Does time off to look after new born affect worker status.

[Obie]

This is a topic which has affected lots of people on this forum, the choice between taking time of work to look after new born or loosing right of residence. I have expressed doubts about the fact that it is unfair that people who leave the UK for a year after given birth, does not loose their continuity of residence status, but if those people were to continue staying in the UK for 6 months without working, it will affect their right to PR.

Then comes the sex discrimination aspect of this case, where the effect of this will mostly affect women than men.

At the moment people on maternity leave dont loose their residence, but if you choose to leave work without a contract of employment, and look after your new born, you will be considered not to be residing in the uk in accordance with the EEA regulation. The consequences of this is disproportionate. Your residence is broken, and you will not be able to meet the right of residence test, and you lose the right to claim any form of benefits.

The Supreme Court has finally refered questions on these difficut issues to the CJEU, and it is hoped it will be answered positively, in favour of these women, who find themselves in this very difficult situation.

Jessy Saint Prix (Appellant) v Secretary of State for Work and Pensions (Respondent)

http://www.headoflegal.com/2012/10/31/s ... secretary/

[Choi Saab]

Hi Obie,
I hope you can guide me on this. I applied in Dec '12 and notified the HO of my EU partners pregnancy and sent NHS letters confirming the pregnancy. Feb '13 my EU partner left work to prepare for our first child's arrival. Mar '13 she gave birth to our gorgeous son. Now after 7 months gap, she's back at work from Sep '13.

We didn't apply for maternity benefit or SMP. UKBA is in breach of 6 months rule in my case.

Now how does this affect my application, shall I prepare for a refusal ? Also, how does it affect her right to PR ?

Thank you in advance.

[vinny]

See also Shabani v Secretary of State for the Home Department (EEA - jobseekers; nursery education) [2013] UKUT 315 (24 June 2013).

[Obie]

Did she have a contract of employment, and a maternity leave, and now returning to work? if that is the case, then she will be fine.

In any event you will be fine as she is working at present.

[Choi Saab]

Unfortunately there wasn't any contract, it's just a verbal contract and even tho we informed the employer of the pregnancy, he treated the time off as voluntary leave and we never applied for Maternity pay or maternity benefits because we didn't know.

I received an email last week that a decision has been made which means that was during the period she wasn't working. I have a feeling that if they checked with HMRC before last week, they could've seen no employment for past 7 months. I've lost hope of it being a positive decision

[Lucky576]

If your partner worked less than 16 hours per week,their will be no record in HMRC that some one worked caz on 16 hours their is no tax paid, so no NI contribution record their.

[Lucky576]

Hi choi saab
Did you get reply? Did HO consider 7th months gap due to pregnancy ?

[Choi Saab]

No reply yet. Almost 10 months :'(

[Lucky576]

But how many months is the pregnancy gap?
Did your partner take maternity leave from employer and got paid maternity salary? Or she left job on volunteer basis? And join after ABC months?
I think That EU law said 6 months gap can be ok on certain circumstance(like pregnancy) but more than 6 months is difficult.
One of my friend's partner also left job when she was 5 months pregnant and started again when new born baby was 3 months old.
So its roughly 7-8 months gap..
Let me know what is your time duration and did you send covering letter to HO to explain this with your application.
Thanks

[Choi Saab]

Sent my last application in Dec'12 with NHS letters confirming my EU partners pregnancy. In Feb'13 my partner took a voluntary maternity leave. No statutory maternity pay was claimed, No maternity allowance was claimed, No benefits were claimed. She gave birth in Mar'13 and now after 7 months gap she started working with the SAME employer from Sep'13.

I've sent three letters to the HO after the 6 months completed and in every letter my solicitor has mentioned the maternity, pregnancy and child birth and asked the HO to 'feel free to contact us if you need anymore documents to decide our clients application'

NO REPLY TO THOSE LETTERS WHATSOEVER.

I shall keep you posted on any updates.

[Choi Saab]

Got a refusal letter today from my solicitor dated 25-09-13.
Reason is the lack of evidence to prove the continuity in employment of the EU partner. They've returned the wage slips till Oct'12 but the wage slips for Nov,Dec and January are missing and not mentioned in the reason. Thinking of appealing and sending a reconsideration request.

[Choi Saab]

P.S. Advice for the couples who are expecting while their applications are pending, make sure you claim statutory maternity pay or maternity allowances.

[Directive/2004/38/EC]

P.S. Advice for the couples who are expecting while their applications are pending, make sure you claim statutory maternity pay or maternity allowances.

Very important!

[askmeplz82]

P.S. Advice for the couples who are expecting while their applications are pending, make sure you claim statutory maternity pay or maternity allowances.

Very important!

Any idea what benefit EU national can claim if out of JOB voluntarily and register as Job seeker but stop seeking job 1 month before baby due and 1 month after

Are there any government benefit available apart from income support that doesn't effect future PR application ?

[Lucky576]

So if eea national left work voluntary for 6 months( for pregnancy and baby)and start another job after that how can we cover that period? I mean whats the tolerance (grace period)in EU law for continuously exercising treaty ?
For example work for 2 years left for 6 months(no maternity paid ) just left the job for 6 month and than start with new employ .
Is that continuity of 5 years been broken or EU law will take 6 month as exercising?

