Rumanian SE Appeal

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  • #35505
    chardy_16
    Participant

    Rumanian girl, now 20. Came to UK aged 14, taken into care; now left. Has been “working” as SE cleaner for 3 customers ( one at a time) since apr 2007: however never for 12 months continuously and i believe 2 of them not to exist( through council tax; electoral reg but i cannot prove this). She “worked” 3 months, then 3 month break;2 months, then 1 month break; 3 months, then 1 month break; 6 month, then not working last 10 months
    Her tax returns for 2007/2008 show av weekly earnings of £25.83 and 2008/2009 for £12.42.
    I do not believe this to be “effective and genuine” work as way below applicable amount
    She is full time student; has not provided any invoices to show any work for 10 months. Had baby in April.
    She has a good solicitor.

    I dont think she qualifies for HB as she is not self sufficient or working..and think the temporary break she is claiming is too long.
    JSA has been refused as they say she isnt work seeker.
    Solicitor is quoting Barry v Southwark but I do not think this applies here.
    Any advice gratefully received. Think it’s going to have to go to Tribunal.

    #99506
    Anonymous
    Guest

    Barry is a case where a Dutch national worked for two weeks during the Wimbledon tennis championship then went back to signing on. The Court of Appeal generously concluded that he had established himself as a worker during those two weeks, and therefore retained his status when signing on after the job ended. There are cases you could cite that take a different view of short-term work – try CIS/1793/2007, for example.

    But there are several more fundamental reasons why Barry does not apply:

    – your claimant purports to be self-employed, not a worker
    – self-employed people do not retain their status while signing on
    – A2 nationals who sign on before they have worked for 12 months do not even retain worker status
    – she isn’t signing on in any case
    – Barry seems to have worked a lot of hours during the brief period when he was employed; your claimant hardly seems to work any hours at all

    There might be some mileage in the argument that she is on a temporary break from self-employment – see CIS/1042/2008. How long is too long? If self-employed people are in an analogous position to employees who go on maternity leave while still under contract I would guess that you can still be self-employed for a period equal to the maximum statutory maternity leave period.

    But all of that goes out of the window if the claimant has never been meaningfully self-employed in the first place. The “effective and genuine” test arises from case law on workers, but in the absence of anything better I suggest that similar considerations be applied to the self-employed. If you do not feel that this claimant is or ever has been effectively and genuinely self-employed, there is no way she could retain that status now.

    Just one thing to check out: did she have leave to enter/remain before January 2007? If so, what kind and for how long? It might still be valid.

    #99507
    chardy_16
    Participant

    Thank you for your help.
    Customer came over with father in 2004 as 14 year old.
    Passport ( Romananian we are told) is not available…

    I have replied to solicitor and see what they say. I do think it will go to Tribunal.

    #99508
    bulledl
    Participant

    Hi Caroline,
    You might want to look at my earlier posting “Polish worker claiming to be self employed”. There is a link to a newspaper article which seems to have a lot of parallels with your case. One would ask the question “how does a single parent student afford a good solicitor?”

    Please keep us posted as to how you fair at Tribunal as we have a few similar cases that we were unsure of how to proceed (but thanks to Peter’s answer to you on this topic, i think we now have a fair idea!)

    #99509
    chardy_16
    Participant

    Ok I will let you know how the Tribunal goes.

    Glad I am not the only one with these sort of claims!

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