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Advice for International Students:

Advice for UK students:

EEA 'migrant worker'/Swiss ‘worker’

Am I an EEA migrant worker/Swiss ‘worker’?

Yes, if you are a non-UK EEA national or a Swiss national in the UK who is, or was (in certain circumstances) working, where the work meets certain criteria. This includes those who are, or were (in certain circumstances):

  • employed (the work must fulfill essential criteria – see below)
  • self-employed
  • a ‘frontier worker’ who is employed (as above) or self-employed

A 'frontier worker' is an EEA/Swiss national working in the UK but who "resides in Switzerland or the territory of an EEA State other than the United Kingdom and returns to their residence in Switzerland or an EEA state, at least once a week".

The Student Support Regulations refer to ‘worker' with reference to the Community definition (Article 7 of the EEC Directive 2004/38). If you are a Bulgarian or Romanian national working in the UK and have completed a BR1 form, you might not be considered to be a 'worker' by the decision-maker under the Student Support regulations. We are seeking advice as to whether you should be considered a 'migrant worker'.

What kind of work must I be doing?

  • The work must be in the UK
  • The work can be full-time or part-time (see case law on EEA migrant worker/Swiss ‘worker’ )
  • If you have become ‘involuntarily unemployed’, you do not have to show that your course of study is related to your previous job – for example, if your post was made redundant, or, in certain circumstances, if your contract ended and was not renewed (see below for more information on this).
  • It can be work that you are doing while you are on the course, unless it is ‘ancillary’ to the course. ‘Ancillary’ means the work is part of the course or work you were offered because you have been accepted on a particular course (see case law on EEA migrant worker/Swiss ‘worker’)

Am I entitled to Student Support?

To check whether you are eligible for student support, look at the following

For those applying in England
For those applying in Wales
For those applying in Scotland
For those applying in Northern Ireland


How do I apply for Student Support?

SeeEU students: what type of finance could you qualify for?


What should I include in my application for Student Support?

It is important to state that you are applying as a migrant worker, and include with your application to Student Finance England / Student Finance Wales/ Student Awards Agency for Scotland/ your local Education and Library Board (for Northern Ireland), a chronology of the work you have done since you came to the UK. It is also important that you include any documents as evidence of the work you have done. This may include:

  • P45
  • P60
  • Contracts of employment
  • Certificates of authorisation/registration

I have been refused student support, what should I do now?

  • If you have been refused student support and you and the work you are currently doing or were recently doing meets the criteria above, you are advised to write to the relevant decision-making body and ask for the reasons you have been refused, if they have not yet been given.
  • Once you are given reasons, consider whether the points raised in the refusal letter are arguable (see below). It is useful to respond by addressing each point raised in the letter, and highlighting any relevant case law that supports your case.

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How do I challenge the decision to refuse?

Look at the facts of your own case and the work you have been doing.

  • Check that you meet the criteria for student support
  • Check that you have either registered or authorised your work, if necessary:
    For nationals of Bulgaria and Romania (also known as 'A2 nationals')

    • For nationals of the Czech Republic, Estonia, Hungary, Latvia, Lithuania, Poland and Slovakia (also known as 'A8 nationals'). From 1 May 2011, 'A8 nationals' will no longer be required to register their work.

  • If you are no longer working, check whether you have retained ‘worker’ status. A worker who has given up work retains ‘worker’ status in any of the following situations:
    • Article 7 (paragraph 3) of the EU Directive 2004/38 states: "…a Union citizen who is no longer a worker or self-employed person shall retain the status of worker or self-employed person in the following circumstances:
      1. he/she is temporarily unable to work as the result of an illness or accident
      2. he or she is in duly recorded involuntary unemployment after having been employed for more than one year and has registered as a job-seeker with the relevant employment office
      3. he or she is in duly recorded involuntary unemployment after completing a fixed-term employment contract of less than a year or after having become involuntarily unemployed during the first twelve months and has registered as a job-seeker with the relevant employment office. In this case, the status of worker shall be retained for no less than six months
      4. he or she embarks on vocational training. Unless he/she is involuntarily unemployed [as in (b) or (c) above], the retention of the status of worker shall require the training to be related to the previous employment. If you lost your job through misconduct, you would not be considered ‘involuntarily unemployed’"
    • maternity leave (See Dias in list of case law on EEA migrant worker/Swiss ‘worker’ )
    • If you give up work to start a course, you should still be treated as a migrant worker if your course of study is related to your job or area of work (See Lair in list of case law on EEA migrant worker/Swiss ‘worker’)
  • If you are ‘employed’ (not ‘self employed’ or a ‘frontier worker’), the work must fulfill three essential criteria (Lawrie–Blum) These are that:
    • you perform services of some economic value
    • the work is undertaken for and under the direction of another person
    • the work is undertaken in return for remuneration
  • For the work to be of some economic value, the work has to be ‘effective and genuine’ to the exclusion of work that is marginal and ancillary (Levin):
    • Ancillary means that ‘but for the course, you wouldn’t have undertaken the work at all’ (Brown). An example of work that is ancillary is work undertaken as a placement which is part of your course of study
    • In order to consider whether your work is ‘effective and genuine’, look at the nature of the work, including:
      • The amount of time actually engaged in an employment relationship
      • Whether there is some remuneration (this does not have to be money, but if it is money there is no minimum amount of money it has to be)
  • Work can include agency work and contracts of employment (but it is important that you consider the above points)
Other points to consider:
  • You can be both a ‘worker’ and ‘student’ (Ezgi Payir). Your intention for coming to the UK is irrelevant in deciding whether you are a worker. Please see above, however, if you are a Bulgarian or Romanian national
  • You can gain ‘worker’ status part way through the academic year
  • You should not seek to become a ‘worker’ solely in order to benefit from student support (Lair)

I do not think that I am an EEA migrant worker/Swiss ‘worker’

If you do not meet the criteria, consider whether there are alternative categories you may fall into. Please note that not all the categories lead to eligibility for full student support.
Student Support: applying in England
Student Support: applying in Wales
Student Support: applying in Scotland
Student Support: applying in Northern Ireland

   

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Relevant Information Sheets:

document icon View a complete list of our Information Sheets EEA Work checker