is as follows:
A de facto adoption is one where a child has been incorporated into another family than the one into which they were born, and has been cared for in that family. Unlike formal adoptions which can be established on the basis of documentary evidence, de facto adoptions are likely to require an assessment of the overall picture of the circumstances surrounding the ‘adoption’, often with little or no documentary evidence. The onus to establish a de facto adoption is on the applicant.There is no provision in the Immigration Rules to consider a sponsor who has requested family reunion for a child who is the subject of a de facto adoption. Applications involving de-facto adoptions must be refused under the rules and caseworkers must then go on to consider the family exceptional circumstances guidance or whether there are any compassionate factors which my warrant a grant of leave outside the Immigration Rules. Also see: Other applications for those not eligible for family reunion.
Parents and siblingsHome Office policy on parents and siblings of a recognised refugee is as follows:
The parents and siblings of a child who have been recognised as refugees are not entitled to family reunion under the Immigration Rules. Where an application does not meet the requirements of the Immigration Rules, the caseworker must consider the family exceptional circumstances guidance or consider whether there are any compassionate factors which may warrant a grant of leave outside the rules. Each case must be considered on its individual merits and include consideration of the best interests of the child in the UK. As the Immigration Rules are specifically designed to meet our obligations under the European Convention on Human Rights (ECHR) in respect of family or private life, it is not expected there will be significant numbers granted outside the rules. However, it is important that evidence relating to exceptional circumstances is carefully considered on its individual merits.It seems unlikely that any such application would be successful but applications are free, it is worth trying and it may be possible to win on appeal in strong compassionate cases. [post_title] => Other family members including children over the age of 18 [post_excerpt] => [post_status] => publish [comment_status] => closed [ping_status] => closed [post_password] => [post_name] => family-members-including-children-age-18 [to_ping] => [pinged] => [post_modified] => 2017-03-22 17:37:20 [post_modified_gmt] => 2017-03-22 17:37:20 [post_content_filtered] => [post_parent] => 0 [guid] => https://www.freemovement.org.uk/?post_type=course_unit&p=48106 [menu_order] => 0 [post_type] => course_unit [post_mime_type] => [comment_count] => 0 [filter] => raw ) WP_Post Object ( [ID] => 47647 [post_author] => 23 [post_date] => 2017-03-19 18:31:32 [post_date_gmt] => 2017-03-19 18:31:32 [post_content] => We are grateful for any feedback on the course., thank you![gravityform id="1" title="true" description="true" ajax="true"] [post_title] => Quiz and feedback [post_excerpt] => [post_status] => publish [comment_status] => closed [ping_status] => closed [post_password] => [post_name] => quiz-and-feedback-2 [to_ping] => [pinged] => [post_modified] => 2017-03-19 18:31:32 [post_modified_gmt] => 2017-03-19 18:31:32 [post_content_filtered] => [post_parent] => 0 [guid] => https://www.freemovement.org.uk/?post_type=course_unit&p=47647 [menu_order] => 0 [post_type] => course_unit [post_mime_type] => [comment_count] => 0 [filter] => raw ) WP_Post Object ( [ID] => 47645 [post_author] => 23 [post_date] => 2017-03-19 17:05:04 [post_date_gmt] => 2017-03-19 17:05:04 [post_content] => Where a family member is not adjudged to have retained rights of residence under Directive 2004/38 then it may in some cases be possible to fall back on derived rights of residence. These do not lead to the acquisition of permanent residence in EU law but something may be better than nothing.Derivative rights of residence are rights of residence for non-EEA nationals who derive a right to reside in the EEA from an EEA citizen outside the terms of Directive 2004/38. These rights have been developed in a series of judgments of the CJEU:
- Chen C-200/02
- Baumbast C-413/99
- Ibrahim and Teixeira C-480/08
- Zambrano C-34/09
- McCarthy C-434/09
- Dereci C-256/11
- Iida C-40/11
- NA C-115/15
- CS v UK C-304/14 and Marin v Spain C-165/14
- Parent of a self sufficient child (Chen)
- Parent of a child in education (Baumbast, Ibrahim and Teixeira)
- Parent of a child who is an EU or British citizen (Zambrano, McCarthy, Dereci, Iida)
Derivative right to reside16.—(1) A person has a derivative right to reside during any period in which the person—As well as the regulations, which largely reflect CJEU case law, there have been several UK cases on derivatives of rights of residence, particularly on Zambrano rights.In Harrison (Jamaica) v Secretary of State for the Home Department  EWCA Civ 1736 the Court of Appeal reviewed the position following Zambrano, McCarthy, Dereci and Iida.The parties agreed that the application of the Zambrano test requires a court to focus on the question whether as a matter of reality the EU citizen would be obliged to give up residence in the EU if the non EU national were to be removed from the EU. Where the parties disagreed was over whether the Zambrano principle can apply where an EU citizen is not forced, as a matter of substance, to follow the non EU national out of the EU, but where their continuing residence in the EU is affected in some sense because, for example, the quality of life is diminished. The Secretary of State maintained that the case law indicates that nothing short of forcing departure will satisfy the Zambrano test and the appellants argued that diminution in quality of life by deprivation of a parent would suffice.Lord Justice Elias gives the leading judgment and prefers the arguments of the Secretary of State while recognising that EU law may develop to give greater protection to a citizen’s right of residence than it does at present.The position following Harrison therefore seems to be that a situation in which the EU citizen will be forced to leave the country of residence will succeed under Zambrano (such as where the sole carer or both parents of an EU citizen child face removal) but where there is an element of choice in whether the EU citizen leaves such a situation will fail. [post_title] => Derived rights of residence: quick overview [post_excerpt] => [post_status] => publish [comment_status] => closed [ping_status] => closed [post_password] => [post_name] => derived-rights-residence-quick-overview [to_ping] => [pinged] => [post_modified] => 2017-03-19 17:05:04 [post_modified_gmt] => 2017-03-19 17:05:04 [post_content_filtered] => [post_parent] => 0 [guid] => https://www.freemovement.org.uk/?post_type=course_unit&p=47645 [menu_order] => 0 [post_type] => course_unit [post_mime_type] => [comment_count] => 0 [filter] => raw ) WP_Post Object ( [ID] => 47639 [post_author] => 23 [post_date] => 2017-03-19 16:49:17 [post_date_gmt] => 2017-03-19 16:49:17 [post_content] =>
(a) is not an exempt person; and
(b) satisfies each of the criteria in one or more of paragraphs (2) to (6).(2) The criteria in this paragraph are that—
(a) the person is the primary carer of an EEA national; and
(b) the EEA national—
(i) is under the age of 18;
(ii) resides in the United Kingdom as a self-sufficient person; and
(iii) would be unable to remain in the United Kingdom if the person left the United Kingdom for an indefinite period.(3) The criteria in this paragraph are that—
(a) any of the person’s parents (“PP”) is an EEA national who resides or has resided in the United Kingdom;
(b) both the person and PP reside or have resided in the United Kingdom at the same time, and during such a period of residence, PP has been a worker in the United Kingdom; and
(c) the person is in education in the United Kingdom.(4) The criteria in this paragraph are that—
(a) the person is the primary carer of a person satisfying the criteria in paragraph (3) (“PPP”); and
(b) PPP would be unable to continue to be educated in the United Kingdom if the person left the United Kingdom for an indefinite period.(5) The criteria in this paragraph are that—
(a) the person is the primary carer of a British citizen (“BC”);
(b) BC is residing in the United Kingdom; and
(c) BC would be unable to reside in the United Kingdom or in another EEA State if the person left the United Kingdom for an indefinite period.(6) The criteria in this paragraph are that—
(a) the person is under the age of 18;
(b) the person does not have leave to enter, or remain in, the United Kingdom under the 1971 Act;
(c) the person’s primary carer is entitled to a derivative right to reside in the United Kingdom under paragraph (2), (4) or (5); and
(d) the primary carer would be prevented from residing in the United Kingdom if the person left the United Kingdom for an indefinite period.(7) In this regulation—
(a) “education” excludes nursery education but does not exclude education received before the compulsory school age where that education is equivalent to the education received at or after the compulsory school age;
(b) “worker” does not include a jobseeker or a person treated as a worker under regulation 6(2);
(c) an “exempt person” is a person—
(i) who has a right to reside under another provision of these Regulations;
(ii) who has the right of abode under section 2 of the 1971 Act(1);
(iii) to whom section 8 of the 1971 Act(2), or an order made under subsection (2) of that section(3), applies; or
(iv) who has indefinite leave to enter or remain in the United Kingdom.(8) A person is the “primary carer” of another person (“AP”) if—
(a) the person is a direct relative or a legal guardian of AP; and
(i) the person has primary responsibility for AP’s care; or
(ii) shares equally the responsibility for AP’s care with one other person who is not an exempt person.(9) In paragraph (2)(b)(iii), (4)(b) or (5)(c), if the role of primary carer is shared with another person in accordance with paragraph (8)(b)(ii), the words “the person” are to be read as “both primary carers”.(10) Paragraph (9) does not apply if the person with whom care responsibility is shared acquired a derivative right to reside in the United Kingdom as a result of this regulation prior to the other person’s assumption of equal care responsibility.(11) A person is not be regarded as having responsibility for another person’s care for the purpose of paragraph (8) on the sole basis of a financial contribution towards that person’s care.(12) A person does not have a derivative right to reside where the Secretary of State or an immigration officer has made a decision under regulation 23(6)(b), 24(1), 25(1), 26(3) or 31(1), unless that decision is set aside or otherwise no longer has effect.
