EEA PR as 'qualified person' (worker) with jobseeking gap

[andorus]

I’m an EEA national applying for a permanent residence (PR) as ‘qualified person’ in September 2017. I would have a continuous 5 year employment (3 different employers) with a 5 month gap in 2015 (Jan-May). Also, on my arrival to the UK I registered as a jobseeker with Jobcentre Plus for 3 months from September 2012 to December 2012 without claiming any benefits and was offered my 1st job in December 2012 and started in January 2013. At the end of December 2014 I quitted and from January to May 2015 I was actively looking for a job (registered with reed.co.uk and other agencies, applying for jobs and attended job interviews – I have emails confirming these activities). However, I wasn’t registered with Job Centre during this period. Consequently I found a job in May 2015. Are the emails confirming I was looking for a job sufficient to prove I was a jobseeker in 2015?
I have also found the following notice: 30748 - Annex 17 - Notice 03-2014 - Retention of Worker Status
From: European Operational Policy Team Subject: Jobseekers and retention of ‘worker’ status Date: 01 January 2014 Issue Number: 03/2014
Jobseekers status
4. The Home Office has to-date interpreted regulation 6(2) to mean that jobseeker status only applies „on-entry‟; meaning that a person can only be a jobseeker for the period after which they enter the UK in search of work, but before they are first employed. The Home Office has not to-date regarded those people who have worked in the UK and who voluntarily leave employment but then seek work again, as jobseekers.
5. Following the Upper Tribunal case of Shabani, this position has changed and it is now the case that someone who voluntarily leaves employment, without retaining worker status, can revert to being a jobseeker without needing to leave and re-enter the UK, provided they are genuinely seeking employment and have a real chance of being engaged.
6. Regulation 6(4) of the Regulations amends the definition of „jobseeker‟ in line with Shabani. A jobseeker is now defined as a person who:
• entered the United Kingdom in order to seek employment or
• is in the UK seeking employment immediately after being a qualified person under regulation 6(1)(b)-(e); and
• can provide evidence to demonstrate that they are seeking work and have a genuine chance of being engaged.
7. An EEA national who meets the above conditions cannot continue to be regarded as a jobseeker for longer than six months unless they can provide compelling evidence that they are seeking work and have a genuine chance of being engaged. See paragraph 8 of this notice for an example of this.

[andorus]

Any experience/thoughts on it anyone, please? Thanks

[Breev]

I had a gap of a few months while I was a job seeker, and never registered with the Job Centre. I sent printed emails and copies of application forms (approximately 1-2 for each month that I was searching for work) to show I was looking for work. I had my PR application approved. I am not sure if this is guaranteed to be sufficient evidence, but I would say it is definitely worth a try!

[andorus]

Many thanks for sharing your experience Breev. Well done!
My current concern is related to the fact of gap being 5 months and also to the fact I was jobseeking 3 months at the arrival. Now I am considering to apply for PR in January 2018, so the initial period shouldn't be taken into account for 5 years continuous qualifying period, should it?
Reading guidance for HO I am still a bit unclear about how these days are calculcated and what is the meaninng of 12 months period?! Anyone has got the clear understanding of it, please?

Thanks in advance.

See below page 9/10:
https://www.gov.uk/government/uploads/s ... 4_0EXT.pdf

...If an EEA national has previously had a right of residence in the UK as a jobseeker, that previous period of residence should be deducted from the relevant period, unless it was prior to a continuous absence from the UK for more than 12 months.
Repeat periods of residence as a jobseeker
An EEA national who has previously completed a period of 91 days residence as a jobseeker, but who ceased to have a right of residence in that capacity will only be able to remain a jobseeker under certain conditions. These are that they haven’t since then, been continuously absent from the UK for at least 12 months and can immediately demonstrate that they can provide compelling evidence that they are seeking work and have a genuine chance of being engaged.

[andorus]

Anyone? Any experience/thoughts?

[tmonaghan]

Well it is all about lawful residence and unless you are not registered as a jobseeker for five months you would generally be expected to be self-sufficient with a private medical insurance.

[andorus]

Thanks for your comment.
Seeking employment doesn't mean you must be registered with Jobcentre Plus - please see below. Am I interpreting that right? Thanks

Seeking employment Evidence of seeking employment may include: • job application forms • letters of invitation to interviews • rejection letters from employers • Jobcentre Plus registration documents including the claimant commitment which outlines what jobseeking actions the claimant must carry out while receiving benefits (this alone is not sufficient) • letters and emails written by the applicant to employers or employment agencies seeking work

[tmonaghan]

I have read posts where people had a break of two or three months between jobs and did not apply as a job seeker. However they were able to provide evidence of job seeking for these same periods and made it through. In your case you had a five-month period of inactivity, which is almost half a year in the UK when you were expected to exercise your Treaty Rights. You are supposed to provide evidence of five years continuous lawful residence in the UK. However, the inclusion of ‘jobseeker’ as a ‘qualified person’ is an entirely domestic UK gloss on EU free movement rights.

