Citizenship refused - few months self-employment

[monab]

Hello everyone,

I apologise in advance for the long post, please stay with me on this.
I am an EEA national that has just been refused British citizenship. The issue seems to be related to my self-employment status over the last 11 months.
FYI, I have a PR card and a recognised permanent residence status from Sept 2014. My application has been submitted on 11th January 2016 through NCS Hammersmith.

I have been in full time employment until May 2015 when I became self employed. The issue is that since then I only worked for one client for a total of just 3 months, so I did not have constant income as a self employed person. This year I will not earn more than the threshold to pay taxes, but I made a payment for taxes anyways and sent the receipt in support of application.
I was requested to provide additional information for the period May 2015 till January 2016 (the self-employed period). I supplied documents as follows:
- 3 invoices and contract (with a determined period of a couple of weeks) for that 1 client
- Registration with HMRC and UTR number
- Gateway number letter
- Payment slip for taxes (that I made despite not being yet required to)
- Bills and other letters relevant to this period proving my residency in UK.

Given I only started as self-employed in mMy 2015 I was not yet due for a tax return in January 2016 when I made the application.
On the 8th of April I have been sent a rejection letter. The letter stated no clear reasons just ‘ We cannot be satisfied from the documents available that you meet the residence requirement and your application is refused’.

Now, my main question is, do I have a case to ask for reconsideration?
The letter gives no clear explanation of the reasons why my application is rejected, so is hard to say whether the decision is correct or not.
Also, do you know which are the requirements for self-employed persons? I have found no mention of this in any official documents. Is there a certain threshold of income that makes you qualify? My assumption was that having the self-employed status is enough to satisfy residency requirements under European law.

Many thanks to all in advance.
Lastly, do you know how much time you have to request a reconsideration?

Best regards,
Mona

[noajthan]

There is some mistake, and possible injustice, here.

If you have definitely acquired PR and definitely have held a confirmation of PR card (since 2014) then you do not have to exercise treaty rights in UK anymore.
The clue is in the name, you have permanent residence.

The refusal appears to refer to proof of residency.

Whether you were self-employed or not in 2015 does not matter for this application. And whether that self-employment was a success does not matter.

All you have had to do since acquiring PR is simply live in UK.

If not married to a BC you simply have to show you were physically present in the UK 5 years ago (to the day) from your date of application to naturalise.
You also have to show your absences have been within prescribed limits (as per the naturalisation rules, not as per PR rules).
In addition, you must not have let your PR status lapse, (for example by leaving UK for 2 years or more since you acquired PR).

In your case, none of these three fundamental requirements seem to be being disputed as part of the refusal.

The only possibly valid request HO have made is clarification of:

• Bills and other letters relevant to this period proving my residency in UK

fyi - when exercising treaty rights a worker or self-employed person has to show the work is genuine & effective (as per EU law).
The UK also, somewhat controversially, seems to apply its own MET/PET tests to assess income level.
This is contrary to EU law.
But this doesn't matter for the period 2015.
You have already acquired and hold proof of having PR!!

The caseworker seems to be having difficulty with either:
a) your (recent) residency
or
b) in thinking you had to be exercising treaty rights since 2014.

Based on the above you should be able to make a case to refute both of those misunderstandings.

I believe you have a strong case as well as strong grounds for reconsideration as the caseworker has clearly made a number of procedural and admin errors in processing your application.

Be aware: there is no guaranteed timeline or 'SLA' for reconsideration, it takes as long as it takes.
Best of British luck.

[monab]

There is some mistake, and possible injustice, here.

If you have definitely acquired PR and definitely have held a confirmation of PR card (since 2014) then you do not have to exercise treaty rights in UK anymore.
The clue is in the name, you have permanent residence.

The refusal appears to refer to proof of residency.

Whether you were self-employed or not in 2015 does not matter for this application. And whether that self-employment was a success does not matter.

All you have had to do since acquiring PR is simply live in UK.