Maternity and paternity leaveWhere a pregnant worker ceases employment for maternity related reasons and then recommences work within 12 months of giving birth, she will retain the status of worker. This was established in the case of St Prix (Case C-507/12) and is reflected now in UK case law as well: see SSWP v SSF and others  UKUT 0502 (AAC) and Weldemichael and another (St Prix C-507/12; effect)  UKUT 540 (IAC).See further Free Movement blog post: How long do pregnant women retain EU worker status?Despite St Prix and the Upper Tribunal cases, Home Office policy remains that a "reasonable period" within which a woman must return to work in order to retain worker status is 15 weeks from childbirth: European Economic Area nationals: qualified persons.There is no direct case law on paternity or adoption leave but similar arguments could be employed. Given that the UK Government fought St Prix and the domestic UK cases, such arguments might well have to be fought in court, unfortunately.
Other gaps in qualifying residenceThe usual understanding of "absence" in this context is "absence from the UK", i.e. abroad. However, it is strongly arguable that the same approach should be applied to periods of residence in the UK but without a right of residence. This might apply, for example, a person who ceases being a worker, job seeker and so on, or who has a gap in their comprehensive sickness insurance coverage.There is no case law directly on this issue but the case of Dias C-325/09 seems very helpful by analogy. In that case, a period of two years of living in the UK but not as a qualified person was held to be equivalent to absence from the UK which therefore disqualified a person from retaining what would otherwise have been their right of permanent residence, acquired before the commencement of Directive 2004/38. [post_title] => Gaps in qualifying residence within UK [post_excerpt] => [post_status] => publish [comment_status] => closed [ping_status] => closed [post_password] => [post_name] => gaps-qualifying-residence-within-uk [to_ping] => [pinged] => [post_modified] => 2017-03-19 16:56:08 [post_modified_gmt] => 2017-03-19 16:56:08 [post_content_filtered] => [post_parent] => 0 [guid] => https://www.freemovement.org.uk/?post_type=course_unit&p=47639 [menu_order] => 0 [post_type] => course_unit [post_mime_type] => [comment_count] => 0 [filter] => raw ) WP_Post Object ( [ID] => 47640 [post_author] => 23 [post_date] => 2017-03-19 16:44:03 [post_date_gmt] => 2017-03-19 16:44:03 [post_content] => Until now, Irish citizens have broadly been treated as if they were simply EEA nationals. The only obvious special treatment in immigration status terms was that Irish citizens are considered to have no restrictions on their leave as soon as they have “ordinary residence”. This qualifies them for British citizenship more rapidly than for EEA nationals and has nationality implications for their children, who may automatically be born British.This also means there is really no point at all in Irish citizens applying for permanent residence under EU law, even though they would qualify providing they are not dual national British citizens.The basis for this treatment is legally unclear, however; in fact there seems to be no clear legal basis for it.In addition, under section 1(3) of the Immigration Act 1971 and the Immigration (Control of Entry through Republic of Ireland) Order 1972, Irish citizens are exempt from immigration control when entering from Ireland.The basic provision concerning the status of Irish citizens in Britain is the Ireland Act 1949, which was passed when the Irish state withdrew definitively from the Commonwealth. Section 2(1) of the 1949 Act declares that
‘notwithstanding that the Republic of Ireland is not part of [Her] Majesty’s dominions, the Republic of Ireland is not a foreign country for the purposes of any law in force in any part of the UK.’It goes on to provide that
‘references in any Act of Parliament, other enactment or instrument whatsoever … to foreigners, aliens [etc..] … shall be construed accordingly.’However, this is not interpreted as meaning that Irish citizens are entirely exempt from immigration law. Professor Bernard Ryan takes the view that Irish citizens have been subject to UK immigration laws since the Commonwealth Immigrants Act 1962 and are now potentially subject to the Immigration Act 1971, for example the deportation regime. [post_title] => Status of the Irish [post_excerpt] => [post_status] => publish [comment_status] => closed [ping_status] => closed [post_password] => [post_name] => status-of-the-irish [to_ping] => [pinged] => [post_modified] => 2017-03-19 16:47:25 [post_modified_gmt] => 2017-03-19 16:47:25 [post_content_filtered] => [post_parent] => 0 [guid] => https://www.freemovement.org.uk/?post_type=course_unit&p=47640 [menu_order] => 0 [post_type] => course_unit [post_mime_type] => [comment_count] => 0 [filter] => raw ) WP_Post Object ( [ID] => 47638 [post_author] => 23 [post_date] => 2017-03-19 16:42:01 [post_date_gmt] => 2017-03-19 16:42:01 [post_content] => For a person to acquire the EU right of permanent residence he or she must reside lawfully and continuously in a Member State for five years. Some "absences" are allowed, however: up to six months in a 12 month period with no condition and up to 12 months on a single occasion in certain circumstances.