This could be interesting for you,
http://www.eearegulations.co.uk/Regs201 ... ulation_06

(2) A person who is no longer working must continue to be treated as a worker provided that the person—
(a)is temporarily unable to work as the result of an illness or accident;
(b)is in duly recorded involuntary unemployment after having been employed in the United Kingdom for at least one year, provided the person—
(i)has registered as a jobseeker with the relevant employment office; and
(ii)satisfies conditions A and B;
(c)is in duly recorded involuntary unemployment after having been employed in the United Kingdom for less than one year, provided the person—
(i)has registered as a jobseeker with the relevant employment office; and
(ii)satisfies conditions A and B;
(d)is involuntarily unemployed and has embarked on vocational training; or
(e)has voluntarily ceased working and has embarked on vocational training that is related to the person’s previous employment.

(3) A person to whom paragraph (2)(c) applies may only retain worker status for a maximum of six months.

That being said, there is no requirement for you to apply for documentation to prove that you acquired PR. In addition, if you applied now; you would still have to apply again after Brexit to acquire Settled Status. Therefore paying twice the fees.

[andorus]

Many thanks Tmonaghan for your thoughts.

If I am reading it right + content of ruling from Shabani case I tend to believe 6 months of documented job seeking (CVs, application letter, interviews) can be good enough to prove it. What do you think?

I am pasting full note of EOPT:

From: European Operational Policy Team

Subject: Jobseekers and retention of ‘worker’ status

Date: 01 January 2014

Issue Number: 03/2014


Purpose of Notice

1. This notice provides guidance to decision makers on how to consider applications from EEA nationals who are jobseekers or who are in involuntarily unemployment following a period of employment and are seeking to retain „worker‟ status in line with regulation 6(2) of the Immigration (European Economic Area) Regulations 2006 (“the Regulations”).

Background

2. The Immigration (European Economic Area) (Amendment) (No.2) Regulations 2013 came into force on 01 January 2014 and impose new qualifying criteria which an EEA national must satisfy in order to be exercising Treaty rights as a jobseeker. The amendment also incorporates the Upper Tier Tribunal judgment of Shabani (EEA – jobseekers; nursery education) [2013] UKUT 00315 (IAC) into the Regulations at regulation 6(5)(b).

3. This applies to all decisions made on or after 01 January 2014.


Jobseekers status

4. The Home Office has to-date interpreted regulation 6(2) to mean that jobseeker status only applies „on-entry‟; meaning that a person can only be a jobseeker for the period after which they enter the UK in search of work, but before they are first employed. The Home Office has not to-date regarded those people who have worked in the UK and who voluntarily leave employment but then seek work again, as jobseekers. 5. Following the Upper Tribunal case of Shabani, this position has changed and it is now the case that someone who voluntarily leaves employment, without retaining worker status, can revert to being a jobseeker without needing to leave and re-enter the UK, provided they are genuinely seeking employment and have a real chance of being engaged.

6. Regulation 6(4) of the Regulations amends the definition of „jobseeker‟ in line with Shabani. A jobseeker is now defined as a person who:

 entered the United Kingdom in order to seek employment or  is in the UK seeking employment immediately after being a qualified person under regulation 6(1)(b)-(e); and
 can provide evidence to demonstrate that they are seeking work and have a genuine chance of being engaged.

7. An EEA national who meets the above conditions cannot continue to be regarded as a jobseeker for longer than six months unless they can provide compelling evidence that they are seeking work and have a genuine chance of being engaged. See paragraph 8 of this notice for an example of this.

Retaining worker status following employment of at least one year’s duration

8. Under revised regulation 6(2)(b), an EEA national who is no longer working shall not cease to be treated as worker, where they are in duly recorded involuntary unemployment after having being employed for at least one year, and where they meet the following conditions:

 the EEA national has registered as a jobseeker with the relevant employment office; and  the EEA national entered the UK in order to seek employment or;  the EEA national is in the UK seeking employment immediately after being a qualified person under regulation 6(1)(b)-(e); and  the EEA national can provide evidence to demonstrate that they are seeking work and have a genuine chance of being engaged.

9. An EEA national who meets the above conditions cannot retain the status of worker for longer than six months unless they can provide compelling evidence that they are seeking work and have a genuine chance of being engaged.

10. For example, an EEA national enters the UK as a student and shortly after commences employment. After 13 months he is made redundant and registers his unemployment with Job Centre Plus. Eight months later, he is still seeking work but provides evidence that he has recently undertaken further training which guarantees him a position as an apprentice upon completion of the training course in two months time. In this instance, this would be sufficient to demonstrate that he has provided compelling evidence that he has a genuine chance of being engaged in work.