If not married to a BC you simply have to show you were physically present in the UK 5 years ago (to the day) from your date of application to naturalise.
You also have to show your absences have been within prescribed limits (as per the naturalisation rules, not as per PR rules).
In addition, you must not have let your PR status lapse, (for example by leaving UK for 2 years or more since you acquired PR).

In your case, none of these three fundamental requirements seem to be being disputed as part of the refusal.

The only possibly valid request HO have made is clarification of:

• Bills and other letters relevant to this period proving my residency in UK

fyi - when exercising treaty rights a worker or self-employed person has to show the work is genuine & effective (as per EU law).
The UK also, somewhat controversially, seems to apply its own MET/PET tests to assess income level.
This is contrary to EU law.
But this doesn't matter for the period 2015.
You have already acquired and hold proof of having PR!!

The caseworker seems to be having difficulty with either:
a) your (recent) residency
or
b) in thinking you had to be exercising treaty rights since 2014.

Based on the above you should be able to make a case to refute both of those misunderstandings.

I believe you have a strong case as well as strong grounds for reconsideration as the caseworker has clearly made a number of procedural and admin errors in processing your application.

Be aware: there is no guaranteed timeline or 'SLA' for reconsideration, it takes as long as it takes.
Best of British luck.

Hi noajthan,

Many thanks for the very quick reply!
I was not aware that once you hold PR you do not need to exercise treaty rights any more. Do you know where should I look for this in the law? (I will need it as part of the request for reconsideration)

On a different note ( I know that according to what you said this does not matter , but..), should I understand that my self-employment in this case was not 'genuine & effective'? I have also tried to launch a business that has nevertheless failed...

Thanks again for giving me hope.
Best regards,
Mona

[noajthan]

Hi noajthan,

Many thanks for the very quick reply!
I was not aware that once you hold PR you do not need to exercise treaty rights any more. Do you know where should I look for this in the law? (I will need it as part of the request for reconsideration)

On a different note ( I know that according to what you said this does not matter , but..), should I understand that my self-employment in this case was not 'genuine & effective'? I have also tried to launch a business that has nevertheless failed...

Thanks again for giving me hope.
Best regards,
Mona

See section 6 (page 10) of HO guidance to start with:
https://www.gov.uk/government/uploads/s ... r_2015.pdf

And yes, running a business is not enough on EU migration route & in context of treaty rights;
the work has to be genuine/effective rather than marginal/supplementary.
(But this is not about a business visa so assessments based on 'success' or 'failure' don't really come into the equation).

See HO guidance on these matters:
https://www.gov.uk/government/uploads/s ... _clean.pdf
- see page 19+

PR is underwritten by Articles 16 and 17 of EU Directive 2004/38/EC

More here:
http://ec.europa.eu/justice/citizen/doc ... 013_en.pdf
- see Chapter 9, page 24+

Suggest apply for reconsideration pointing out:

• you have had PR since 2014;
  you have been free from immigration time restrictions for over 12 months before your application;
  you have had no need to exercise treaty rights so economic activity is immaterial since acquiring PR in 2014;

Make sure you have demonstrated (or can demonstrate) your residency in UK since acquiring PR/2014 (and with no prolonged absences from UK since 2014).

[monab]

Many thanks for all your help. I have requested reconsideration and I shall update this post once I receive an answer.
In the meanwhile, I have called the Gov help line and asked advice from an EU advice service, all pointing to the same things as you did. Therefore, I have high hopes.

Best regards,
Mona

[monab]

UPDATE:

Hi all,

Following the refusal I received at the beginning at the year and my NR request in April, I have now received my long awaited decision: Reconsideration has been successful and I have been granted British citizenship.

I have found out in the meantime (from official Gov data) that almost 50% of NR application are successful, so this should only be an encouragement for the ones who strongly feel they have the law on their side.

Thanks for all you help! Especially @noajthan

[noajthan]

That's wonderful news ending the year on a high.
Persistence clearly pays off.