The DirectiveThe right of permanent residence is acquired after a continuous period of five years of legal residence. See Article 16:
The conditions for acquiring permanent residence are therefore:
Right of permanent residence
Article 16General rule for Union citizens and their family members1. Union citizens who have resided legally for a continuous period of five years in the host Member State shall have the right of permanent residence there. This right shall not be subject to the conditions provided for in Chapter III.2. Paragraph 1 shall apply also to family members who are not nationals of a Member State and have legally resided with the Union citizen in the host Member State for a continuous period of five years.3. Continuity of residence shall not be affected by temporary absences not exceeding a total of six months a year, or by absences of a longer duration for compulsory military service, or by one absence of a maximum of twelve consecutive months for important reasons such as pregnancy and childbirth, serious illness, study or vocational training, or a posting in another Member State or a third country.4. Once acquired, the right of permanent residence shall be lost only through absence from the host Member State for a period exceeding two consecutive years.
- Legal residence
- For five continuous years
- Absences of up to six months in a year are permitted, or longer in certain circumstances
- Does legal residence have to be in conformity with the Directive itself or would lawful residence under Article 20/21 or even domestic law be sufficient? In the joined cases of Ziolkowski C-424/10 and Szeja C-425/10 the CJEU held that the residence must be in conformity with the Directive.
- The “six month rule” is not expressed in mandatory terms; it does not state that continuity is broken by absences in excess of 6 months. Member States could be more generous if they wished as discretion is afforded by the wording of the Directive.
- The mechanism for calculating absences is not clear. The reference to year probably means a 12 month period rather than a calendar year but the Directive does not state how to set which rolling 12 month period is assessed for absences, i.e. the start and finish date.
- Longer absences must not count against the person where the absences were for reasons of military service.
- A single absence of up to 12 months must not count against the person where it was for “important reasons”. Examples are given but these are illustrative not exhaustive. The examples are “pregnancy and childbirth, serious illness, study or vocational training, or a posting in another Member State or a third country”.
UK regulationsThe Immigration (European Economic Area) Regulations 2016 address the acquisition of permanent residence in two places. A relatively simple and straightforward piece of EU law is mangled almost beyond immediate recognition.Firstly, regulation sets out the criteria:
Right of permanent residence15.—(1) The following persons acquire the right to reside in the United Kingdom permanently—Secondly, regulation 3 defines what is meant by continuous residence:
(a) an EEA national who has resided in the United Kingdom in accordance with these Regulations for a continuous period of five years;
(b) a family member of an EEA national who is not an EEA national but who has resided in the United Kingdom with the EEA national in accordance with these Regulations for a continuous period of five years;
(c) a worker or self-employed person who has ceased activity;
(d) the family member of a worker or self-employed person who has ceased activity, provided—
(i) the person was the family member of the worker or self-employed person at the point the worker or self-employed person ceased activity; and
(ii) at that point, the family member enjoyed a right to reside on the basis of being the family member of that worker or self-employed person;
(e) a person who was the family member of a worker or self-employed person where—
(i) the worker or self-employed person has died;
(ii) the family member resided with the worker or self-employed person immediately before the death; and
(iii) the worker or self-employed person had resided continuously in the United Kingdom for at least two years immediately before dying or the death was the result of an accident at work or an occupational disease;
(f) a person who—
(i) has resided in the United Kingdom in accordance with these Regulations for a continuous period of five years; and
(ii) was, at the end of the period, a family member who has retained the right of residence.(2) Residence in the United Kingdom as a result of a derivative right to reside does not constitute residence for the purpose of this regulation.(3) The right of permanent residence under this regulation is lost through absence from the United Kingdom for a period exceeding two years.(4) A person who satisfies the criteria in this regulation is not entitled to a right to permanent residence in the United Kingdom where the Secretary of State or an immigration officer has made a decision under regulation 23(6)(b), 24(1), 25(1), 26(3) or 31(1), unless that decision is set aside or otherwise no longer has effect.
Continuity of residence3.—(1) This regulation applies for the purpose of calculating periods of continuous residence in the United Kingdom under these Regulations.(2) Continuity of residence is not affected by—(a) periods of absence from the United Kingdom which do not exceed six months in total in any year;(b) periods of absence from the United Kingdom on compulsory military service; or(c) one absence from the United Kingdom not exceeding twelve months for an important reason such as pregnancy and childbirth, serious illness, study or vocational training or an overseas posting.(3) Continuity of residence is broken when—(a) a person serves a sentence of imprisonment;(b) a deportation or exclusion order is made in relation to a person; or(c) a person is removed from the United Kingdom under these Regulations.(4) Paragraph (3)(a) applies, in principle, to an EEA national who has resided in the United Kingdom for at least ten years, but it does not apply where the Secretary of State considers that—(a) prior to serving a sentence of imprisonment, the EEA national had forged integrating links with the United Kingdom;(b) the effect of the sentence of imprisonment was not such as to break those integrating links; and(c) taking into account an overall assessment of the EEA national’s situation, it would not be appropriate to apply paragraph (3)(a) to the assessment of that EEA national’s continuity of residence.We can see that the UK regulations are broadly faithful to the Directive. However, excess absences automatically disqualify the person under the UK regulations and there is no real discretion permitted, other than in assessing “important reasons” for the purpose of a single absence of up to 12 months.
Home Office policyThe principle policy document setting out Home Office policy on permanent residence and absences is European Economic Area nationals: qualified persons. This includes a section on assessing continuous residence.The policy makes clear that the Home Office will only recognise a right of permanent residence where the person can prove with evidence they have been physically resident in the UK for five continuous years. Evidence might include:
- tenancy agreements
- utility bills
- bank statements
- school or nursery letters or immunisation records in support of applications for children
For example, if an EEA national claims they have resided in the UK from October 2005 to October 2010 you will begin each of the years in October. If they lived and worked in the UK from October 2005 until February 2008, resigned from their job to work in another EEA state for 10 months before returning to live and work in the UK in December 2008 their continuity of residence was broken. This is because in the year October 2007 to October 2008 they were absent from the UK for more than 6 months, and it was not for an important reason.Imagine another scenario in which selecting the dates might eliminate a gap of over six months:[su_box title="Example"]Martin is a German national. He was absent from the UK backpacking around the world for 8 months between 10 May 2015 and 10 January 2016. Other than that he has been self employed continuously in the UK since February 2011 and has no other major absences of over 2 months. He plans to make his application based on a 5 year period starting in 2011 or 2012.If Martin's 12 month "cycle" starts on 1 May 2011 then he probably will not qualify for permanent residence. This is because the 8 month period would fall into the 12 month period of May 2015 to May 2016, thus breaking his continuous residence.If Martin instead starts his 12 month "cycle" on 1 September 2011 he probably will qualify for permanent residence. This is because his 8 month gap will be divided between two 12 month periods:
- 1 September 2014 to 1 September 2015 will include approximately a 5 month period (10 May 2015 to 1 September 2015)
- 1 September 2015 to 1 September 2016 will include approximately a 4 month period
Residence prior to Directive 2004/38In the case of Lassal C-162/09 the CJEU held that periods of residence prior to the coming into force of Directive 2004/38 on 6 April 2004 can count towards or even create by themselves a right of permanent residence. The residence must have been equivalent to the conditions in Direct 2004/38, so the person concerned must have been a worker, self employed person, self sufficient with comprehensive sickness insurance or a student with comprehensive sickness insurance or a qualifying family member.The formal conclusion was that:
– continuous periods of five years’ residence completed before the date of transposition of Directive 2004/38, namely 30 April 2006, in accordance with earlier European Union law instruments, must be taken into account for the purposes of the acquisition of the right of permanent residence pursuant to Article 16(1) thereof, and– absences from the host Member State of less than two consecutive years, which occurred before 30 April 2006 but following a continuous period of five years’ legal residence completed before that date do not affect the acquisition of the right of permanent residence pursuant to Article 16(1) thereof.A person with five continuous years of residence as a worker before 2006 will therefore potentially have acquired and retained the right of permanent residence. However, it is possible that the right has since been lost through absences or residence not in conformity with the Directive.
