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Eea2 Holder; Maternity Benefit Help Needed!

maternity leave benefit Eea2 French zero hours contract

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#1 mahat

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Posted 19 November 2012 - 12:32 PM

Hi all,

I am in need of some advice urgently and will be very grateful for any.

I am an Eea2 visa holder (Exp: 2015) living in the Uk, with my 3yrs old son. My husband who is French, has been working for the same company for the past 3yrs here in the UK, and has now been transferred to another EU country for 18months in August. I have been working full time from oct 2010 until Feb 2012 when my contract ended.

I then started another job in April of this year with a company that gave me a permanent contract. On the 17th of Oct out of the blue I was told that the contract that I signed was not meant to be permanent but temporal as the role was for a maternity cover. I was told by the manager that I do not have to go into work, that I will be paid a week wage in compensation and that i will be transferred to a zero hours contract. On the 24th of Oct, he called me to cover for someone that had called in sick, which I did, and since then I have not heard from them and when I call, he says there is no work. I received my payslip on the15th, but I have not been paid for the week he said I will get. I have tried calling to speak to him, but he is alway busy and never gets back to me.

Since then, I have found out that I am pregnant (17 weeks now) and does not know what to do. We do not claim or receive any benefits other than the child tax credit, which is the £81 something, that I receive for my 3yrs old son.

What are my Rights in this situation?

I know my stay in the UK is dependent on my husband living and working here, but as he is not around at the moment how does that impact on my maternity benefit, that is if I am entitled to any?

Should I and if so, how do I claim maternity benefit if am not working at the moment?

Apologies for the long rant, just wanted to cover all.

Thank you all in advance

Mahat



#2 Victoria

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Posted 19 November 2012 - 01:23 PM

I am not sure that you have any right to benefits. I'm not sure that you have any right to be in the UK. When is your husband back?

#3 Mutly

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Posted 19 November 2012 - 02:43 PM

Is your husband now working and being paid outside the UK?
How long had you and your husband been living in the UK prior to his departure? (Date of each of your arrival even if the residence card was issued much later, and of his treaty rights if for eg. he was working before he started his current job.)
Does he return to the UK and how often and how long for?
Does he do work in the UK whilst there?
Can this overseas posting be shortened to under twelve months?

These questions are important, unfortunately your and your son's right to be in the UK may be in jeopardy.

#4 mahat

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Posted 20 November 2012 - 07:47 AM

Hi Victoria & mutly,

Thank you both for reading and for the replies.

He is in France for 18months working with the same company that he was working for in the UK. He also does work with his team over here as well, for instance, last month he worked at their office over here for 2weeks. He is being paid and taxed in France though. He visit every other weekend.

He came to the UK in May of 2009 and found a job straight away. I came to join him in Sept, but had to go back in Nov for my son's birth, which took place in France. I then returned with my son in Dec 09 and I started working part time in April 2010 and then full time in Oct 2010.

As for shortening his stay over there to 12 months, he said he could be able to do that.

Thanks

Edited by mahat, 20 November 2012 - 08:06 AM.


#5 Mutly

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Posted 20 November 2012 - 04:03 PM

Generally if your husband as the EEA national ceases to live in the UK, you and your child cease to have a right of residence.

Nothing will happen if the HO doesn't find out and they won't check up randomly of their own accord. However a benefits claim or other official acitivity may cause your situation to be checked and it could come to light that your husband's income is paid and taxed outside the UK, so if possible it's worth making sure the right of residence is maintained before applying.

There are exemptions to the loss of tghe right of residence.

Firstly residence of EEA nationals is not broken by one single overseas posting of not more than twelve months. It needs to be a posting not a transfer or change of employment, and it sounds like it is a posting. It doesn't specifically say so anywhere in the Regulations but if your husband's residence is not broken then the only logical conclusion is that your isn't either, therefore that would be fine.
Your son is in the same position as you, when you have a right of residence, so does he.

Secondly you can have a retained right of residence where the EU spouse has left the UK. This would apply if your husband ceased living in the UK. It doesn't sound like he has, but it could be arranged, so to speak. However this is usually applicable where the couple have split up but not divorced and might be tightly scrutinised if claimed whilst your husband still spends much time in the UK and works there too. Also it would only apply if either you or your son were in education and the HO doesn't normally deem Kindergarten/pre-school to fall within that definition. So whilst worth knowing about, it's not an ideal solution in this case.

Thirdly if your husband can arrange it so that he remains a UK based employee who is paid in the UK with a UK contract that would be fine. But then he could only spend a maximum of six months per year outside the UK and proof of that may be required if regularly doing work outside the UK.

Fourthly you have a right of residence as a parent of an EEA child if you have sufficient resources and private health insurance. But you need to already have the resources, funds for you and your child to live from, and you can't work or reckon your husband's future income because it's not a resource which you personally already have control of. So that only applies to people who are quite well off financially.

So from those options the easiest would be your husband shortening the posting outside the UK to a maximum of 365 days and for the employer to confirm that it's a posting.

As regards benefits, if the right of residence is secure, then having lived in the Uk for three years, the habitual residence test should be met. I say "should be" because as far as I know it is, but I'm no expert on that, others can say more on the habitual residence rules. If you are habitually resident under those rules, then with a right of residence, you as the spouse of an EEA national in employment can claim the same benfits as British citizens, his income will be relevant to means tested benefits.

All relevant documents of your husband's should be kept for the future permanent residence application. Note that is his and through that your right of residence is interrupted, that would be noticed with a permanent residence application, so the reckonable residence would resume from zero, whereas currently you already have three of the five years of residence needed for permanent residence.
Once permanent residence is acquired, you can stay in the UK without condition, it wouldn't matter then how long your husband lives and works outside the UK.

#6 mahat

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Posted 21 November 2012 - 09:05 AM

Hi Mutly,

Thank you very much for the detailed information.

We have look at and discuss all the points that you have highlighted and have decided that its not worth the hassle, so I will not be claiming the Statutory maternity benefit, even though we do have private Health care paid for by my husband's company and a bit of saving that we can live on if needed.

My husband has been told that his work in France will have to be paid and taxed over there, but he was able to reduce it to 10 months now and so he will be back working here from June 2013, inorder to not break the residency rule.

As for the Child tax credit that my son gets, should we called HMRC and stop that for now, as am not working and my husband is not also getting taxed here at the moment?

Thank you very much

Mahat





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