Evidential Requirements for EU Nationals who are Self-Employed
EU nationals who wish to apply for settled status under Appendix EU on the basis of having worked in the UK for 5 years need to provide evidence of their work history over the qualifying period. This is a requirement for both employed and self-employed workers.
Evidence required for the on-line application
The online application form for settled status (and pre-settled status) requires an EU national, both to provide their National Insurance Numbers (NIN). The Home Office then makes a check with the tax authorities as to whether the EU national has been working – and residing – in the UK for the requisite 5 year period.
Settled status or permanent residence?
Some EU nationals who have been residing in the UK for more than 5 years may still wish to apply for permanent residence status under the Immigration (European Economic Area) Regulations 2016 rather than for settled status under Appendix EU. This is because the date on which settled status will be granted is the date of the decision on the application; for permanent residence it can be ‘back-dated’ to when the 5 year qualifying period was reached.
An application for naturalisation as a British Citizen can be made after 12 months’ residence as either a settled person or 12 months after the date permanent residence was reached. Therefore if the EU national has been in the UK for more than 6 years and wishes to apply for permanent residence (NB: before 31 October 2019), they may request that their status is back-dated to more than 12 months before the application was made (i.e. to the date when the 5 year qualifying period was actually reached), they may then be able to apply immediately to naturalise as a British Citizen.
Have the definitions of self-employment changed?
The definition of self-employment under Appendix EU has not changed; it remains as it was under the Immigration (European Economic Area) Regulations 2016. The definition of what constitutes self-employment under the Regulations has been shaped by European case law, see below.
Further information which may be requested from self-employed EU nationals
The following provides a short guide to what EU self-employed nationals may need to demonstrate to the Home Office about their self-employment. This short guide is particularly relevant to those still applying for permanent residence under the 2016 Regulations. However, even under Appendix EU, which governs settled status applications, further evidence may be requested in addition to NINs. However, the evidential requirements may be less stringent than those under the Regulations. The Statement of Intent on the EU Settlement Scheme published on 21 June 2018 states:
The Home Office will work with applicants to help them avoid any errors or omissions that may impact on the application decision. Caseworkers will have scope to engage with applicants and give them a reasonable opportunity to submit supplementary evidence or remedy any deficiencies where it appears a simple omission has taken place. A principle of evidential flexibility will apply, enabling caseworkers to exercise discretion in favour of the applicant where appropriate, to minimise administrative burdens.”
Definition of Self-Employed
The definition of a self-employed person under the Immigration (European Economic Area) Regulations is an EEA national who has been exercising their free movement rights in the UK by working for themselves and generating an income in their self-employment. This definition has been adopted by Appendix EU in respect of settled status for the self-employed.
The self-employed applicant must provide evidence to show they have been undertaking economic activity (i.e. their NINs), and they may be required to show that in this economic activity they have personal responsibility for their business and personal freedom to make the decisions affecting this business.
What is ‘genuine and effective’ self-employment
The self-employed may be required to show that their economic activity is ‘genuine and effective’. The term ‘genuine and effective’ comes from European case law, and affects both the employed and the self employed.
The Home Office will consider applications from the self-employed on an individual basis, and may require evidence of the following factors:-
- Whether the activity in the business was regular or intermittent (favouring regular activity);
- How long any particular activity in the business continued. In general longer periods of activity are favoured, but the principle that there may be intense periods of activity in the business followed by less intense periods is common in self-employment is recognised but must be explained;
- Whether the plans for the business did not come to fruition, for instance if particular contracts did not extend as long as intended, or if the businessperson suffered illness unexpectedly, or if it has taken time for the business to grow are all matters which would be taken into consideration;
- The number of hours of activity in the business; and
- The level of profits or income received by the businessperson.
Voluntary work does not qualify. Payment in cash work might qualify in certain circumstances if there is evidence of the business activity taking place, such as invoices or deposits to bank accounts. ‘Zero hour’ contract situations will be assessed on a case-by-case basis.
How much should the earnings from self-employment be for ‘genuine and effective’ self-employment?
The application by the Home Office of the ‘Minimum Income Threshold’ (MET) to the profits gained by EU nationals in self-employment should be considered. These thresholds are set by the UK government on a yearly basis, and in 2019/20 are set at £166 per week, or £8,632 for the year. However, if a self-employed applicant has earned less than this threshold, this does not mean they are not self-employed, i.e. engaged in ‘genuine and effective’ self-employment under EU law. What it does mean is that the Home Office decision maker will look at the applicant’s circumstances with more scrutiny, looking in particular at the last three months of economic activity to see whether an income of £166 per week has been achieved. In circumstances where these thresholds have not been reached EU case law may be relied upon to demonstrate that the activity has been ‘genuine and effective’ under EU law, although there may still be a refusal because of the low income which would require an appeal to a judge in the First Tier Tribunal.
What evidence is required to demonstrate self-employment?
Evidence is required of self-employment for each period the applicant relies upon, i.e. for each of the 5 years leading to achieving Permanent Residence status. The Home Office considers that ‘reasonable’ evidence of self-employment includes:-
- proof of registration for tax and national insurance (NI) purposes with HMRC such as a letter of self-employed status or a letter confirming payment of tax and NI contributions;
- invoices for work done;
- a copy of the accounts of the business;
- an accountant’s letter confirming the activity of the business and the profits achieved;
- leases on business premises (where applicable);
- advertisements and publicity material for the business; and
- business bank statements and/or personal bank statements to show the receipt of the income of the business.
Contact Our Immigration Barristers
For expert advice regarding an application as a self-employed EU national for documentation attesting to your permanent residence or settled status in the UK, contact our Immigration Barristers on 0203 617 9173 or complete our enquiry form below.