Residence prior to AccessionIn Ziolkowski C-424/10 and Szeja C-425/10 the same approach in Lassal to residence prior to the coming into force of Directive 2004/38 is applied to residence prior to a country acceding to the European Union.The residence must have been in conformity with the requirements of Directive 2004/38, i.e. the person must have been a qualified person at the relevant time.
Absences and gaps in residence prior to Directive 2004/38However, that right of permanent residence can also have been lost. In the case of Dias C-325/09 the CJEU held that a person who might have acquired permanent residence under the Lassal approach for a period of residence prior to 6 April 2006 would have lost that right if he or she had been living without a right of residence under Directive 2004/38 for a period of two years or more.[su_box title="Example"]Maria is from Poland. She lived and worked in the UK between 1995 and 2000 on a work permit. Even though this was prior to the coming into force of Directive 2004/38 she would potentially be said now to have acquired the right of permanent residence under the Lassal and Ziolkowski judgments.However, Maria was married to a British citizen and gave up work in 2001. She did not purchase comprehensive sickness insurance and therefore would not be considered a self sufficient person.Maria does not therefore now have permanent residence because she lived in the UK for over two years without a right of residence before the coming into force of Directive 2004/38. This is the effect of the Dias judgment.[/su_box]A gap of two years or more in residence in compliance with Directive 2004/38 that falls after the commencement of the Directive will not interfere with permanent residence; it is only gaps before commencement that will cause a person not to be considered to have acquired permanent residence for historic residence prior to 6 April 2006.The formal conclusion in Dias was:
– periods of residence completed before 30 April 2006 on the basis solely of a residence permit validly issued pursuant to Council Directive 68/360/EEC of 15 October 1968 on the abolition of restrictions on movement and residence within the Community for workers of Member States and their families, without the conditions governing entitlement to any right of residence having been satisfied, cannot be regarded as having been completed legally for the purposes of the acquisition of the right of permanent residence under Article 16(1) of Directive 2004/38, and– periods of residence of less than two consecutive years, completed on the basis solely of a residence permit validly issued pursuant to Directive 68/360, without the conditions governing entitlement to a right of residence having been satisfied, which occurred before 30 April 2006 and after a continuous period of five years’ legal residence completed prior to that date, are not such as to affect the acquisition of the right of permanent residence under Article 16(1) of Directive 2004/38.[post_title] => Residence prior to 2006 or Accession [post_excerpt] => [post_status] => publish [comment_status] => closed [ping_status] => closed [post_password] => [post_name] => residence-prior-2006-accession [to_ping] => [pinged] => [post_modified] => 2017-03-19 16:37:54 [post_modified_gmt] => 2017-03-19 16:37:54 [post_content_filtered] => [post_parent] => 0 [guid] => https://www.freemovement.org.uk/?post_type=course_unit&p=47637 [menu_order] => 0 [post_type] => course_unit [post_mime_type] => [comment_count] => 0 [filter] => raw ) WP_Post Object ( [ID] => 47635 [post_author] => 23 [post_date] => 2017-03-19 16:35:11 [post_date_gmt] => 2017-03-19 16:35:11 [post_content] => Where an EEA national and his or her third country spouse separate or do not live together but remain married, the third country national spouse will continue to be the family member of that EEA national and will continue to have a right of residence as long as the EEA national remains a qualified person (worker, self employed, self sufficient or student) and remains in the UK. See case of Diatta C-267/83 and also Ogieriakhi C‑244/13.Where an EEA national and his or her third country national spouse formally and legally terminate their relationship, the third country national spouse may potentially retain rights of residence if:
- The EEA national was a qualified person at the date of termination of the marriage, i.e. was working, self employed, self sufficient or a student, or had permanent residence;
- The family member is a worker, self employed or self sufficient person or is the family member of such a person (i.e. child, parent or grandparent); and
- Either of the following:
- Prior to filing and service of the divorce petition the marriage or civil partnership had lasted 3 years and the couple had lived in the UK for at least 1 year during that marriage or civil partnership; or
- The former spouse or civil partner has custody of a child of the EEA national who is a qualified person or who has permanent residence; or
- the former spouse or civil partner has the right of access to a child of the EEA national where a court has ordered access must take place in the UK; or
- the continued right of residence of the family member is “warranted by particularly difficult circumstances, such as he or another family member having been a victim of domestic violence while the marriage or civil partnership was subsisting”.
Article 13(2) of Directive 2004/38 must be interpreted as meaning that a third-country national, divorced from a Union citizen, whose marriage lasted for at least three years before the commencement of divorce proceedings, including at least one year in the host Member State, cannot retain a right of residence in that Member State on the basis of that provision where the commencement of the divorce proceedings is preceded by the departure from that Member State of the spouse who is a Union citizen.The protection available to third country national family members is therefore very far from comprehensive.[su_box title="Example"]Vera is a Czech national living and working in the UK. She marries Wilson in the UK, where they met. Wilson is from Ghana. Their relationship breaks down after 3 years and and Vera, upset, immediately leaves the UK and returns to the Czech republic. Wilson has no EU law right to reside in the UK.If Vera and Wilson were divorced and the decree absolute issued before Vera relocated to the Czech republic, Wilson would retain a right of residence.[/su_box]Where an applicant is unable to provide evidence to show that the EEA sponsor was a qualified person at the relevant time, the Home Office may on some occasions make enquiries on their behalf, for example contacting an employer or educational establishment or consulting the National Insurance records of the EEA national to ascertain whether he or she appeared to be working at the relevant time.The Home Office approach is set out in policy document Free movement rights: retained rights of residence:
Where a relationship has broken down due to domestic violence or other difficult circumstances it may not always be possible for the applicant to provide all of the necessary documents about the EEA national sponsor. In such circumstances, you can make further enquiries about the EEA national sponsor’s status but only where the applicant has shown they have made every effort to provide the necessary evidence....In cases where there has been a breakdown in the relationship between the applicant and their EEA national sponsor it may not always be possible for them to get the documents that are needed to support their application.An example of this could be where the applicant was the victim of domestic violence and cannot provide evidence relating to their EEA national sponsor’s nationality or free movement rights (to ask them to do so could put them at risk). See: Documents required for retained residence in domestic violence cases.Another example would be where the applicant’s relationship has ended under difficult circumstances but they have provided evidence to show that they have made every effort to provide the required documents. Such as, attempting to make contact with the EEA national sponsor during divorce proceedings.When dealing with these cases you must take a pragmatic approach and:The policy goes on to state caseworkers may contact employers or others and failing that contact HMRC to make enquiries.This current version of the policy is notably more generous than in the past, where the Home Office was only willing to make enquiries in some domestic violence cases.Where the applicant is unable to prove the fact the sponsor was a qualified person (or sometimes even whether he or she she was in the UK) and the Home Office is unwilling to make enquiries and the application is refused, on an appeal the tribunal may sometimes be persuaded to direct the Home Office to make enquiries. The Home Office has previously indicated that it will comply with such a direction, which may make it more feasible to obtain such a direction from a judge in the first place. [post_title] => Termination of marriage or civil partnership [post_excerpt] => [post_status] => publish [comment_status] => closed [ping_status] => closed [post_password] => [post_name] => termination-marriage-civil-partnership [to_ping] => [pinged] => [post_modified] => 2017-03-19 21:28:51 [post_modified_gmt] => 2017-03-19 21:28:51 [post_content_filtered] => [post_parent] => 0 [guid] => https://www.freemovement.org.uk/?post_type=course_unit&p=47635 [menu_order] => 0 [post_type] => course_unit [post_mime_type] => [comment_count] => 0 [filter] => raw ) WP_Post Object ( [ID] => 47632 [post_author] => 23 [post_date] => 2017-03-19 16:25:14 [post_date_gmt] => 2017-03-19 16:25:14 [post_content] => The position of third country family members of EEA nationals is a potentially vulnerable one. The right to reside of the family member flows entirely from the EEA national, meaning that if the EEA national loses their own right to reside or leaves the UK, the family member is generally left with no right of residence of their own.There are exceptions and some limited protections built into the Citizens’ Directive, such as in the event of divorce in certain circumstances. These protections are set out at Articles 12 and 13 of the Citizens' Directive, which are transposed into regulation 10 of the UK regulations. These protections allow the family member to retain the right of residence in circumstances in which it would otherwise be lost and thereby qualify for permanent residence.Retained rights of residence are a complex and difficult topic but rights of residence can be retained in broadly the following situations.
