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Workers

This content applies to England

Definition of the term 'worker' and the circumstances when worker status is retained if the person ceases to work.

Definition and right to reside of a 'worker'

A worker has the right to reside in the UK and is eligible for assistance under Part 7 of the Housing Act 1996.[1]

The Treaty on the Functioning of the European Union (TFEU) establishes the freedom of movement for workers within the European Union (EU) and prohibits any discrimination based on nationality between workers of Member States with regard to employment, remuneration and other conditions of work and employment. For EU citizens, the Treaty expressly provides the following rights:[2]

  • free movement between Member States for the purpose of accepting an offer of employment actually made
  • to stay in a Member State for those who are actually in work, and
  • to remain when a period of actual work ends either on retirement or through accident or ill health.

The term 'worker' is not defined in Directive 2004/38/EC (the Citizenship Directive), but the UK Regulations implementing the Citizenship Directive define the term as 'a worker within the meaning of Article 45' of TFEU.[3]

Case law

The definition of 'worker' is broad and can include persons who are not in work (see 'Retaining worker status' below). The following principles have been established in UK and EU case law:

  • the term 'worker' includes a person who has moved to and stays in another Member State for the purpose of taking up an offer of employment actually made[4]
  • the EEA national must actually have been employed in the UK[5]
  • the person must perform services of some economic value and the performance of such services must be for and under the direction of another person[6]
  • the work must be a genuine economic activity as opposed to a purely voluntary or leisure pursuit; the provision of services can be an acceptable form of payment, eg food and lodging in return for work[7]
  • caring for a person whose entitlement to a qualifying state benefit means that the carer receives carer's allowance is not an economic activity, nor can the receipt of carer's allowance in this situation be regarded as 'remuneration' as there is no correlation between payment of the allowance and the level of caring services provided[8]
  • employment that is 'cash-in-hand', ie without deductions for tax and national insurance, can give an EEA national 'worker' status[9]
  • provided the work is genuine and effective, the motives of the person employed are irrelevant - a person can be classified as a worker even if her/his subjective intention was to create a situation where s/he is classified as a worker for another purpose, for example homelessness assistance.[10]

Is the work genuine and effective?

Case law has established that a worker is someone whose work is 'genuine and effective', as opposed to 'marginal and ancillary'.

If a person depends on means-tested benefits this does not prevent her/his work from being genuine and effective.[11]

A worker may be someone whose work is part time, or whose pay is below subsistence level,[12] and work for a short period of time or for only a few hours a week can create worker status;[13] this should include people on 'zero-hour' or 'on-call' contracts.

It is for the Member State to determine whether the work is on such a small scale or on such an irregular or occasional basis that it may be treated as marginal or ancillary, but any such decision must be informed by the principles set out in European Court of Justice (CJEU) case law.[14]

Please, note that the DWP guidance on the 'minimum earnings threshold' (MET)[15] does not form part of the homelessness statutory framework and if a homeless EEA national is found ineligible for Part 7 assistance based on the fact that her/his income does not meet the MET test, the decision could be challenged. For more information about the MET, please see Eligibility for universal credit.

Retaining worker status

An EEA national will retain her/his worker status (and will continue to be eligible for homelessness assistance, social housing and welfare benefits), if s/he:

  • is temporarily unable to work as a result of illness/accident
  • gives up work due to physical constraints of pregnancy and childbirth
  • is in 'involuntary unemployment'
  • has embarked on vocational training

Each of the provisions attracts additional conditions that have to be met in order for the EEA worker to retain his/her status (see below for a detailed overview).

Temporarily unable to work as a result of illness or accident

A worker will retain her/his worker status if s/he becomes temporarily unable to work because of an illness or accident.[16]

It has been held that 'temporarily unable to work' means that the inability to work must not be permanent.[17] Permanent incapacity can mean unlikely to be able to work in the foreseeable future.[18] In one case, the Upper Tribunal stressed that it is the inability to work that must be considered, not whether the illness is temporary or permanent.[19]

Whether a person is unable to work because of illness or accident is a factual question. The Upper Tribunal has held that a worker's failure to claim employment support allowance (ESA) immediately after leaving his work did not of itself support a conclusion that he had left his employment voluntarily and had therefore lost his worker status. There is no requirement for a person to claim some form of incapacity benefit in order to show that s/he is temporarily unable to work because of illness or accident.[20] However, such a claim may provide evidence of inability to work.