[Choi Saab]

Not an expert opinion but I think if you claim maternity money either from employer or the govt, you will keep the employment status for upto 9 months. If you take a voluntary maternity leave upto 9 months and return to the SAME employer, that too is fine. In both cases your child must've been born during those 9 months.

In all other cases, less than 6 months out of work doesn't affect your worker status.

[askmeplz82]

So if eea national left work voluntary for 6 months( for pregnancy and baby)and start another job after that how can we cover that period? I mean whats the tolerance (grace period)in EU law for continuously exercising treaty ?
For example work for 2 years left for 6 months(no maternity paid ) just left the job for 6 month and than start with new employ .
Is that continuity of 5 years been broken or EU law will take 6 month as exercising?

Copy/paste from What do they know website: https://www.whatdotheyknow.com/request/ ... ing-224237

2) Does UKBA have policy relating to working EU citizen who quits her
job or is fired because she is pregnant or who quits her job after the
birth of a child in order to care for the child. Is she deemed to be a
jobseeker, disabled, not a "qualified person", or is it handled in some
other way? Does it depend on whether she qualifies for Statutory
Maternity Pay? How long does each policy apply? (This has an impact on
both length of legal residence calculations for permanent residence, as
well as right of residence for family members).

Home office reply:

There are a number of variables quoted here.

If an EU citizen has left her her job due to pregnancy or quits after
the birth of a child in order to become a full time carer then she is no
longer classed as a qualified person under the definition of 'worker' as
defined by the Immigration (European Economic Area) Regulations 2006.
This is because she will not be actively seeking work. However, she may
be in a position to be regarded as a qualified person on the basis of
self-sufficiency as long as evidence of self-sufficiency can be provided
as detailed on regulation 4(1)(c).

A woman who has stopped work temporarily because of pregnancy or
childbirth will continue to be classed as a worker as along as she
remains subject to a contract of employment.

[Lucky576]

(I)So if women left work for 6 month and started job than she was not exercising treaty rights( assuming no contract of employment and no maternity leave) i mean quit job for 6 -7 month and start with new employer, so her 5 years of continuity has broken??????
(2)What kind of proof she can show that she was self sufficient?
Enough money in bank ( bank statement) ?

(3)All i want to understand EU law on that if someone EEA male or female left job for any reason and didn't seek work for 6 month and after 6 month got new job... What is the status than. I guess 6 month is the tolerated period in EU law???

[askmeplz82]

(I)So if women left work for 6 month and started job than she was not exercising treaty rights( assuming no contract of employment and no maternity leave) i mean quit job for 6 -7 month and start with new employer, so her 5 years of continuity has broken??????
(2)What kind of proof she can show that she was self sufficient?
Enough money in bank ( bank statement) ?

(3)All i want to understand EU law on that if someone EEA male or female left job for any reason and didn't seek work for 6 month and after 6 month got new job... What is the status than. I guess 6 month is the tolerated period in EU law???

You are right .. I know that's very harsh punishment for a pregnant women. I hope very soon people can challenge this rule. It's indirect discrimination

but having said that; EEA national still can qualify as self sufficient . Yes sufficient fund in the bank account ( EEA national ) or NON EEA national family member can also help him/her but most important thing here is comprehensive sickness insurance. So, Insurance + sufficient fund

Sufficient fund : no minimum / maximum all you need to prove that amount is more then enough to pay rent and living expenses

[Directive/2004/38/EC]

(3)All i want to understand EU law on that if someone EEA male or female left job for any reason and didn't seek work for 6 month and after 6 month got new job... What is the status than. I guess 6 month is the tolerated period in EU law???

Unclear what period of non-employment is ok. One day might be ok, but likely 6 months is not. There is not clear case law as far as I know.

[askmeplz82]

If your partner worked less than 16 hours per week,their will be no record in HMRC that some one worked caz on 16 hours their is no tax paid, so no NI contribution record their.

Well i know people paying Voluntary National Insurance contributions even if they working less hours

[askmeplz82]

a forum member PR accepted by Home Office though his EEA national wife did not work throughout the 5 years April 2007 to April 2012 and only applied for comprehensive sickness insurance before sending application EEA3

the forum member is : http://www.immigrationboards.com/profil ... le&u=72369

[Lucky576]

[quote
Well i know people paying Voluntary National Insurance contributions even if they working less hours[/quote]

But if someone worked 16hours their record will be not in HMRC so how HO can check with HMRC, and also will they considered this as exercising treaty right?

[askmeplz82]

[quote
Well i know people paying Voluntary National Insurance contributions even if they working less hours

But if someone worked 16hours their record will be not in HMRC so how HO can check with HMRC, and also will they considered this as exercising treaty right?[/quote]

----------------------------------------------------------
If someone not paying any TAX then there will be no record but still you can call HMRC and check. But if someone paying voluntary insurance contribution then there will be record.

People pay Class 2 national insurance contributions even if they working 8-14 hours for the following following benefits:

- they count towards State Pension when someone retire
- they entitle someone to the Employment and Support Allowance (previously known as Incapacity Benefit)


please check this link:

http://www.hmrc.gov.uk/industrial-compe ... /index.htm

[Directive/2004/38/EC]

a forum member PR accepted by Home Office though his EEA national wife did not work throughout the 5 years April 2007 to April 2012 and only applied for comprehensive sickness insurance before sending application EEA3

the forum member is : http://www.immigrationboards.com/profil ... le&u=72369

I think this might be the wrong link. This person has only posted about British citizenship application