- consider each case on its merits
- if you are satisfied the applicant cannot get the evidence themselves, makeenquiries on their behalf where possible, getting agreement from your senior caseworker before doing so.
Death of EEA nationalWhere an EEA national dies it may be possible for family members to retain their right of residence. There are several conditions that must be fulfilled:
- The EEA national must have been a qualified person or have held permanent residence at the time of death; and
- The family member must have been a family member of that EEA national at the time of his or her death; and
- That family member must have lived in the UK for at least one year immediately prior to the death of the EEA national; and
- The family member must also be a worker, self employed person or self sufficient person.
- The EEA national had a right of residence or permanent residence at the time of death; and
- The child or grandchild was attending an educational course immediately before the death (an “educational course” includes attendance at school).
Departure of EEA national sponsorAs with the death of an EEA national, where an EEA national leaves the UK there is a route by which a child or grandchild in education and their other parent carer might retain rights of residence, the conditions for which are set out in the UK regulations as follows:
- The EEA national had a right of residence or permanent residence at the time of departure from the UK; and
- The child or grandchild was attending an educational course immediately before the departure from the UK (an “educational course” includes attendance at school); and
70. I would dismiss this appeal. If an EEA national enters the UK and is not involved in an economically active activity, for example because she is a student, her residence and that of her family members will not be lawful unless she has CSIC [Comprehensive Sickness Insurance Cover] while she is a student in the five years following her arrival. Accordingly her family members will not be able to qualify for permanent residency in the UK.71. So Mrs Ahmad had to have CSIC while she was a student. This condition must be strictly complied with. The fact that she would be entitled to treatment under the NHS, and was thus at all times in substantially the same position as she would have been had she had CSIC, is nothing to the point. Her failure to take out CSIC put the host state at risk of having to pay for healthcare at a time when the Ahmads had not then achieved the status of permanent resident and she was not economically active.So, we know from Ahmad that access to the NHS does not count. What might qualify as comprehensive sickness insurance, then? There are three potential ways to meet the requirement.
1. Buy comprehensive private health insuranceOne way forward is to purchase private health insurance from a private company. This is relatively cheap if you are young and healthy. It may be prohibitively expensive or even impossible if you are older or already ill.This will need to be “comprehensive”. Both lawyers and non-lawyers have found the level at which sickness insurance becomes “comprehensive” to be something of a mystery. The Government says it means “full health insurance”, which raises the question of what “full” is to mean. So this is of little help.The Guide to Supporting Documents on the EEA (QP) form is a helpful place to start because it sets out the Home Office view (which is not necessarily the right view always). It suggests that the insurance should
“cover you (and your family members if applicable) for the majority of risks while you are in the UK”.This suggests that there may be gaps in cover allowed; after all, it does not say “all risks”.Because the Home Office does not have guidance on this question and there are no cases decided on the point, there is no resource or precedent to point to that might provide an answer. The only option is really to opt for the maximum level of cover possible and hope it is sufficient.This video by Halo Consulting includes suggestions on what is considered by the Home Office as "comprehensive". I cannot vouch for its accuracy but it certainly seems plausible:https://www.youtube.com/watch?v=ERezvInfFIM
2. Use a European Health Insurance CardThe EEA(QP) form states that you can use a European Health Insurance Card (EHIC) as evidence of comprehensive sickness insurance, but only if you make a declaration that you do not intend to stay in the UK permanently.This may be helpful for some, but many would rather the flexibility to stay permanently if opportunities in the UK come their way. The declaration is not legally binding in any way, though, and it is questionable whether the Home Office view on this is correct. There are no decided cases about the issue so it is not possible to say for sure in what circumstances a EHIC will count.You can find more information about applying for a EHIC here.
3. Reciprocal arrangements with home EEA countryThe EHIC exists because of multilateral and reciprocal agreements between EU countries which mean that the cost of medical care in the host state can be recovered from the state of origin so long as that person is entitled to healthcare in that state.In Ahmad v Secretary of State for the Home Department  EWCA Civ 988, the leading Court of Appeal case on the issue, it was agreed by both sides that if Mrs Ahmad could prove that there were reciprocal arrangements between the UK and Denmark enabling the UK to reclaim from Denmark the costs of providing Mrs Ahmad with care in the UK then she would be considered to have comprehensive sickness insurance. Rather unfortunately, though, there was no evidence put to the court that this was so in her case so she was not able to win her appeal.The court also held that the Home Office was under no obligation to find out what the position was; that was up to Mrs Ahmad as it was her case to prove.The way to prove that you have comprehensive sickness insurance that covers you in the UK without a EHIC is to use forms S1, S2 or S3. These are specifically mentioned by the Home Office in the guidance notes.For more information about the forms, click here. It is thought that the forms can be obtained retrospectively from the health provider in your country of nationality, i.e. that you can apply now for a form that provides cover for previous residence in the UK. Once obtained the form needs to be translated into English and sent to the following address:
Overseas Healthcare Team
Department for Work & Pensions
Tyne and Wear
NE38 7SFThis information is accurate to the best of my knowledge but it is also untested, in that I have not myself seen a successful application for a student or self employed person based on this method. If you have more information, please get in touch with me or leave a comment.