A woman unable to work temporarily due to illness during pregnancy will retain worker status.

Stops working due to pregnancy

A woman who ceases employment as a result of the physical constraints of pregnancy and the aftermath of childbirth retains her worker status provided she resumes working within a 'reasonable period' of giving birth. This is known as the 'St Prix' judgment. What constitutes a reasonable period depends on the facts of each case, but it must take account of national laws on maternity leave and other health and safety provisions.[21]

The Upper Tribunal has held that in most cases the UK's statutory 52-week period of maternity leave is the yardstick for considering whether an EEA national in this situation returned to work within a 'reasonable period'. The Tribunal also confirmed that a return to jobseeking is sufficient to protect a woman relying on retaining her worker status as a result of pregnancy.[22]

Guidance issued by the Department for Work and Pensions (DWP) confirms that worker status can usually be retained for 52 weeks - generally 11 weeks before and 41 weeks after giving birth.[23] The question of how long the right to reside as a worker will be retained must be assessed 'prospectively' - ie, if a woman states that she intends to return to work within 41 weeks of childbirth, she can be treated as retaining worker status for that period. If she changes her mind within the period, her 'St Prix' worker status will be lost but the DWP will not seek to recover benefits paid on the basis of her original stated intention.

A woman who is on maternity leave, whether paid or unpaid, from her employment remains a worker throughout and does not need to rely on the provisions governing the retaining of worker status.

The scope of the 'St Prix' provision is limited to pregnancy and childbirth. In one case, it was held that an EEA national who gave up work to look after his children (one of whom was severely disabled) to prevent them from being taken into social services’ care did not retain the status of a worker, because, despite there being a good reason for giving up employment, his circumstances were not recognised in EU law.[24]

Involuntarily unemployed and registered as a jobseeker

A person will retain her/his worker status if, after having been employed in the UK, s/he is duly registered as a jobseeker and has a genuine chance of finding a job.

For how long such a worker can retain her/his worker status will depend on how long s/he has worked before becoming unemployed:[25]

  • if s/he has worked in the UK for a year or more before becoming unemployed, s/he will retain her worker status for a period of six months or for such a longer period as s/he can show 'compelling evidence' of continued work-seeking and of her/his genuine chance of finding a job.[26] This is known as the Genuine Prospect of Work (GPOW) Test. The Upper Tribunal has held that 'compelling evidence' means no more than evidence that, on the balance of probabilities, the claimant is continuing to look for work and has a genuine chance of securing employment.[27] See Persons ineligible for assistance for more information on the meaning of 'compelling evidence'. The DWP has issued guidance which states that the test is definitely satisfied where:[28]
    • the claimant has a definite offer of a specific job that constitutes genuine and effective work, or
    • a change of circumstances, such as relocating or completing training, means that the claimant will secure a job in the immediate future.
  • if s/he has worked in the UK for less than a year before becoming unemployed, s/he will retain her worker status for a maximum of six months. There is no minimum qualifying employment period.[29]

The time limits above apply equally to EEA workers and self-employed persons.[30]

Vocational training

A person will retain her/his worker status if s/he is either:

  • involuntarily unemployed and has embarked on vocational training,[31]
  • undertaking vocational training which is related to her/his previous employment following a decision to give up work.[32]

Accession State nationals formerly subject to restrictions

A national of an A8 or A2 country or the Republic of Croatia who was subject to worker registration/authorisation can usually only retain worker status if s/he became unable to work or unemployed on or after the date that the requirement to comply with the relevant requirements ended. See the pages A8 nationalsA2 nationals and Croatian nationals for details.

