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Moderators: Casa, Amber, archigabe, batleykhan, ca.funke, ChetanOjha, EUsmileWEallsmile, JAJ, John, Obie, push, geriatrix, vinny, CR001, zimba, meself2
John, I hate to disagree with experienced persons ETC... But there is no law set in which states there is a minimum time, and infact a reply from the Home Office confirmed this...John wrote:Three months is considered the minimum time of you exercising Treaty Rights in an economic way before the application for EEA Family Permit can be made.
An appeal is available if necessary, but hopefully that would not apply.
I state that 1 day could be enough as if you earn a substantial amount in that day - is it not effective... What is the "average min wage" income of 1 day in the UK...John wrote:Therefore a very short time could well cause problems. Wayne in that link thinks one day is enough, but to that I say, really? Is that enough time to show that the employment is genuine and effective?
I agree on that, no doubt! Don't get me wrong... However, As established in Carpenter... and stated in many cases... there is "dilution" of what constitutes free movement, where by actual movement doesnt necessarily need to happen.John wrote:Can we at least agree on this? That a longer time is clearly better than a short time? Or put it another way, why risk disappointment or delay (because of the need to appeal), when waiting a bit longer will show that the work situation is genuine and effective.
But that doesn't mean that there won't be in the future...John wrote:To my knowledge there has been no tribunal case on the point that you are making. Do correct me if I am wrong.
This I wasn't aware of... Can you point me to this case?John wrote: and the student lost! In other words a minimal employment or self-employment does not amount to exercising Treaty Rights as a worker or self-employed person.
So I think the same sort of principle would be applied to the point you are making.
John, I know you've quoted the above case from the DMG... but I can only find the following two ref's...John wrote:Have a look at this document, and in particular go to 071179. This refers to the case of 1 De Biasi v Secretary of State for the Home Department [2012] EWCA Civ 1015.
But, the work on the next paragraph, was this the case on the student's case? or is this a different case ( as I say above, I cant find the text's for the case ):So 8 hours per week, for a period of 8 weeks was held to be insufficient to make the person a "worker".
Lots of use of the expression "genuine and effective" in that document.
I'm guessing this is why it was ruled that he needed CSI, as he hadn't aquired PR during the 13/14 years of residence...?Example
Thijs is a Dutch national. He first came to the UK in 1999 and has resided in the UK
ever since. He claimed IS on 2.1.13. The DM established that the only work Thijs
had done in the UK was a period of 8 weeks in November and December 2012
when he worked as a part-time cleaner for 8 hours per week at an hourly rate of £10
per hour. There was no evidence that he had been self sufficient at any time since
1999, nor that he had genuinely been seeking employment during that period. The
DM concluded that Thijs was not a worker and that accordingly he had not retained
worker status.
and then reading...
Genuine and effective work
071180 The DM should be satisfied that the work is genuine and effective and is not on such a small scale as to be marginal and ancillary1.
As the terms ''genuine and effective'' and ''marginal and ancillary'' are not defined in EC law the DM should decide each case on its own merit.
The DM should take account of all work done in the UK and consider, amongst other things
1. the period of employment
2. the number of hours worked
3. the level of earnings
4. whether the work was regular or erratic.
It appears that 15 hours a week for 16 weeks = effective... so stating three months DOES appear to be a good guideline, as if refused, you can always rely on a government issued document as support in appeal.Example
An EEA national who claims JSA shows that he has been working for three hours per day, five days per week for the last four months. The DM decides that the work is genuine and effective because it is not on such a small scale as to be marginal and ancillary. The work was on a regular basis continuing for a reasonable length of
time.
Thanks John, I'd already found that one - but couldnt find the case quotedJohn wrote:Also look at this document and search for ..... MDB ... starting on page 13.
but that would go against equality? A worker is still a worker... and a Singh case still states that the returning person is the bearer of another states passport...?Obie wrote:However one can expect the threshold to be much higher in a Surinder Singh case.
I am awaiting this already - (I think it was you who posted this previously? - along with (S?))Obie wrote: Also see. O
No one can produce authority at a national level or CJEU level, that comprehensively deals with this issue.
I believe things will be much clearer after that judgement is promulgated.
Sorry, Wasn't trying to get you to speculate. It just seemed to me that you were saying (and I guess we know it is true of them) that the HO would say that a British Cit returning as Singh would be evaluated on their "meaningful work" at a higher threshhold than a EEA Cit coming to work in the UK would be?Obie wrote:It may be best to wait until the judgement is out, rather than speculate, which you are trying to get me to do. Something I dont intend to indulge in.
I noticed that...Obie wrote:It should be noted that Barry had been in the UK for a lengthily period. He had work history.
yes thats right and good luckKader wrote:Ps - I was reading the comments from another post on this forum regarding the rules on a schengen visa. It appears that another person was advised (regarding moving to the Netherlands) that his wife could apply for a schengen visa to enter the country with him even though he did not yet have a job. Does that seem correct to you?
If so does that mean that now I am in France and working and with a apartment, I can ask her to join me? Even without having received pay or having a bank account?