EEA2 Apply tomorrow, need last advice

[Minhr]

Tomorrow 16.04.2015 I'm going to send my application for EEA2. Also tomorrow is the last day my EEA is valid.
All documents are prepared just have one question I've already asked but, there is new detail I'm interested in.
My wife has zero hour contract. She started working at this place month ago, so she has her payslips only for 3 weeks. I'm also including her time sheets which show that she was working 20-35 hours per week. I'll also include letter from employer both written on letter-headed paper and in application form. And emails showing that my wife was actively looking for a job, as she was not working for 1 month after being in UK for 3 month (just don't want to have problem if they say that she was not exercising her treaty right after 3 month being in UK).
I am not going to send contract, but in payslips it is written that my wife receives holiday pay every time, so think that it is obvious that she has zero hours contract and it can be a minus. And I don't know how to answer questions in application form regarding her salary and number of working hours per week. Just take an average or minimum? Also there is a question if her position is permanent, temporary or fixed term? What should I choose? I can choose permanent, but her employer says her that it is temp contract (he didn't mention it in his letter), and if I choose temp than I have a question regarding expected duration of employment. Please advice how to answer this question?

And the last question. During her 4th working week she has worked only 14 hours, because it was 1 bank holiday and she took 2 additional days off, because her sister came to visit us. But after that she again was working at least 20 hours a week. Will it affect application, or it is fine. I was thinking about sending additional payslips little bit later to show that she work enough hours, but this week doesn't look good, but I can add explanation letter.

Thank you in advance

[rosebead]

You are not even legally required to use the form for an EEA application, so feel free to ignore questions on the form or write over them if you consider them legally irrelevant.

You could write that your wife averages x amount of hours per week next to the question concerned. If the position is temporary, then tick so, but for duration of employment just write "tbc"or "unknown". If there are some weeks where the hours are low, it does not matter, as long as your wife has regular work.

Your wife is legally residing as long as she is at this very second exercsing Treaty rights; it is irrelevant what happened even yesterday.

[Minhr]

You are not even legally required to use the form for an EEA application, so feel free to ignore questions on the form or write over them if you consider them legally irrelevant.

You could write that your wife averages x amount of hours per week next to the question concerned. If the position is temporary, then tick so, but for duration of employment just write "tbc"or "unknown". If there are some weeks where the hours are low, it does not matter, as long as your wife has regular work.

Your wife is legally residing as long as she is at this very second exercsing Treaty rights; it is irrelevant what happened even yesterday.

Thank you for your reply!
I've heard that if even one payslip shows less than 16 hours per week than application will be rejected.

[rosebead]

I've heard that if even one payslip shows less than 16 hours per week than application will be rejected.

If that's the case then that is an unlawful refusal and dispoportionate to what is required under Community law. That said, some caseworkers are not the brightest of the the bunch. You would have to appeal such a refusal or re-apply and hope you get a more reasonable caseworker.

[Minhr]

I've heard that if even one payslip shows less than 16 hours per week than application will be rejected.

If that's the case then that is an unlawful refusal and dispoportionate to what is required under Community law. That said, some caseworkers are not the brightest of the the bunch. You would have to appeal such a refusal or re-apply and hope you get a more reasonable caseworker.

Thank you.
Than I have another question. My wife wants to participate in medical trial, and if she will, it will be one week during May when she will have 0 working hours and one week with less than 16 hours. What will you advice, participate in this trial or better not? In another forums I received advice not to participate.

[rosebead]

The Home Office are unreasonable, so it might be the case that a caseworker will refuse because your wife has not been long in the job and has had a couple of weeks where she fell short. However, this would be contrary to EU law which looks at the overall picture rather than at just a snapshot, such as the length of employment, regularity of work, whether there's a contract, whether there's paid sick leave or annual leave, and so on. So even if an EEA national worked a low amount of hours a week, if it's regular and has been for several months, this would be considered genuine and effective work under EU law even if the Home Office doesn't think so. If the medical trial is important, I would say do it, and appeal any refusal or re-apply.

By the way, if the employer has left the employment open-ended without setting an end date, this is permanent work and not temporary.

[Minhr]

The Home Office are unreasonable, so it might be the case that a caseworker will refuse because your wife has not been long in the job and has had a couple of weeks where she fell short. However, this would be contrary to EU law which looks at the overall picture rather than at just a snapshot, such as the length of employment, regularity of work, whether there's a contract, whether there's paid sick leave or annual leave, and so on. So even if an EEA national worked a low amount of hours a week, if it's regular and has been for several months, this would be considered genuine and effective work under EU law even if the Home Office doesn't think so. If the medical trial is important, I would say do it, and appeal any refusal or re-apply.

By the way, if the employer has left the employment open-ended without setting an end date, this is permanent work and not temporary.

But how they will even know that my wife had few weeks with reduced hours?

[rosebead]

Because you mentioned that her payslips will show it. If they don't show it, then you should stop worrying and just send everything in. It seems to be taking on average 4-6 months to process forms currently so by the time they reach your wife's application, she would be most assuredly a genuine and effective worker if she has kept on getting regular work even if the hours were as low as 10 hours a week. There is even case law that says that 10 hours of work a week cannot preclude someone from being considered a worker, and that 10 weeks of work could be considered genuine and effective.

[Minhr]

Because you mentioned that her payslips will show it. If they don't show it, then you should stop worrying and just send everything in. It seems to be taking on average 4-6 months to process forms currently so by the time they reach your wife's application, she would be most assuredly a genuine and effective worker if she has kept on getting regular work even if the hours were as low as 10 hours a week. There is even case law that says that 10 hours of work a week cannot preclude someone from being considered a worker, and that 10 weeks of work could be considered genuine and effective.

Thank you for information. She just thinking to participate in trial next month, so it is not even happend. I sent her 3 payslips covering 3 weeks, as she is employed for 1,5 month and these are the only payslips she has. Minimum number of hours shown in these payslips is 20 per week. But normally she works more than 30.