Jobseekers

EEA/EU nationals have a right under Art 45 (formerly Art 39) TFEU and Title 1 to EC Regulation 1612/68, as interpreted by the European Court of Justice,[33] to move freely within Member States to seek employment. However, the European Court of Justice has decided that a jobseeker who has never actually worked in the host state does not have the right to the same tax and social advantages provided to EEA nationals who are working, and the Homelessness Regulations 2006 exclude them from eligibility for homelessness or housing assistance. See the page Persons ineligible for assistance for more information on the right to reside as a jobseeker.

Children of a worker

Where the child of a worker has started full-time education, the child and her/his primary carer will retain a right of residence even after the worker has ceased to work.[34] For more information see the page on Family of workers and self-employed.

British citizens and British/EEA dual nationals

The UK Regulations that set out the right to reside of EEA nationals in the UK specifically exclude British-only citizens (but not dual British/EEA citizens treated as EEA nationals) from the definition of EEA nationals.[35]

A dual British/EEA citizen is treated as an EEA national if:

  • s/he is a national of an EEA Member State, and
  • s/he is also a British citizen, and
  • prior to acquiring British citizenship, s/he exercised a permanent or extended right to reside in the UK.

Note that for the above to apply, the EEA's original Member State must have joint the EU prior to her/his acquisition of British nationality.

British-only citizens (but not dual British/EEA citizens treated as EEA nationals) are excluded from the categories of EEA nationals who are to be automatically treated as eligible for assistance under the homelessness legislation.[36]

For information on where a British citizen is the dependent child of a non-EEA national, see the section on the 'Zambrano' derivative right to reside on Persons ineligible for assistance. For information on the eligibility of the family members of British nationals who have worked in another EEA Member State, see the page Family of workers and self-employed.

Wales

The legislative references and the footnotes on this page reflect the law in England. In Wales, very similar rules made under Welsh legislation apply, but the references may be different. Contact Shelter Cymru for more information about the law in Wales.

[1] Allocation of Housing and Homelessness (Eligibility) (England) Regulations 2006 SI 2006/1294, as amended by Allocation of Housing and Homelessness (Eligibility) (England) (Amendment) Regulations 2006 SI 2006/2007; Allocation of Housing and Homelessness (Eligibility) (England) (Amendment) (No.2) Regulations 2006 SI 2006/334.

[2] Art 45 (formerly Art 39) Treaty on the Functioning of the European Union.

[3] reg 4(1)(a) Immigration (European Economic Area) Regulations 2016 SI 2016/1052; prior to 1 February 2017, reg 4(1)(a) Immigration (European Economic Area) Regulations 2006 SI 2006/1003.

[4] Secretary of State for Work and Pensions v RR [2013] UKUT 021 (AAC).

[5] Collins v Secretary of State for Work and Pensions Case 138/02 [2005] ICR 37.

[6] Lawrie-Blum v Land Baden-Wuerttemberg Case 66/85 [1986] ECR 2121.

[7] Steymann v Staatssecretaris van Justitie Case 196/87 [1988] ECR 6159.

[8] JR v Leeds CC and another (HB) [2014] UKUT 0154 (AAC).

[9] JA v Secretary of State for Work and Pensions (ESA) [2012] UKUT 122 (AAC).

[10] Levin v Staatssecretaris van Justitie Case 53/81 [1982] ECHR 1035; Ninni-Orasche v Bundesminister für Wissenschaft Verkehr und Kunst Case 413/01 [2003] ECR I-0000;  Home Secretary v Akrich Case 109/01 [2003] ECR I-9607; see also Annex A, HB Circular A3/2014.

[11] Levin v Staatssecretaris van Justitie Case 53/81 [1982] ECR 1035; Kempf v Staatssecretaris van Justitie Case 139/85 [1986] ECR 1741; Barry v Southwark LBC [2008] EWCA Civ 1440; SS v Slough BC [2011] UKUT 128 (AAC); see also Annex A, HB Circular A3/2014.

[12] Levin v Staatssecretaris van Justitie Case 53/81 [1982] ECR 1035; Kempf v Staatssecretaris van Justitie Case 139/85 [1986] ECR 1741; see also Annex A, HB Circular A3/2014.