Retaining worker status following less than one year’s employment

11. The new requirement at regulation 6(2)(ba) requires that for an EEA national to continue to be treated as a worker where they do not satisfy 6(2)(b) (i.e they were employed for less than one year prior to seeking work) they must satisfy the following:  the EEA national has registered as a jobseeker with the relevant employment office; and  the EEA national entered the United Kingdom in order to seek employment or;  is in the UK seeking employment immediately after being a qualified person under regulation 6(1)(b)-(e); and
 the EEA national can provide evidence to demonstrate that he is seeking work and has a genuine chance of being engaged.

12. In addition regulation 6(2A) specifies that persons qualifying under this category may only retain worker status for a maximum of six months. This is regardless of whether they can provide compelling reasons for this. This reflects the fact that persons in this capacity have not been in employment for any significant length of time.

13. For example, an EEA national entered the UK as a worker for four months after which he was made redundant. He registers with Job Centre Plus, but after a further six months, has still not obtained any employment. In this instance, the EEA national would not be able to retain his worker status any longer and must either become a qualified person in another capacity (for example as a student or self-sufficient person, but not a jobseeker) or he must leave the UK if he has no other right to reside.

Appeal rights

14. Where any of the above factors are not satisfied, the application should be refused in line with regulation 6(2).

15. All such refusals would attract an in-country right of appeal subject to the restrictions in regulation 26.

16. If you have any queries about this notice, please contact <REDACTED – section 40(2)> on <REDACTED – section 40(2)>, or email the European Operational Policy Mailbox at EuropeanOperational@UKBA.gsi.gov.uk

<REDACTED – section 40(2)> Head of European Operational Policy 01 January 2014

[andorus]

Hi Tmonaghan, just forgotten to mention while having PR I can apply for BC now (I am married to BC who is dual EU/BC citizen from Nov 16'). Also a bit frustrating bit as I can't use my spouse as sponsor due to the fact of him being BC now (not even for the period of my 5 months where he was indeed my sponsor?!) Thanks

[tmonaghan]

Andorus ,

She may not be your sponsor because she is now a BC; but she can be your source of income for the time you were not employed, thinking that you had had a CSI?

There could be two ways for you. The one would be to submit your PR application now and wait for the result; including a written statement for the Caseworker.

Or, if you are not in a hurry you could always wait for the Home Office to officially announce when it will be possible for you to submit an application for the Settled Status. This status will be providing you with the same rights as a British Citizen although you won't have the right to vote.

In addition, the Home Office will be dropping the CSI requirement for those who have been lawfully living in the UK but did not have CSI cover. During those times you will need to mention that you were a self-sufficient and relying from your spouse income.

On that application you'll be able to inform the Home Office that you depended on your spouse income during times when you were not a jobseeker or working. Hopping that both have a joint Bank Account.

I am saying that applying for PR at this time will be a waste of time and money because you'll have to apply again for the Settled Status before or after Brexit. Again the EU is still expecting the UK to deliver more regarding EU Citizens living in the UK.

I am sure that a more experience member of this Forum can help further based on their experiences.

[andorus]

Hi Tmonaghan,

Thanks again for your insights.
The main purpose is to obtain BC and the passport, hence Settled Status is not what I am after..
No CSI in 2015. Do you know when HO plans to drop the requirement for CSI?
I would like to understand if someone tried and managed to submit PR application with 4-5months jobseeking activity (documented letters, invitation etc) and was successful in it (I couldn't find anyone in the posts..)
Also referring to Self Sufficient option; assuming no CSI requirement, does she have to refer to the partner or would it be enough to show sufficient funds on the account?
Thanks!

[Richard W]

... just forgotten to mention while having PR I can apply for BC now (I am married to BC who is dual EU/BC citizen from Nov 16'). Also a bit frustrating bit as I can't use my spouse as sponsor due to the fact of him being BC now (not even for the period of my 5 months where he was indeed my sponsor?!)

Of course you can use him! The requirement is 5 years residence in accordance with the regulations as a qualified person or family member, and as you have noted, he was in fact your sponsor at the time. His subsequently becoming British does not invalidate that sponsorship. (Indeed, it is even possible that the EUCJ will decide that he could still sponsor you - we should get a verdict in the Autumn, in the Toufik Lounes case.)

[andorus]

Hi Richard,

Thanks for your comments.
My understanding is that he can't be my sponsor now as he can't exercise his treaty rights anymore while being BC. The only hope for this path would be positive conclusion in Toufik Lounes case.
Still it would be good to understand some real cases of documented jobseeking gap of 5 months..

Thanks

[Richard W]

My understanding is that he can't be my sponsor now as he can't exercise his treaty rights anymore while being BC.

