Evidential Requirements for EU Nationals who are Self-Employed
EU nationals who are self-employed and are seeking to apply for Permanent Residence (PR) after 5 years residence in the UK, or to apply for settled status, need to satisfy the Home Office that they have genuinely been in business for themselves during the years or time period they rely upon in their applications. The following provides a short guide to what EU self-employed nationals need to demonstrate to the Home Office to achieve a successful application.
Definition of Self-Employed
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.
The self-employed applicant must provide evidence to show they have been undertaking economic activity, and 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 must 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, looking at 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 2018/19 are set at £162 per week, or £8,424 for the year. However, if a self-employed applicant has earned less than this threshold, this does not 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 £162 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.