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Brexit - self-employed persons, a million different stories

WHAT happens to our many EU national colleagues after Brexit? That was the question posed at the June LFB meeting - roughly two years after the EU referendum, and on the eve of Parliament's EU Withdrawal Bill amendments omnishambles. Our speakers were Claudia Delpero, founder of Europe Street News, and immigration barrister Adrian Berry, chair of the Immigration Law Practitioners' Association.

Cladia Delpredo, Adrian Berry, Federica Tedeschi

Claudia Delpero (centre), Adrian Berry (right), introduced by LFB Training Officer Federica Tedeschi (left).

Claudia is a former European Parliament press officer on constitutional affairs, who then worked as a journalist in Beijing - which gave her experience of the attendant immigration hassles - before moving to London. She described an atmosphere of "disbelief" around her in the weeks immediately after the EU referendum. People were concerned, they were asking: "What is happening now?"

We do facts

Since then, there has been a largely "dehumanised debate" on our relationship with the EU - about trade, for example, but "not so much about the people involved". Those include the 3.2 million EU nationals in the UK and the 1.2 million UK nationals in the EU, plus families, friends, employers, colleagues, which taken together add up to "a large group of people". While there was a lot of reporting on "agreements on paper... when it meets reality there are a million different stories." While commentators talked about "life defined as before Brexit or after Brexit... no life is so linear."

There quickly emerged a big "demand for information" said Claudia, which wasn't initially being fulfilled except by some Facebook groups in which EU nationals here shared information, including information and articles sourced from other EU countries. People felt a need to be "aware of what is happening to them... how it affects their rights... their families". So Europe Street News started, with a mission to focus on people, "what is happening to people in real life"..

In its first year there have been 40,000 unique users of Europe Street News and many of these subscribe to its weekly email newsletter. Claudia is proud of the fact that its readership is roughly "50/50 men and women". It is fully independent and has no political affiliation.

Europe Street News includes information from different countries, in different languages, "quality information,", not "soundbites... cheap quotes". After the website started, Claudia encountered a phenomenon which "tells me about the state of journalism," she received several approaches offering to write opinion pieces. She replied, "we do facts". There seems to be plenty of opinion about Brexit but a lot less by way of actual fact - quality, factual pieces are more difficult and more expensive to produce.

Revenues from Europe Street News? Currently "there aren't any" but since they've established a readership in five figures, "now we can afford to go after advertising".

Self-employed persons

Adrian focused on the post-Brexit fate of those that current EU legislation defines as "self-employed persons" - that would be us freelance journalists. He emphasised that what we have at the moment is a draft withdrawal agreement: it's not a done deal and it's not yet been signed off.

The current EU "acquis" on free movement (an "acquis" is a body of accumulated rights and obligations binding across the EU) remains in force in the UK until 31 December 2020. Then "settled status" kicks in for EU nationals in the UK. Those EU nationals who've been "economically active" for five years are eligible. Those from the EU who've been in the UK for less than five years - arriving here some time after 29 March 2014 - get "temporary status" - they can gain full "settled status" after five years.

EU member states can choose to confer settled status on nationals after Brexit either automatically - as the EU Commission is pushing for - or via the "document model" - the route that the UK's gone for, which requires EU nationals to formally apply for settled status. It's already clear that while UK nationals will get the right to live and work in the EU member state where they currently reside, there will be "no freedom of movement to the other 26 (EU member states) for UK nationals".

For those EU nationals "inbound" - newly arriving in the UK - after 31 December 2020, immigration is unlikely to get as difficult as it already is for "third country" nationals from outside the EU, many of whom need visas.

Under current EU law there is a recognition that "self-employed persons" go through "periods of feast and famine,", notes Adrian. So there is "aggregation" - your five years of economic activity in the UK needn't be five consecutive years. You can build up a total of five years of your career in the UK towards your settled status and you can "cut out inactive periods" when applying.

