Terms & Conditions

[jessica]

A person comes here in 2005 from Lithuania.

She states since 2006 she has been a self-employed cleaner.

She has returned to being a self-mployed cleaner 18 hours per week earning £1200 per annum, wtc and ctc and child benefit . She states she cannot work more hours as she relies on free childcare when at work-
She has 4 children.

She has a accession state worker registration scheme registration card showing it was issued in 2005.

She has provided her hmrc tax returns.

Claim has been refused as not genuine and effective work.

Appeal now received and i’m not sure I agree with the decision.

What do you think?

Many thanks. :santa:

[Anonymous]

Totally your call, but here are a few suggested pointers:

1. Some argue that the concept of “effective and genuine” work does not apply to self-employment. I think it must apply

2. When deciding whether work is effective and genuine, you can look at both factors that are intrinsic to the work itself (is it work of econoimic value to the employer or, in the case of self-employment, to the client? Hours per week versus duration of employment) and factors outside the work, such as whether the person earns enough for the job top be worthwhiole to him/her and whether s/he has to supplement the work by claiming social assistance

3. In this case, I would say the amount of earnings counts against your claimant while the hours (if true) and the duration are in her favour

4. One thing I would be interested to know is: who are her clients and how is she paid? Is there an audit trail of invoices and payments into her bank account? If she is cleaning offices or public buildings, that is in her favour, if she is cleaning domestic premises and gets paid in cash I would want to know a bit more about the circumstances of her clients … thinking of the “genuine” aspect of it here

[jessica]

You guessed it, she works for private clients and is only ever paid in cash

[Anonymous]

She is an a8 who has been here more than 5 years and since April is EEA so has permanent right of residence.

She is entitled to HB/CTB.

How you assess the self employment is up to you.

[Anonymous]

Whether she has a permanent right of residence under the five year rule depends on whether she had a right of residence during the five year qualifying period. Jessica is undecided whether the claimant’s self-employed activity was effective and genuine.

If it was my case I would want to know more about who these clients were, because if they are not the kind of people who are in a position to be employing domestic staff I would be having doubts about the genuineness of the work.

[jessica]

Thankyou Peter. 🙂

[Kay_Tade]

[quote=Peter Barker]1. Some argue that the concept of “effective and genuine” work does not apply to self-employment. I think it must apply[/quote]

Well, I’m one of those of the opposite view and I’m going to have to disagree with PeterB on that point, but agree with the rest of his views. There is nothing in European or domestic law that applies a “genuine and effective” test to self-employment. You are either self-employed or not, it’s a matter of fact. So in that respect I would not apply that test for R2R, as I would not apply a “effective and genuine” test to a UK citizen.

Saying that, irrespective of what documentation has been issued by UKBA regarding self-employment, in your case you have someone that states she works 18 hrs a week for £1200 per annum. Unless this is a typo, that means she earns £1.28/hr. Taking into account points 2, 3 and 4 that PeterB made and applying the normal rules as you would to anyone else, irrespective of nationality, the only conclusion I would come to is, either the person is genuinely self-employed and has not declared the correct average earnings/hrs worked, based on the facts OR the person is PRETENDING to be self-employed, also based on the facts.

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