EEA/Swiss migrant workers

Last modified: 10 September 2018

The fees and Student Support regulations across the four countries of the UK make provision for eligibility for EEA and Swiss nationals who are working in the UK, as well as for certain 'relevant family members' of such people.

In this page we outline what activities can be considered as work and, therefore, when someone is considered a ‘worker’. We also highlight relevant case law, from the UK and EU, relating to workers and work.

Applying as a 'worker'

Last modified: 10 September 2018

If you wish your educational institution to consider you as a migrant worker when assessing your fee status, or if you wish your funding body to consider you as worker when assessing your application for Student Support, it is important to state this clearly in your fee status assessment form / financial support application. It is normally helpful to include a chronology of the work you have done since you came to the UK. It may also be helpful to include documents, if you have any, as evidence of work are doing and have done, including:

  • P45s / P60s / payslips
  • Contracts of employment
  • Certificates of authorisation/registration [if you were a national who was required to have worker authorisation, eg Croation nationals - see Working]

However, before you do this you should check what the team assessing your application will wish to see.

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:

Who is a 'worker'?

Last modified: 25 April 2018

European Community legislation and case law have established that EU nationals working in another member state, and their families, should have the same access to vocational training and education as nationals of the member state providing that education. The EEA Association Agreement with Turkey, and the Swiss Agreement, extend these rights to non-EU EEA nationals, and Swiss nationals, who are working in the UK.

In the fees regulations and Student Support regulations, various types of ‘migrant worker’ are defined. However, entitlement to ‘home’ fees, and Student Support, is similar.

An ‘EEA migrant worker’ / ‘EEA self-employed person’ is defined as someone who is a:

  • non-UK EEA national; and
  • worker / self-employed person (other than a frontier worker / frontier self-employed person) in the UK.

An ‘EEA frontier worker’ / ‘EEA frontier self-employed person’ is defined as someone who:

  • is a non-UK EEA national; and
  • is a worker / self-employed person in:
    • the UK (for fees purposes) or
    • England, Northern Ireland, Scotland or Wales, as appropriate (for Student Support purposes); and
  • resides in Switzerland, or the territory of an EEA state other than the UK, and returns to their residence in Switzerland, or that EEA state, daily or at least once a week.

A ‘Swiss employed/self-employed person’ is defined as someone who is:

  • a Swiss national; and
  • an employed/self-employed person (other than a frontier employed/self-employed person) in the UK.

A ‘Swiss frontier employed/self-employed person’ is defined as someone who:

  • is a Swiss national; and
  • is employed/self-employed in:
    • the UK (for fees purposes) or
    • England, Northern Ireland, Scotland or Wales, as appropriate (for Student Support purposes); and
  • resides in Switzerland, or the territory of an EEA state other than the UK, and returns to their residence in Switzerland, or that EEA state, daily or at least once a week.

In our categories, we generally refer to all of the above collectively as ‘EEA/Swiss [migrant] workers’. In other words, an EEA/Swiss [migrant] worker includes an EEA / a Swiss national who is:

  • employed; or
  • self-employed; or
  • a frontier worker who is employed or self-employed.

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

What counts as 'work' or 'working'?

Last modified: 25 April 2018

As we have seen, a 'migrant worker' must be an EEA national or a Swiss national. The definition of 'work' is broad. As cases arise and are taken to the European Court of Justice (ECJ), the definition of 'worker' for the purposes of the European treaties is further developed, and this can affect the eligibility of workers to 'home' fees, and entitlement of workers to Student Support. Look at the facts of your own case and the work you have been doing.

Working whilst studying

Key facts about work

Work that is 'ancillary' to study

Becoming a 'worker'

Stopping work to start a course

People who remain 'workers' when no longer working

Those who have not found work in the UK

Work undertaken purely to benefit from 'home' fees and Student Support

List of relevant case law

Last modified: 25 April 2018

NAME OF CASE AND REFERENCE (Natural Number)

 

RELEVANT POINTS FROM THE CASE

Deborah Lawrie-Blum
vs
Land Baden-Württemberg
Case 66/85

For those who are employed there are three essential elements of the work relationship. The work must be work:

  • of some economic value
  • undertaken for and under the direction of another
  • undertaken in return for remuneration

D.M. Levin
vs
Staatssecretaris van Justitie
Case 53/81

Work must be genuine and effective to the exclusion of activity which is purely marginal and ancillary.

Work can be part-time and low paid.

Steven Malcolm Brown
vs
The Secretary of State for Scotland
Case 197/86

Definition of 'ancillary': Had it not been for acceptance on a course of study, the work would not have been undertaken. An example of ancillary work is a work placement that is part of your course.

Brian Francis Collins
vs
Secretary of State for Work and Pensions
Case C-138/02

A 'work seeker' is not a 'worker' who is entitled to social and tax advantages. Student Support is considered a social and tax advantage.

Secretary of State for Work and Pensions
vs
Maria Dias
[2009] EWCA Civ 807

Someone who is on maternity leave retains 'worker' status.

Someone who has stopped work for childcare reasons is voluntarily unemployed and doesn’t retain 'worker' status.

M. L. Ruzius-Wilbrink
vs
Bestuur van de Bedrijfsvereniging voor Overheidsdiensten
Case C-102/88

Someone who worked 18 hours a week was considered to be a 'worker'

Ingrid Rinner-Kuhn
vs
FWW Spezial-Gebaudereinigung GmbH & Co. KG
Case 171/88

Someone who worked 10 hours a week was considered to be a 'worker'

R.H. Kempf
vs
Staatssecretaris van Justitie
Case 139/85

Teacher who gave 12 lessons a week and had a low income was considered to be a 'worker'

V. J. M. Raulin
vs
Minister van Onderwijs en Wetenschappen
Case C-357/89

Those undertaking contracts can be 'workers'

but 

"[the] national court may [...] when assessing the effective and genuine nature of the activity in question, take account of the irregular nature and limited duration of the services actually performed under a contract for occasional employment. The fact that the person concerned worked only a very limited number of hours in a labour relationship may be an indication that the activities exercised are purely marginal and ancillary. The national court may also take account, if appropriate, of the fact that the person must remain available to work if called upon to do so by the employer".

Franca Ninni-Orasche
vs
Bundesminister fur Wissenschaft, Verkher und Kunst
Case C-413/01

The end of fixed term contract does not necessarily mean that migrant is voluntarily unemployed

Sylvie Lair
vs
Universitat Hannover
Case 39/86

If there is a sufficient link between work and studies taken thereafter migrant retains 'worker' status.

You should not seek to become a 'worker' solely in order to benefit from student support.

Ezgi Payer and Others
vs
Secretary of State for the Home Department
Case C-294/06

A migrant can be 'worker' and 'student' at the same time

Udo Steymann
vs
Staatssecretaris van Justitie
Case 196/87

Payment in kind (not necessarily money) can count as remuneration


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