Start keeping a rough chronology

The most important advice from Adrian for EU nationals is to "start keeping a rough chronology of your movements" in and out of the UK and "keep records of activity" (economic or otherwise) in the UK. Start doing it now. "Don't try to do it later, in two years" when the need for it will be more urgent. Since "you can't get an EU citizen's passport stamped" at the UK border, you'll need to start organising and assembling your bank records, plane tickets, bills, invoices and so on to prove where you were when.

Although paying tax is "not decisive" as a factor in EU law, paying taxes does provide a very good record of economic activity in the UK. So do fill in your UK tax return. Adrian encountered some UK nationals in the EU who haven't paid taxes recently because they "move around so much they don't know who to pay it to" - this is "problematic".

Many freelance journalists based in the UK aren't even earning enough to pay taxes, but as long as you're "registered (with a Unique Tax Reference number) and sending in tax returns" you're doing well. Adrian emphasises that the test of being "economically active" is an EU test, not and HMRC test. EU law is "more elastic" than HMRC.

If you receive tax relief, for example, or live off savings for a while, or are in any way "self-sufficient" - not a burden on the state - you qualify. In-work benefits are all part of being in work as far as the EU is concerned

Precedents in EU law mean there's a recognition of "preparatory work" - lots of stuff that you do that you can't bill a client for, but that contribute towards being self-employed, which fits the "economic activity" criteria.

Having been in the UK as a student counts towards your five years for settled status, although students need to be covered by comprehensive sickness insurance. Adrian notes that you can be covered by the health insurance system "at home" (in your member state of origin) while living in the UK, as many nationals from - for example - Portugal are. Claudia added that in the early days after the EU referendum, some 27 per cent of PR applications from EU nationals were rejected over the "comprehensive sickness insurance" issue - though this demand seems to have been shelved of late.

A case currently before the courts is in Adrian's opinion likely to set a precedent that self-employed women on maternity leave can "maintain the status of worker" for a twelve-month period that counts towards their five years for settled status. This will be retrospective and, yes, it will include women who were resident in the UK.

While settled status should be automatic for those that apply for it after five years in the UK, you can get a Permanent Residency (PR) certificate now. While it's "just evidence", the plan is that if you have one your settled status application will be fast-tracked. Adrian says of the PR certificate: "you'd be advised to get it now." Third country nationals (non-EU) living in the UK but with a close family member from the EU can get a "card" that allows residency in the UK.

After 31 December 2020, the EU Commission ceases to be the "surveillance authority" monitoring the rights of EU nationals in the UK, an "independent" UK body will take over this role. But "will the Home Office take account of the law?" asks Adrian.

And is the Home Office even up to the job? Already, around a half of appeals against its decisions are won at tribunal. Adrian observed that the Home Office already "botch" many of the 20,000 work permits a year currently needed for non-EU third country nationals, so "what will they do for a system of three million" EU nationals? Despite promises that the system for applying for settled status will be simple, it turns out that the trial app for settled status "will only work on Android, not on Apple... if it works at all,". Its launch has been delayed.

Naturalisation - becoming a UK citizen - can be "a good idea", adds Adrian. Cypriot or Maltese nationality is also handy if you can get it, as you become a Commonwealth citizen and "can vote here". Be warned, though, that you would have to "lose some nationalities" to become a UK citizen. Becoming British may also stop you getting your (EU national) family members into the UK under EU law, although Adrian says a recent court case suggests this is less unlikely.

Adrian's seen a trend in people leaving the UK, especially to go (back) to Eastern Europe. But, he says, this is only because Eastern European countries' economies "are picking up... it was always going to happen." The "remittance value" of what Eastern Europeans were sending home from the UK in 2008 was "much higher" than it is now. Governments - especially Poland's - are encouraging their nationals to return from the UK; France is discussing support and incentives for those that return.

  • This article was amended on 18/02/19 to correct a typo and a broken link.