We have previously highlighted on this blog that EEA nationals who have exercised treaty rights in the UK for a continuous period of 5 years can apply to the Home Office for a document certifying permanent residence. See here and here.
Many (if not most) EEA nationals applying for a document certifying permanent residence will do so on the basis that they have been working in the UK. A lot of concern has been expressed over short gaps in employment as it is unclear from the application form and EEA(PR) guidance notes whether these will cause a problem.
Whether gaps in employment will be problematic depends on the particular circumstances of your case. However, the term “worker” is given a very broad definition in EU law and duration is not the only factor to be considered.
The Court of Justice of the European Union has made the following comments on the definition of “worker” in EU law:
“...it is settled case-law that the concept of worker has a specific Community meaning and must not be interpreted narrowly. It must be defined in accordance with objective criteria which distinguish an employment relationship by reference to the rights and duties of the persons concerned. In order to be treated as a worker, a person must pursue an activity which is genuine and effective, to the exclusion of activities on such a small scale as to be regarded as purely marginal and ancillary. The essential feature of an employment relationship is that for a certain period of time a person performs services for and under the direction of another person in return for which he receives remuneration. By contrast, neither the sui generis nature of the employment relationship under national law, nor the level of productivity of the person concerned, the origin of the funds from which the remuneration is paid or the limited amount of the remuneration can have any consequence in regard to whether or not the person is a worker for the purposes of Community law.” (Bulent Kurz (nee Yuce) v Land Baden-Wuttemberg, 19 November 2002 (C-188/00) at paragraph 32)
This case re-iterates the “genuine and effective” test first articulated in the case of Levin v Staatssecretaris Van Justitie 23 March 1982 (Case 53/81). Whether work is genuine and effective will depend on the applicant's earnings, whether they were able to live from their earnings without further financial support, the type of work (i.e. temporary, fixed term, seasonal), the length of the gap in employment, the reason for the gap in employment, and what the applicant spent their time doing during gaps in employment.
Work can be part-time, short-term, casual or seasonal and still allow a person to meet the definition (see the Court of Appeal case Mohamed Barry v The London Borough of Southwark  EWCA Civ 1440 at para 28) and it has been held that two students who worked as part time waiters in restaurants for less than 20 hours a week during their studies, and an au pair who worked between 15 and 25 hours a week, could meet the definition of worker (see R (on the application of Ezgi Payir, Burhan Akyuz, and Birol Ozturk) v Secretary of State for the Home Department, 24 January 2008 (C-294/06)).
This broad definition does not only assist those with short gaps in their employment history, it can also help those with slightly unusual employment relationships. Just as duration is not decisive, no other single factor, such as whether earnings are taxable in the UK or the source of remuneration, is decisive. This allows EEA nationals employed in the UK by a foreign embassy or international organisation, who are often exempt from paying tax in the UK, to argue that they can still be treated as workers. Similarly there is a good argument, based on the definition above, that a post doctoral researcher who is in receipt of tax free third party funding rather than a salary can also meet the definition of “worker”.
Each case will ultimately turn on the applicant’s particular circumstances; however knowing that the law prohibits an unnecessarily restrictive approach to the definition of “worker” may provide comfort to anyone with short gaps in their employment history or slightly unusual circumstances.
Unfortunately this does not necessarily mean that the Home Office will not, in practice, adopt a restrictive approach and it is often necessary to lodge an appeal to the First-tier Tribunal against a decision to refuse an application on the basis that the Home Office have failed to comply with the above principles. If your case is particularly complex it is worthwhile seeking assistance with your application from an expert in this field, as providing a detailed letter of legal representation with your application can reduce the chances of an unlawful refusal from the Home Office.