Eligibility of workers for homelessness assistance before Brexit

Before January 2021 these rules applied to EEA nationals who were exercising EU free movement rights in the UK.

After January 2021 these eligibility rules continue to apply to EEA nationals who have either:[1]

• pre-settled status granted under the EU Settlement Scheme

• temporary protection, until they receive a decision on their application to the EU Settlement Scheme

The information and footnotes are kept for reference only and will not be updated.

EEA nationals moving to the UK from 1 January 2021 are subject to new eligibility rules.

An EEA worker had the right to reside in the UK and was eligible for homelessness assistance.[2]

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

Case law

The definition of worker was broad and could include people who were not in work. The following principles have been established in UK and EU courts:

• the term 'worker' included a person who had moved to and stayed 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 had to perform services of some economic value and the performance of such services had to be for and under the direction of another person[6]

• the work had to be a genuine economic activity as opposed to a purely voluntary or leisure pursuit; the provision of services could be an acceptable form of payment, for example food and lodging in return for work[7]

• caring for a person whose entitlement to a qualifying state benefit meant that the carer received carer's allowance was not an economic activity, nor was the receipt of carer's allowance in this situation to be regarded as 'remuneration' as there was no correlation between payment of the allowance and the level of caring services provided[8]

• employment that was cash-in-hand, without deductions for tax and national insurance, could give an EEA national the 'worker' status[9]

• provided the work was genuine and effective, the motives of the person employed were irrelevant[10]

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

If a person depended on means-tested benefits this did not prevent their work from being genuine and effective.[11]

A worker could be someone whose work was part time, or whose pay was below subsistence level.[12] Work for a short period of time or for only a few hours a week could create worker status;[13] this would have included people on 'zero-hour' or 'on-call' contracts.

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

The minimum earnings threshold(MET) did not form part of the homelessness statutory framework.[15] If a homeless EEA national was found ineligible for assistance based on the fact that their income did not meet the MET test, the decision could be challenged.

An EEA national retained their worker status (and continued to be eligible for homelessness assistance, social housing and welfare benefits), if they:

• were temporarily unable to work as a result of illness/accident

• gave up work due to physical constraints of pregnancy and childbirth

• were in 'involuntary unemployment'

• had embarked on vocational training

Each of the provisions attracted additional conditions that had to be met in order for the EEA worker to retain their status.

EEA workers retained their worker status if they became temporarily unable to work because of an illness or accident.[16]

The courts 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] It was the inability to work that had to be considered, not whether the illness was temporary or permanent.[19]

Whether a person is unable to work because of illness or accident is a factual question. The courts 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 was no requirement for a person to claim some form of incapacity benefit in order to show they were temporarily unable to work because of illness or accident.[20] However, such a claim could provide evidence of inability to work.

Women unable to work temporarily due to illness during pregnancy retained worker status.

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

The Upper Tribunal held that in most cases the UK's statutory 52-week period of maternity leave was 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 was 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) confirmed that worker status could 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 could be retained had to be assessed 'prospectively' – ie, if a woman stated that she intended to return to work within 41 weeks of childbirth, she could be treated as retaining worker status for that period. If she changed her mind within the period, she would lose her 'St Prix' worker status but the DWP would not seek to recover benefits paid on the basis of her original stated intention.

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

The scope of the 'St Prix' principle was 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]

EEA nationals retained their worker status if, after having been employed in the UK, they were in duly recorded involuntary unemployment and registered as seeking work with the relevant employment office.[25]

In practice, these requirements were both satisfied by registration with the jobcentre.

The term ‘involuntary unemployed’ was not defined in the legislation. However the courts established that whether unemployment was involuntary or voluntary was not determined by the circumstances in which a job was lost but depended on whether the EEA national was still part of the labour market, for example by looking for another job. The crucial issues for consideration were:[26]

• whether a person had maintained a link to or permanently exited the labour market

• the circumstances in which employment was terminated

• intentions and activities thereafter

For how long worker status could be retained depended on how long the EEA national had worked before becoming unemployed.[27]

Employed in the UK for a year or more before losing their job

EEA nationals who worked in the UK for a year or more before becoming unemployed retained their worker status for a minimum of six months if they could show compelling evidence of both:[28]

• continued work-seeking, and

• genuine chance of finding a job

This is known as the Genuine Prospect of Work (GPOW) test. The EU law itself did not require EEA nationals previously employed in another member state for one year or longer to show genuine chance of being engaged in employment, in order to retain worker status for longer than six months.[29] In a case concerning entitlement to housing benefit,[30] the Upper Tribunal found the application of the ‘compelling evidence of finding a job' requirement to a previously economically active EEA national unlawful, because it did not correspond to EU law, under which the application of the test was restricted to EEA jobseekers.

After 31 December 2020, previously economically active EEA workers and self-employed persons no longer have to show that they have a genuine chance of finding another job in order to retain their eligible status.[31] The other conditions for retaining the status of a worker in retained EU law continue to apply.[32]

Employed in the UK for less than a year before losing their job

If EEA nationals worked in the UK for less than a year before becoming unemployed, they retained their worker status for a maximum of six months and there was no minimum qualifying employment period. [33]

A person retained their worker status if they were either:

• involuntarily unemployed and had embarked on vocational training[34]

• undertaking vocational training which was related to their previous employment following a decision to give up work[35]