EEA2 application problem

[nico2185]

Hello everyone

My partner and myself entered a civil partnership in early July 2011, which was a very happy time. My partner is Filipino and was already in the UK on a student visa when we first met. I am a Belgian national setting up a business as self-employed sole trader here in England and have been here since late 2006 (a pair of hotel boats which I am still fitting out).

My situation is as follows:
- I am still fitting out the boats and therefore have not started trading yet.
- I have an accountant dealing with the financial side of my business as my agent.
- I opened a business bank accountant with Barclays in 2006.
- I registered for a NI number in 2006 but am not yet paying NI contributions.
- I registered for VAT, have a VAT number and VAT Returns are filed every quarter (I am entitled to claim back VAT on my business purchases).
- I registered with HM Revenue&Customs for Tax purposes, and Tax returns are filed every year since 2007 (It shows income of £0 (nought) as I’m not trading yet).

A few weeks ago, my partner sent an EEA2 application form to the UKBA including the following documents: an accountant’s letter, a profit/loss statement from the accountant, my VAT registration letter and a VAT return, my NI number registration letter, a few invoices showing business purchases, and some business bank statements.

The UKBA has just returned the whole application stating that the documents are insufficient to consider his application. What they require is as follows:

- Recent evidence from HM Revenue and Customs that I am actively engaged as self-employed and registered for and paying tax and NI contributions;
- Evidence showing income earned such as bank statements and accountant letter (As I said before I have no income as I’m not trading yet);
- Invoices or customers testimonials in respect of work done;
- Evidence of advertising/promotion material.

Following this application being returned and knowing that the business will be ready by spring or summer 2012, I have a few questions:
1) From a legal point of view, am I already or am I not exercising my Treaty Rights in the UK?
2) What should we do in the meantime as the business is not open and UKBA seems to consider I’m not exercising my Treaty rights?
3) What is the status of my partner and is there a risk he might be forced out of the country?
4) Does my partner have the right to work now that we are in an official civil partnership?

It feels like the UKBA is playing tricks although the letter states that it is not a formal determination of his status under the Regulations. Their purpose, so they go on, is to enable him to assemble a complete dossier of supporting evidence and to submit that with a fresh application when he is in a position to do so.

Any advice and suggestions on this situation would be much appreciated.

Many thanks.
nico xx

[nico2185]

please help me?

[Amarula]

please help me?

Since you are not doing any business actually yet, then you cannot prove that you are exercising treaty rights, so you will have to submit another application later, when you do get some work and can prove it.
Nobody will force your partner anywhere (but he will have to prove his right to work, which is not possible since you are not trading), so it's just a matter of convincing home office there is bona fide business activity happening.

[fysicus]

I am still fitting out the boats and therefore have not started trading yet

Apparently you are doing this for five years now without generating any income. To be honest, to me it looks more as an expensive hobby than a viable business, but if you are happy with it, so be it.

Anyway, it means that for the purpose of Directive 200/38 (and the EEA Immigration Regulations) you are now exercising treaty rights as self-sufficient (assuming you do not rely on public funds) and not as self-employed, and your partner can apply for a Residence Card on that basis, which means an entirely different set of supporting evidence. In particular you are likely to need CSI (Comprehensive Sickness Insurance).
The alternative is of course to wait until you are actually running a profitable business (which you say will be in a few months time).

[EUsmileWEallsmile]

I am still fitting out the boats and therefore have not started trading yet

Apparently you are doing this for five years now without generating any income. To be honest, to me it looks more as an expensive hobby than a viable business, but if you are happy with it, so be it.

Anyway, it means that for the purpose of Directive 200/38 (and the EEA Immigration Regulations) you are now exercising treaty rights as self-sufficient (assuming you do not rely on public funds) and not as self-employed, and your partner can apply for a Residence Card on that basis, which means an entirely different set of supporting evidence. In particular you are likely to need CSI (Comprehensive Sickness Insurance).
The alternative is of course to wait until you are actually running a profitable business (which you say will be in a few months time).

Some businesses seem to run for ages without generating any income...

Are there customers perhaps?