AlternativesOne alternative is to wait and see what happens with the UK’s negotiations to leave the EU. It may be that some arrangement is made for EEA nationals who happen to be living in the UK at a certain date but do not have a right of residence or permanent residence. We simply do not know. This does not seem at the moment like a very safe way of approaching the issue, and it also risks wasting time that might otherwise be spent building up a right of residence to acquire permanent residence further down the line.Another option is to become a worker or self employed person. Neither requires comprehensive sickness insurance. [post_title] => What counts as comprehensive sickness insurance? [post_excerpt] => [post_status] => publish [comment_status] => closed [ping_status] => closed [post_password] => [post_name] => counts-comprehensive-sickness-insurance [to_ping] => [pinged] => [post_modified] => 2017-03-19 16:08:15 [post_modified_gmt] => 2017-03-19 16:08:15 [post_content_filtered] => [post_parent] => 0 [guid] => https://www.freemovement.org.uk/?post_type=course_unit&p=47629 [menu_order] => 0 [post_type] => course_unit [post_mime_type] => [comment_count] => 0 [filter] => raw ) WP_Post Object ( [ID] => 47620 [post_author] => 23 [post_date] => 2017-03-19 15:13:55 [post_date_gmt] => 2017-03-19 15:13:55 [post_content] => Confusingly, EEA citizens and their family members are allowed to use the NHS in the UK, but according to the Home Office the NHS does not count as comprehensive sickness insurance. In the one case that has been decided in the higher courts on this point, the Home Office won their argument. For an EEA citizen or family member who needs comprehensive sickness insurance, therefore, they need to show something more than merely that they can use the NHS if or when they need it.EU law gives a right of entry to the UK to any EEA citizen. However, only certain EEA citizens qualify for a right of residence, which brings with it the right to be accompanied by family members, the right to claim certain benefits, protection from removal from the UK and the right to acquire permanent residence after five years of a qualifying activity.The main categories of EEA citizen who qualify for a right of residence are:
- Self employed persons
- Self sufficient persons with comprehensive sickness insurance
- Students with comprehensive sickness insurance
Students issued with registration certificate before 20 June 2011Where a student applies for permanent residence and held a registration certificate as a student issued before 20 June 2011, the Home Office does not apply the CSI requirement to time spent in the UK by that person as a student.This transitional policy is clearly set out in policy guidance document European Economic Area nationals: qualified persons.The policy does not apply to a person who was residing as a student but who was never issued with a registration certificate as a student.
Family members who need comprehensive sickness insuranceThe family members of self sufficient persons and students will also need comprehensive sickness insurance to qualify for their own right of residence.The UK’s implementation of EU law has always required the family members of self sufficient EEA citizens to possess comprehensive sickness insurance as well as the EEA citizen in order for them to have a right of residence. From 22 June 2015 the same rule has also been applied to the family members of EEA students.For further information on the changes, please see the official Government guidance note on the changes. [post_title] => Who needs comprehensive sickness insurance? [post_excerpt] => [post_status] => publish [comment_status] => closed [ping_status] => closed [post_password] => [post_name] => needs-comprehensive-sickness-insurance [to_ping] => [pinged] => [post_modified] => 2017-03-19 16:00:45 [post_modified_gmt] => 2017-03-19 16:00:45 [post_content_filtered] => [post_parent] => 0 [guid] => https://www.freemovement.org.uk/?post_type=course_unit&p=47620 [menu_order] => 0 [post_type] => course_unit [post_mime_type] => [comment_count] => 0 [filter] => raw ) WP_Post Object ( [ID] => 47619 [post_author] => 23 [post_date] => 2017-03-19 15:11:13 [post_date_gmt] => 2017-03-19 15:11:13 [post_content] => The right to reside as a student is derived from Article 7(1)(c) of the Citizens’ Directive, which provides for a right of residence for those who:
— are enrolled at a private or public establishment, accredited or financed by the host Member State on the basis of its legislation or administrative practice, for the principal purpose of following a course of study, including vocational training; and— have comprehensive sickness insurance cover in the host Member State and assure the relevant national authority, by means of a declaration or by such equivalent means as they may choose, that they have sufficient resources for themselves and their family members not to become a burden on the social assistance system of the host Member State during their period of residenceIt is clear that for a person to have a right of residence as a student, the person must have comprehensive sickness insurance, considered further below.
Types of study includedThis right to study clearly includes (but is not necessarily limited to):
- attendance at school
- attendance at publicly or privately funded college
- attendance at university
- vocational training.
- Is the institution on the Tier 4 register of sponsors?
- If not, is there other evidence to show it is publicly funded or otherwise accredited?
- an establishment or further education provider maintained by a local education authority
- an establishment in the higher education sector which received financial support by a higher education funding council (pursuant to the Further and Higher Education Act 1992)
- any establishment receiving grants, loans or other payments form the Higher Education Funding Council for England
- Quality Assurance Agency for Higher Education
- Education Scotland
- Education and Training Inspectorate
- Independent Schools Inspectorate
- Bridge Schools Inspectorate
- School Inspection Service.
The need for “sufficient resources”It is clear from Article 7(1)(c) that to be considered a student in EU law the student must be able to show they have sufficient resources so as not to become a burden on the social assistance system.A student is able under Article 7(1)(c) to make a “declaration” of means or to prove they have sufficient resources by other means chosen by the student. There is no minimum level of income or savings that a Member State such as the UK can impose. In a case on an earlier equivalent provision of EU law on students, Commission v Italy Case (C-424/98), it was held that a Member State may not require certain documents to be produced by a student as evidence of means and that a declaration of means by a student was sufficient in EU law.Article 8(4) sets out a definition of “sufficient resources”:
Member States may not lay down a fixed amount which they regard as "sufficient resources", but they must take into account the personal situation of the person concerned. In all cases this amount shall not be higher than the threshold below which nationals of the host Member State become eligible for social assistance, or, where this criterion is not applicable, higher than the minimum social security pension paid by the host Member State.It is therefore not possible definitively to state what the minimum level of self sufficiency might be, but it cannot be higher than the level of income support for UK nationals (once associated benefits such as housing benefit, council tax relief, free school meals and similar are taken into account as well). Benefit rates can be found on Rightsnet.In the case of Kuldip Singh Case C‑218/14 the Court of Justice of the European Union considered the question of the potential sources of income for a person claiming to be self sufficient. The Court held that the necessary income could derive in part from a spouse who is a third country national. By analogy this would also apply to students. [post_title] => Study [post_excerpt] => [post_status] => publish [comment_status] => closed [ping_status] => closed [post_password] => [post_name] => study-2 [to_ping] => [pinged] => [post_modified] => 2017-03-19 15:28:53 [post_modified_gmt] => 2017-03-19 15:28:53 [post_content_filtered] => [post_parent] => 0 [guid] => https://www.freemovement.org.uk/?post_type=course_unit&p=47619 [menu_order] => 0 [post_type] => course_unit [post_mime_type] => [comment_count] => 0 [filter] => raw ) WP_Post Object ( [ID] => 47618 [post_author] => 23 [post_date] => 2017-03-19 15:10:01 [post_date_gmt] => 2017-03-19 15:10:01 [post_content] => The right to reside as a self sufficient person is derived from the Citizens’ Directive at Article 7(1)(b), which creates a right of residence for those who:
have sufficient resources for themselves and their family members not to become a burden on the social assistance system of the host Member State during their period of residence and have comprehensive sickness insurance cover in the host Member StateIt is clear that for a person to be considered self sufficient in EU law and to have a right of residence and thus acquire a right of permanent residence, the person must have comprehensive sickness insurance. This applies to students as well, and is considered separately below.Article 8(4) then sets out a definition of “sufficient resources”:
