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Brexit and freelances

HOW WILL Brexit affect our members who are EU nationals and who are also what EU law defines as "self-employed persons"? Adrian Berry, barrister and chair of the Immigration Law Practitioners' Association, updated us at the June LFB meeting. We also heard from Claudia Delpero of Europe Street News.

Federica Tedeschi, Cladia Delpredo & Adrian Berry; photo © Hazel Dunlop

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

The current body of EU law remains in force in the UK until 31 December 2020: then "settled status" kicks in for EU nationals in the UK. Those who've been "economically active" for five years are eligible to apply. While UK nationals will get the right to live and work in an EU member state where they currently reside, there is "no freedom of movement to the other 26".

Current EU law recognises that "self-employed persons" go through "periods of feast and famine," notes Adrian. So you can "aggregate" - your five years of economic activity in the UK needn't be consecutive and you can "cut out inactive periods" when applying.

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. Since you can't get an EU passport stamped at the UK border, you'll need to start organising and assembling your bank records, plane tickets, bills, invoices and so on.

Paying taxes offers a very good record of economic activity in the UK, so do fill in your UK tax return. Many freelance journalists based in the UK aren't 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. The test of being "economically active" is an EU test, not an HMRC test.

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. Precedents in EU law recognise "preparatory work" that you do that you can't bill a client for but that contribute towards fitting self-employed "economic activity" criteria.

Being "self-sufficient" does require having health insurance - but for many the cover offered in another country counts for this. An "EHIC" card issued in that country helps.

A case currently before the courts is, in Adrian's opinion, likely to set a precedent that self-employed women on maternity leave "maintain the status of worker" for a twelve- month period that counts towards their five years.

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 so, Adrian says, "you'd be advised to get it now." Non-EU nationals living in the UK with a close family member from the EU can get a "card" that allows residency in the UK.

Adrian observed that the Home Office already "botches" many of the 20,000 work permits a year currently needed for non-EU country nationals, and around half of appeals are won at tribunal. So "what will they do for a system of three million" EU nationals?