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.
To be considered as a 'migrant worker' for the purposes of UK fees assessment and Student Support entitlement, the work must take place in the UK. However, you can be both a 'worker' and a 'student' (Ezgi Payir); your intention for coming to the UK is irrelevant in deciding whether you are a worker and there is no need for a link between ongoing work alongside study. Students who are working whilst also studying are entitled to be regarded as workers, as long as the work meets the conditions below.
Work must fulfill three essential criteria (according to the case of Lawrie–Blum):
- You perform services of some economic value; and
- The work is undertaken for and under the direction of another person; and
- The work is undertaken in return for remuneration.
Student Finance England quotes the European Court of Justice (ECJ) ruling in the case of Brown (Case 197/86):
"The essential characteristic of the 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".
Work can be full-time or part-time, but part-time work must be of some economic value and be 'effective and genuine'.
In order to be considered effective and genuine, the work must be lawful and a decision-maker will have to give consideration to the nature of the work, including:
- the amount of time actually engaged in an employment relationship; and
- whether there is some remuneration (but note that this 'remuneration' does not have to be in the form of money).
Work can be for a low wage, even if this means that workers are supplementing their wages by claiming welfare benefits to which they are entitled.
Work can also be for 'payment in kind', for example, receiving food and accommodation in return for labour. In the case of Steymann v Staatssecretaris van Justitie (Case 196/87), a German national living in a Bhagwan community in the Netherlands did plumbing work and general duties and the Bhagwan community provided him with his material needs and pocket money. It was held that he was a worker.
Work can include agency work and contracts of employment (but it is important that you consider the above points).
Work must not be marginal or ancillary (Levin). Ancillary means that '[if you were not on] the course, you [would not] have undertaken the work at all' (Brown). An example of work that is ancillary is a work placement which is part of your course of study, where you would not be doing that particular work if you were not on your course of study.
The Student Finance England guidance on assessing eligibility advises that:
"in trying to decide whether a person’s employment is… marginal and ancillary it may be relevant to consider… whether, but for being accepted on the course of studies, the work would be undertaken at all. In the case of Brown the Court concluded that where the status of worker derived exclusively as a result of being accepted for admission to a course of study then the worker status is merely ancillary and the applicant would not be eligible for support. However, it is not the intention of the person concerned that is important but objective factors related to the employment" [paragraph 106 of Student Finance England’s Assessing Eligibility Guidance 2015/16].
Other cases have indicated that people who are undergoing work-based training for a qualification may still be classified as 'workers' provided they are performing a service for remuneration. In the case of Lawrie-Blum v Land Baden-Wurttemberg (Case 66/85), the ECJ held that:
"a trainee teacher who, under the direction and supervision of the school authorities, is undergoing a period of service in preparation for the teaching profession during which he provides services by giving lessons and receives remuneration must be regarded as a worker within the meaning of Article 48(1) of the EEC Treaty, irrespective of the legal nature of the employment relationship".
You can gain 'worker' status part way through the academic year. In the case of Levin (Case 53/81), the ECJ held that:
"the motives which may have prompted a worker of a member state to seek employment in another member state are of no account as regards his right to enter and reside in the territory of the latter state provided that he pursues or wishes to pursue an effective and genuine activity".
This means that if a student originally entered the UK in order to study and then takes up work, the original intention does not prevent the student from being regarded as a migrant worker, as long as the work is 'effective and genuine' and there is no evidence that the work was entered into solely so that the student would become eligible for 'home' fees or Student Support. See Work undertaken purely to benefit from 'home' fees and Student Support.
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. Student Finance England offers little guidance on what constitutes a sufficient link but refer to the cases of Lair (Case 39/86) and Bernini (Case C-3/90) and "the relationship between the purpose or subject matter of the studies and the previous employment" [paragraph 102, SFE Assessing Eligibility Guidance 2015/16]. In the cases of Lair and Bernini, the ECJ does not decide if there is a link between the work and subsequent study, but states that this is a matter for national courts to decide.
Article 7 of the EEC Directive 2004/38 states that if you stop work you will retain your status as a 'migrant worker' if any of the following situations apply to you:
- You are temporarily unable to work as the result of an illness or accident. There is no time limit for when 'temporary' ends - what is important is that the situation is not permanent.
- You are in duly recorded involuntary unemployment after having been employed for more than one year and have registered as a job-seeker with the relevant employment office.
- You are in duly recorded involuntary unemployment after:
- completing a fixed-term employment contract of less than a year; or
- having become involuntarily unemployed during the first twelve months of a contract; and
- you have registered as a job-seeker with the relevant employment office.
You will need to provide evidence that you are seeking employment and have a genuine chance of being engaged. In this case, the EU Citizen's Directive says that your status of worker shall be retained for no less than six months. However, the UK's implementing Regulations say that the period is a maximum of six months. In the Court of Appeal case of Secretary of State for Work and Pensions v Elmi  EWCA Civ 1403 (18 October 2011) Lord Justice Moses said the following in relation to registration as a job-seeker:
"The Directive imposes upon Member States an obligation to put in place a lawful system of registration whereby that Member State can undertake monitoring and control in order to assess whether a particular applicant has in truth a genuine link with economic activity in this country. But in this case nothing of the sort took place. Whilst on the one hand the Secretary of State requires registration, on the other there was a total failure to put in place a lawful system of registration. As my Lord made clear, a lawful system requires the obligations of legal certainty to be satisfied. They were not in this case. This claimant for Income Support was left in a total state of ignorance as to how to subject herself to a proper system of monitoring and was permitted to claim Income Support without any warning or explanation that, if she did so, no monitoring or no proper system of monitoring would be put in place and thus the Secretary of State would be deprived of the opportunity to assess the link between her and economic activity in this country".
- You embark on vocational training that is related to your previous employment [there is an exception to the requirement that the training and work are related, where you are involuntarily unemployed (as in the two situations above)]. If you lost your job through misconduct, you would not be considered 'involuntarily unemployed'. See the case of Lair in Relevant case law.
- You are on maternity leave. See the case of Dias in Relevant case law.
It was held in the European Court of Justice case of Collins (Case C-138/02) that a person seeking work is not a 'worker' for the purposes of Title II of Part 1 of Regulation 1612/68. It is Article 7(2) in Title II of this Regulation that provides for grants and loans for students (a worker "shall enjoy the same social and tax advantages as national workers") and so work-seekers who have never worked in the UK are not entitled to 'home' fees and Student Support under the provisions for migrant workers.
You should not seek to become a 'worker' solely in order to benefit from student support. In the case of Lair (Case 39/86), the ECJ decided that there was no minimum period a worker must work before being able to exercise rights as a migrant worker. However, Student Finance England quotes further from the same case:
"where objective factors enable it to be established that a worker is entering a member state solely for the purpose of benefiting in that country, after a very brief period of employment, from the system of student grants, such abuses are not covered by the Community provisions at issue".
In other words, if it can be established objectively (ie on the basis of the facts of a case, not on a 'suspicion') that you have entered work for a short period purely and simply so that you can benefit from ‘migrant worker’ status, then the institution or body administering Student Support may decide that you are not a 'migrant worker'.