Toolkit to help advisers argue client's work should give them qualifying right to reside
The EU Rights and Brexit Hub at the University of York has this week released a useful new toolkit for advisers on how to establish worker/self-employed status for EU and EEA nationals.
You can download the 11-page toolkit in Word document format here.
It was produced to help advisers argue that their client's work should give them a qualifying right to reside in the UK.
Case law of the Court of Justice of the European Union (CJEU) and the Upper Tribunal (Administrative Appeals Chamber) is cited throughout the toolkit. It notes: "The Withdrawal Agreement guarantees equal treatment protections for those with pre-settled status or a certificate of application and a qualifying right to reside in the UK, including as an EEA worker. Worker status must therefore continue to be interpreted consistently with EU case law."
According to the toolkit, the Department for Work and Pensions (DWP) often miscategorises EU/EEA workers at first instance as not having worker or self-employed status. The EU Rights and Brexit Hub says it has seen many mistakes in decisions relating to worker status. Examples include EEA nationals being told that their work does not count because it doesn't meet a minimum earnings threshold, or because they have not yet been in work for 3 months.
The EU Rights and Brexit Hub explained: "If you experience these kinds of decisions, it is worth challenging as there is a wealth of EU and UK case law establishing that decision makers should take a flexible approach to worker or self-employed status. We have had success with highlighting these judgments to decision makers and getting clients' current and former worker or self-employed statuses recognised. Former worker or self-employed status may also be important if seeking to establish a current right to reside based on retaining worker or self-employed status, permanent residence, or a derivative right to reside as the carer of a child of an EEA national former worker (this derivative right is attached to work but not self-employment)."
Topics covered by the toolkit include:
- EEA worker/self-employed status under EU Law
- The Minimum Earnings Threshold
- How to establish "genuine and effective" work
- Evidence of genuine and effective work
- The Worker Registration Scheme for past work of A8, A2 and Croatian nationals