[13] Tarola v Minister for Social Protection [2019] CJEU C-483/17; Ninni-Orasche v Bundesminister für Wissenschaft Verkehr und Kunst Case 413/01 [2003] ECR I-0000; see also Annex A, HB Circular A3/2014.

[14] RF v London Borough of Lambeth (HB) [2019] UKUT 52 (AAC); Raulin v Minister van Onderwijs en Wetenschappen Case 375/89 [1992] ECR 1-1027.

[15] Memo DMG 1/14; HB Circular A3/2014; Child Benefit and Child Tax Credit lawful residence test: workers and self-employed people.

[16] reg 6(2)(a) Immigration (European Economic Area) Regulations 2016 SI 2016/1052.

[17] SSHD v FB [2010] UKUT 447 (IAC); De Brito and another v Secretary of State for the Home Department [2012] EWCA Civ 709.

[18] Konodyba v Kensington and Chelsea RLBC [2012] EWCA Civ 982; see also Samin v Westminster CC [2012] EWCA Civ 1468.

[19] LM v HMRC (CHB) [2016] UKUT 0389 (AAC).

[20] HK v Secretary of State for Work and Pensions [2017] UKUT 421 (AAC); see also KK v Secretary of State for Work and Pensions [2015] UKUT 417 (AAC).

[21] St Prix v Secretary of State for Work and Pensions Case C-507/12 (CJEU 19 June 2014). After the CJEU decision, the UK Supreme Court, which had referred the case to the CJEU for a preliminary ruling, issued an Order to allow Ms St Prix's appeal.

[22] SSWP v SFF : ADR v SSWP : CS v Barnet LBC & SSWP [2015] UKUT 0502 (AAC).

[23] Pt.3 Ch 7 Vol 2 Decision Makers Guide, DWP.

[24] JS v Secretary of State for Work and Pensions (IS) [2019] UKUT 135 (AAC).

[25] reg 14 Immigration (European Economic Area) Regulations 2016 SI 2016/1052.

[26] R v Immigration Appeal Tribunal, ex parte  Antonissen (Free movement of persons) [1991] EUECJ C-292/89; reg 6(2)(b) Immigration (European Economic Area) Regulations 2016 SI 2016/1052; see also Secretary of State for Work and Pensions v MB (JSA) [2017] UKUT 372 (AAC); OS v Secretary of State for Work and Pensions (JSA) [2017] UKUT (AAC).

[27] KS v Secretary of State [2016] UKUT 0269 (AAC).

[28] DMG Memo 15/14 (Habitual residence and right to reside - JSA); see also DMG Memo 2/15 (Extending GPOW assessments to stock EEA nationals).

[29] reg 6(2)(c) Immigration (European Economic Area) Regulations 2016 SI 2016/1052; Tarola v Minister for Social Protection [2019] CJEU C-483/17.

[30] SB v SSWP (UC) [2019] UKUT 219 (AAC).

[31] reg 6(2)(d) Immigration (European Economic Area) Regulations 2016 SI 2016/1052.

[32] reg 6(2)(e) Immigration (European Economic Area) Regulations 2016 SI 2016/1052.

[33] Levin v Staatssecretaris van Justitie Case 53/81 [1982] ECR 1035; Procureur du Roi v Royer Case 48/75 [1976] ECR 497; reg 6(1)(b)(i) Allocation of Housing and Homelessness (Eligibility) (England) Regulations 2006 SI 2006/1294.

[34] reg 16 Immigration (European Economic Area) Regulations 2016 SI 2016/1052; Harrow LBC v Ibrahim [2010] ECJ C-310/38; Texeira v Lambeth LBC [2010] ECJ C-480/08.

[35] see definition of 'EEA national' in reg. 2(1) Immigration (European Economic Area) Regulations 2016 SI 2016/1052, as amended by Immigration (European Economic Area) (Amendment) Regulations 2018 SI 2018/801; DMG Memo 15/18; McCarthy (European citizenship) [2011] EUECJ C-434/09.

[36] regs 2 and 6 Allocation of Housing and Homelessness (Eligibility) (England) Regulations 2006 SI 2006/1294.

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