[nico2185]

thank you for the reply heres a gather information i found , can you check for me if this is correct information they give to me,,,,,
My Filipino partner lost his job last year November 2011 his employer dismiss him in his work because he don't the documents to prove that he has the right to work here which is the residence card,,my civil partnership with him is not enough,,,,,,,,until now he don't have work





Dear Sir/Madam,

Please find below the reply to your enquiry. Please note that the advice given by Your Europe Advice is an independent advice and cannot be considered to be the opinion of the European Commission, of any other EU institution or its staff nor will this advice be binding upon the European Commission, any other EU or national institution.

Dear Mr,

Thank you for contacting Your Europe Advice.

Under EU law, as an EU citizen you have a right to reside in another EU country provided that either (1) you are working there in an employed or self-employed capacity or (2) you study or (3) your are not working but have adequate financial resources to support yourself while living there so that you are not an unreasonable burden on the social assistance system of that country AND you have health insurance cover in place.

When you arrive in the UK, you are not obliged to obtain a residence card. However, you may choose (but are not obliged) to obtain a registration certificate from the Home Office (this may facilitate your dealings with the public authorities).

Article 8 of the Directive places a limit on the administrative formalities which the UK authorities may require:
“3. For the registration certificate to be issued, Member States may only require that:
Union citizens to whom point (a) of Article 7(1) applies [i.e. workers and self-employed persons] present a valid identity card or passport, a confirmation of engagement from the employer or a certificate of employment, or proof that they are self-employed persons, …”
The Directive is implemented in the UK by the Immigration (EEA) Regulations 2006, however, the Regulations do not specify the means to prove your status as a self-employed person.
It is clear that the UK authorities are entitled to require proof that you are self-employed. However, in accordance with the purpose and intent of the Directive and the European Court of Justice case law, you must be able to prove your status as self-employed by any possible means.
As a self-employed person, you are required to show that you have taken all steps to register as a self-employed person.
We understand that you have registered for a NI number but you have not been paying NI contributions, you registered for VAT, have a VAT number and have filed VAT Returns every quarter, have registered with HM Revenue&Customs for Tax purposes, and have filed tax returns every year since 2007. We therefore consider that you have complied with all requirements for self-employment.

You should also know that the Directive does not require you to demonstrate that you have started trading or are making a profit. We consider that the Home Office should treat you as being engaged in self-employment even if you have not traded yet, if you are able to demonstrate that you have taken active steps to set up your business. This would be the case if you are able to demonstrate that you have made purchases towards your business and have been using your savings to support yourself in the meantime.

We suggest that you contact the Belgian centre of SOLVIT, the EU’s online problem-solving network to see if they can assist you in resolving this issue:
http://ec.europa.eu/solvit/site/index_en.htm

You will find further information on how to contact SOLVIT at the end of this message.

As to your partner’s current position, we suggest that he should refile his application for a residence card and include proof of purchases made towards your business and evidence of your savings. You should know that the residence card serves to prove his right of residence and right to work in the country in question. However, his rights are not conditional on having the permit – the permit merely serves as evidence of his rights. During the time your partner is awaiting the card, he is free to work in the UK without the need for a work permit.

This is also confirmed by the UKBA’s website:

“If a citizen of the European Economic Area (EEA) or Switzerland is living in the UK in accordance with the Immigration (European Economic Area) Regulations 2006, their family members who are not EEA or Swiss citizens also have the right to live here.
… You do not need to obtain documents confirming your right of residence in the UK if you are a family member of an EEA national.
However, you may be inconvenienced if you do not obtain this confirmation, as:
 you may have difficulty proving that you are lawfully resident in the UK;
 if you leave the UK, you will usually need to obtain an EEA family permit before returning here, in order to guarantee readmission as the family member of a qualified EEA national; and
 you may find it difficult to obtain or change employment.”
http://www.ukba.homeoffice.gov.uk/eucit ... ts-family/

We hope this answers your query.

We remain at your disposal, should you require further information.

It seems that your case may be further dealt with by SOLVIT which is a free-of-charge network that seeks to solve problems caused by the misapplication of EU rules by public authorities in another member state. Find more about SOLVIT. If you want to pursue your case with SOLVIT please click on the following link.

To submit another enquiry, please visit Your Europe Advice, but do not reply to this e-mail.

Yours sincerely,

Your Europe Advice

[EUsmileWEallsmile]

I have sympathy for your position. That said, the easier it is for a person to prove they are exercising treaty rights the better.