Member States may not lay down a fixed amount which they regard as "sufficient resources", but they must take into account the personal situation of the person concerned. In all cases this amount shall not be higher than the threshold below which nationals of the host Member State become eligible for social assistance, or, where this criterion is not applicable, higher than the minimum social security pension paid by the host Member State.It is therefore not possible definitively to state what the minimum level of self sufficiency might be, but it cannot be higher than the level of income support for UK nationals (once associated benefits such as housing benefit, council tax relief, free school meals and similar are taken into account as well). Benefit rates can be found on Rightsnet.In the case of Commission v Belgium C-408/03 the situation of self sufficient persons was considered in some detail. The Belgian authorities had taken the view that sufficient resources had to be personal sufficient resources and that the support of a Belgian partner was not sufficient.The Court held at paragraph 40 that
it is sufficient for the nationals of Member States to ‘have’ the necessary resources, and that provision lays down no requirement whatsoever as to their originand that the necessary financial resources can be provided by a family member and that the family member could be a citizen of the host Member State (para 42, 51).This case is binding and it is therefore clear that the support of a British partner or family member does count as self sufficiency. No particular level of support is necessary as long as the person avoids becoming a burden on the social assistance system.In the case of Kuldip Singh Case C‑218/14 the Court of Justice of the European Union considered the question of the potential sources of income for a person claiming to be self sufficient. The Court held that the necessary income could derive in part from a spouse who is a third country national.Examples of those who might qualify under the self sufficient category might be retired people with a pension, wealthy people with income derived from savings or investments or those with relatively modest savings or income but with additional income from a third country national family member. [post_title] => Self sufficiency [post_excerpt] => [post_status] => publish [comment_status] => closed [ping_status] => closed [post_password] => [post_name] => self-sufficiency-2 [to_ping] => [pinged] => [post_modified] => 2017-03-19 15:10:01 [post_modified_gmt] => 2017-03-19 15:10:01 [post_content_filtered] => [post_parent] => 0 [guid] => https://www.freemovement.org.uk/?post_type=course_unit&p=47618 [menu_order] => 0 [post_type] => course_unit [post_mime_type] => [comment_count] => 0 [filter] => raw ) WP_Post Object ( [ID] => 47617 [post_author] => 23 [post_date] => 2017-03-19 15:07:46 [post_date_gmt] => 2017-03-19 15:07:46 [post_content] => [toc]
The TreatyWorkers and the self employed are usually endowed with the same rights in EU law, but the free movement rights of the self employed are derived from Articles 49 and 56 TFEU (rather than Article 45 for workers):
Article 49Within the framework of the provisions set out below, restrictions on the freedom of establishment of nationals of a Member State in the territory of another Member State shall be prohibited. Such prohibition shall also apply to restrictions on the setting-up of agencies, branches or subsidiaries by nationals of any Member State established in the territory of any Member State.Freedom of establishment shall include the right to take up and pursue activities as self-employed persons and to set up and manage undertakings, in particular companies or firms within the meaning of the second paragraph of Article 54, under the conditions laid down for its own nationals by the law of the country where such establishment is effected, subject to the provisions of the Chapter relating to capital.Article 54 can stand alone but Articles 56 and 57 on the right to provide services in other Member States may also be relevant to those pursuing self employed activities:
Article 56Within the framework of the provisions set out below, restrictions on freedom to provide services within the Union shall be prohibited in respect of nationals of Member States who are established in a Member State other than that of the person for whom the services are intended…Article 57Services shall be considered to be "services" within the meaning of the Treaties where they are normally provided for remuneration, in so far as they are not governed by the provisions relating to freedom of movement for goods, capital and persons."Services" shall in particular include:(a) activities of an industrial character;(b) activities of a commercial character;(c) activities of craftsmen;(d) activities of the professions.Without prejudice to the provisions of the Chapter relating to the right of establishment, the person providing a service may, in order to do so, temporarily pursue his activity in the Member State where the service is provided, under the same conditions as are imposed by that State on its own nationals.Any self employed activity is permitted and protected by Article 49 but some self employed activities are given additional protection by Article 56 as defined in Article 57.
Case lawIt is to the European cases to which we have to turn to understand the scope and meaning of what counts as “self employment” or the difference between the right of establishment and the right to provide services. Some explanation and rationale can be found in the case of Commission v Hungary C‑179/14:
148 It must be borne in mind that the objective of the freedom of establishment guaranteed by Article 49 TFEU is to allow a national of a Member State to set up a secondary establishment in another Member State to carry on his activities there and thus assist economic and social interpenetration within the European Union in the sphere of activities as self-employed persons. To that end, freedom of establishment is intended to allow a national of a Member State to participate, on a stable and continuing basis, in the economic life of a Member State other than his State of origin and to profit therefrom by actually pursuing in the host Member State an economic activity through a fixed establishment for an indefinite period…149 As is clear from the case-law, an economic activity may consist in offering goods and services…150 As to the freedom to provide services laid down in Article 56 TFEU, it covers all services that are not offered on a stable and continuing basis from an established professional base in the Member State of destination…In the vast majority of cases the any difference between Articles 49 and 56 is a difference without a distinction; they will usually both apply.[su_box title="Example"]Jacek arrives in the UK from Bulgaria. He takes up self employment as a hot dog vendor with his own stand outside a football stadium. This activity is protected by Article 49, the right to establishment. Jacek’s activities are probably also protected by Article 56 because his activity is of a “commercial character”.[/su_box]Because employment and self employment are given more or less the same protection, being temporarily unable to be self employed, being on maternity leave and even gaps in self employment may not cause the person to lose the right of residence.Some sort of economic activity is necessary to count as self employment, and as with employment the activity must be genuine and effective rather than marginal and ancillary.The case of Jany C-268/99 specifically concerned the meaning of the right of establishment or self employment. The court held that activity of a self employed nature must amount to economic activity and be (paragraph 71):
- outside any relationship of subordination concerning the choice of that activity, working conditions and conditions of remuneration;- under that person's own responsibility; and- in return for remuneration paid to that person directly and in full.Activity of an economic nature would include but not be limited to the right to pursue “activities of an industrial or commercial character, activities of craftsmen or activities of the professions in a Member State”.The facts of Jany were interesting: the Court concluded that the activity of prostitution pursued in a self-employed capacity can be regarded as a service provided for remuneration and is therefore covered by both those expressions.The Court has held that activity as a self employed person or provider of services must be “genuine and effective and not such as to be regarded as purely marginal and ancillary”: Deliège Joined Cases C-51/96 and C-191/97. This “genuine and effective” test is rather vague. Judges tend to follow a “I know it when I see it” approach. It is a concept that originates with employment, on which there is some guidance and case law, but these have to be applied with caution because slightly different considerations apply for self employment.
Home Office approachUpdated Home Office policy European Economic Area nationals: qualified persons defines a self employed person as:
A self-employed person is an EEA national, exercising their free movement rights in the UK by working for themselves and generating an income in a self-employed capacity.The guidance goes on to suggest to caseworkers indicators as to genuine and effective self employment:
You must consider a number of factors, although not all the factors will be relevant to every application. You must decide each application after analysing all the relevant circumstances. Applicants must provide evidence to show they meet the factors listed below:
- economic activity
- responsibility and personal freedom
- genuine and effective self employment
- registration with HM Revenue & Customs (HMRC)
While there is no minimum amount of hours an EEA national must engage in self- employed activity to qualify as a self-employed person, the employment must be genuine and effective and not marginal or supplementary.You can take marginal to mean that the self-employed activity involves so little time and money as to be largely irrelevant to the lifestyle of the EEA national. It is supplementary because in this situation the EEA national is clearly spending most of their time on something else, not the self-employed activity.