There is no contradiction. The point is that he was your sponsor in the past, before he was a British Citizen. The relevant regulation is:

15.—(1) The following persons acquire the right to reside in the United Kingdom permanently—

(a)an EEA national who has resided in the United Kingdom in accordance with these Regulations for a continuous period of five years;
...

You are an EEA national who has resided in the United Kingdom in accordance with the EEA Regulation for a continuous period of five years. For some of the time you needed a sponsor; for most of it, you did not.

[andorus]

Hi Richard,

Thank you for your comments.
I have found one discussion post with Home Office on similar matter - please have a look below:
https://www.whatdotheyknow.com/request/ ... ily_member
Please let me know your thoughts on it.

Thanks

[Richard W]

Thank you for your comments.
I have found one discussion post with Home Office on similar matter - please have a look below:
https://www.whatdotheyknow.com/request/ ... ily_member
Please let me know your thoughts on it.

We had a lengthy discussion on the topic. In the end, we discovered that, in 2015 at least, the Home Office interpretation was that it did apply when the sponsor subsequently acquired British nationality. However, it wouldn't apply to you unless you held a residence certificate in 2012. I'd be surprised if you did; most EEA nationals didn't.

[andorus]

Hi Richard,

Thanks for your reply.
I am a bit lost about 2012 'cut off' and its consequences.
My husband got permanent residence in March 2015 and BC in Nov 2016 (from 2011 he just hold registration certificate, one year from his arrival to the UK in March 2010).
In your understanding can I use him as a sponsor for the period from Jan-May 2015?

Many thanks in advance.

[Richard W]

My husband got permanent residence in March 2015 and BC in Nov 2016 (from 2011 he just hold registration certificate, one year from his arrival to the UK in March 2010).
In your understanding can I use him as a sponsor for the period from Jan-May 2015?

Yes, you can use him for that period to qualify for PR. Indeed, if he still has his EU citizenship, you can use him to qualify for a DCPR. (Actually, submitting his British passport would satisfy the letter of the EEA Regulations! However, I don't recommend it if he retains his original nationality.)

[andorus]

Hi Richard,

Thanks for that.

I am still a bit confused by the note:

To note: It remains the position that the transitional arrangements do not apply in
circumstances where a dual EEA/British citizen marries their family member after
the transitional arrangements have ended. These cases will continue to fall
outside the scope of the Regulations.

We got married in May 2015 and the transitional agreement are taking about the date of 16 July 2012. However we were in the relationship before that day.

What are your thoughts, please?

Thanks

[Richard W]

Hi Richard,

Thanks for that.

I am still a bit confused by the note:

To note: It remains the position that the transitional arrangements do not apply in
circumstances where a dual EEA/British citizen marries their family member after
the transitional arrangements have ended. These cases will continue to fall
outside the scope of the Regulations.

1. Unless you have an RC pertaining to 2012, it is irrelevant.
2. You husband was not British during the 5 months of the gap, so you do not need the transitional arrangement at all.

We got married in May 2015 and the transitional agreement are taking about the date of 16 July 2012. However we were in the relationship before that day.

Also a bit frustrating bit as I can't use my spouse as sponsor due to the fact of him being BC now (not even for the period of my 5 months where he was indeed my sponsor?!)

So what 5 months are you referring to? How was he your sponsor in Jan-May 2015?

What are your thoughts, please?

To use your husband as sponsor, you would have to argue that your time as an unrecognised durable partner should count as being a family member, in accordance with the precedent at SSHD v. Idrissa Kamagate (mentioned in eea-route-applications/eea4-pr-applicat ... 38512.html) for time spent as a subsequently recognised durable partner to be treated as time spent as a family member. Thus rather than merely applying for the recognition of the fact of having acquired PR, you would first be applying for the retrospective grant of the status of or recognition as a family member. I don't think it would succeed, but I may well be wrong.

[andorus]

Thanks Richard.
In this case family member sponsoring route wouldn't be advisable way to go ahead.
I looks like job seeking justification for 5 months has got the biggest chance unless Toufik Lounes case will be positive or HO will drop requirement for EHIC coverage in the past (self sufficient route).

What do you think, please?

Thanks

[Richard W]

Toufik Lounes is irrelevant. The problem with claiming sponsorship is that at the time of the 5 months gap, you were not recognised as a family member of an EEA national, and such status for that period has not yet been acknowledged.

[andorus]

I see Richard. Is there a simple way to recognise it? Or is it lengthy legal story? Still if this is not the way: self-sufficienct (EHIC nor required) or job seeking would be the best to go.

Thanks

[Richard W]

Is there a simple way to recognise it? Or is it lengthy legal story?

The decision in Idrissa Kamagate is not widely known; I have not heard of any mention of it in Home Office instructions. I fear you would be close to establishing new law, which is usually an expensive way to do things.