Compliance with the requirement to pay tax and NI is a domestic matter for the UK authorities and failure to comply does not automatically stop an EEA national from qualifying as a worker. However, non-compliance is a strong indicator that the EEA national is in marginal and ancillary employment. This should not be the sole basis on which you determine that the EEA national is not exercising Treaty rights as a worker, but is a relevant 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, then you must report the employer to Her Majesty’s Revenue and Customs (HMRC) for non-compliance with the UK tax and NI requirements.Other internal Government guidance to its caseworkers sets out what are considered to be relevant factors when assessing whether work or self employment is genuine and effective. See, for example the official Decision Makers’ Guide at DMG 073050:
1. whether work was regular or intermittent
2. the period of employment
3. whether the work was intended to be short-term or long-term at the outset
4. the number of hours worked
5. the level of earnings.While these considerations are really intended to assess work they can also be applied to self employment. For example, how much of a self employed activity has a person undertaken? Was it over a substantial period? How many hours a week does the person devote to the activity? How much do they earn?
Low or sporadic earnings and self employmentA self employed person is more likely than a worker to experience gaps in earnings and periods of “famine and feast”. For example, it may take some time between establishing a business and generating any significant income and there may be gaps in income during periods of holiday or sickness or while seeking new business.The Minimum Earnings Threshold (see above) is applied to self employment cases as well as worker cases. The way it is applied by officials is to take the last three months and see if the person earned more or less than the MET during that time. This may well cause problems for a self employed person.Memo DMG 1/14 states as follows as guidance to DWP officials on applying the MET to the self employed:
Account must be taken of the different nature of self-employment: it may include periods of relative inactivity (see DMG 071186) and there will be period particularly as a business is starting up when the person may be working long hours but not yet receiving much profit.The reference to DMG is to the official Decision Makers’ Guide. The paragraphs have been renumbered. The relevant paragraph is now 072842, at which the guidance sets out a paragraph from the case of SSWP v JS  UKUT 240 (AAC):
I do not accept that a claimant who is for the moment doing no work is necessarily no longer self-employed. There will commonly be periods in a person’s self-employment when no work is done. Weekends and holiday periods are obvious examples. There may also be periods when there is no work to do. The concept of self-employment encompasses periods of both feast and famine. During the latter, the person may be engaged in a variety of tasks that are properly seen as part of continuing self-employment: administrative work, such as maintaining the accounts; in marketing to generate more work; or developing the business in new directions. Self- employment is not confined to periods of actual work. It includes natural periods of rest and the vicissitudes of business life. This does not mean that self-employment survives regardless of how little work arrives. It does mean that the issue can only be decided in the context of the facts at any particular time. The amount of work is one factor. Whether the claimant is taking any other steps in the course of self-employment is also relevant. The claimant’s motives and intentions must also be taken into account, although they will not necessarily be decisive.”Similar references can also be found in HB Circular A3/2014: Minimum Earnings Threshold. All of the documents also include worked examples. These are correct in the opinion of the Government but have not all been tested in court. [post_title] => Self employment [post_excerpt] => [post_status] => publish [comment_status] => closed [ping_status] => closed [post_password] => [post_name] => self-employment-2 [to_ping] => [pinged] => [post_modified] => 2017-03-19 21:45:57 [post_modified_gmt] => 2017-03-19 21:45:57 [post_content_filtered] => [post_parent] => 0 [guid] => https://www.freemovement.org.uk/?post_type=course_unit&p=47617 [menu_order] => 0 [post_type] => course_unit [post_mime_type] => [comment_count] => 0 [filter] => raw ) WP_Post Object ( [ID] => 47616 [post_author] => 23 [post_date] => 2017-03-19 15:05:25 [post_date_gmt] => 2017-03-19 15:05:25 [post_content] => [toc]In order to promote and give full effect to free movement for workers, the EU definition of "worker" includes the right to move to another country, work and then cease work for certain specified reasons such as experiencing a temporary or permanent incapacity to work or an industrial accident or retirement. There is also protection for cross border workers who retain a place of residence in one Member State but work in another.The protection for workers extends to the self employed as well; references to worker in this section also apply to the self employed.The rationale for these rules is that without such protection, workers would be more reluctant to move to other Member States.
Temporary incapacity to workCitizens’ Directive 2004/38 sets out certain circumstances where a person who has already been a worker or self employed retains his or her status despite ceasing work. These are set out at Article 7(3):
(a) he/she is temporarily unable to work as the result of an illness or accident;(b) he/she is in duly recorded involuntary unemployment after having been employed for more than one year and has registered as a job-seeker with the relevant employment office;(c) he/she is in duly recorded involuntary unemployment after completing a fixed-term employment contract of less than a year or after having become involuntarily unemployed during the first twelve months and has registered as a job-seeker with the relevant employment office. In this case, the status of worker shall be retained for no less than six months;(d) he/she embarks on vocational training. Unless he/she is involuntarily unemployed, the retention of the status of worker shall require the training to be related to the previous employment.In plain English, this means that where a person has been a worker or self employed, he or she will be considered to remain a worker or self employed person with an EU right of residence if:
- He or she is temporarily unable to work because of illness or accident. There is no set time period and "temporary" could potentially be any period of time less than "permanent". There must be a causal link between the illness or accident and the inability to work, though.
- He or she has worked for more than one year and then registers at the Job Centre and is looking for work (otherwise the unemployment is not involuntary). However, its must be the case that the person does not retain his or her worker status indefinitely; if the Antonissen (C-292/89) case is applied, after 6 months he or she will need to show a genuine chance of getting a job.
- He or she has worked for less than one year and then registers at the Job Centre, in which case he or she will retain worker status at least six months.
- He or she undertakes vocational training. However, if the unemployment was voluntary then the vocational training must be related to the previous employment in some way.
Early permanent residence: permanent incapacity to workCitizens’ Directive 2004/38 also provides some protection for workers and self employed people who become permanently incapable of work. The basic criteria for a worker who experiences a permanent incapacity to work are that:
1. The worker must have terminated his or her work or self employment because of a permanent incapacity to work (there must be a causal link between the decision to stop work and the incapacity to work) AND
2. The worker must have resided in the UK continuously for more than two years prior to ceasing work
the incapacity is the result of an accident at work or an occupational disease that entitles him or her to a pension payable in full or in part by an institution in the UK.Where these conditions are met, the person will qualify for immediate permanent residence and does not need to wait for the end of the normal five year period.[su_box title="Example"]Gisela is a German national. She comes to the UK for a job in 2012. She marries in the UK but in 2015 she has a terrible car accident leaving her permanently unable to work. She wishes to remain in the UK.Because she was a worker, she lived in the UK for two years and she has ceased work because of a permanent incapacity to work, she qualifies for immediate permanent residence.[/su_box]
Early permanent residence: retirementCitizens’ Directive 2004/38 provides a right of retirement for workers and the self employed in the Member State in which they have been working, as long as the following conditions are all met:
- The person has lived in the UK continuously for at least three years prior to retirement; and
- The person was working or self employed in the UK for at least one year prior to retirement; and
- The person has reached state retirement age or, if a worker, is taking early retirement.
Cross border workersThe Directive also provides at Article 17 for permanent residence to be acquired by certain cross border workers. Cross border working is more common across land borders in continental Europe but can also arise in the UK, particularly between Northern Ireland and the Republic of Ireland.The conditions to be met are that the worker or self employed person has:
- Worked for three years in the UK
- Then works in an employed or self employed capacity in another Member State
- But retains his or her home in the UK and returns to it at least once a week.