Eligibility for assistance of EEA self-employed people before January 2021

The definition of self-employment for the purposes of access to homelessness assistance and the conditions for retaining the self-employed status.

This content applies to England

Eligibility rules before and after 1 January 2021

Before 1 January 2021 these rules applied to EEA nationals who were exercising EU free movement rights in the UK.

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

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.

Definition and right to reside of self-employed people

EEA nationals who were self-employed had a right to reside in the UK and were eligible for homelessness assistance. EU and UK regulations use the term 'self-employed person'.[2]

A self-employed person is an 'independent provider of services', in contrast to a worker, who 'performs services for and under the direction of another person in return for which they receive remuneration'.[3]

Genuine and effective self-employed activity

As in the case of workers, the self-employed activity had to be 'effective and genuine' and not be on such a small scale as to be classified as 'marginal and/or ancillary'.[4]

If a self-employed person was dependent on means-tested benefits, this was not relevant in determining whether their self-employed activities were genuine and effective.[5]

What constituted economic activity was broad and could include:

  • selling the Big Issue[6] (in one case, the very low income of a Big Issue seller was relevant to the finding that her economic activity was not genuine and effective[7])

  • activities carried out as a member of a community religion[8]

  • prostitution[9]

A person who had taken preparatory steps to set up a business or provide services could qualify as self-employed.[10]

Caring for a person whose entitlement to a qualifying state benefit meant that the carer received carer's allowance was not classed as an economic activity. The receipt of carer's allowance in this situation was not remuneration as there was no link between payment of the allowance and the level of caring services provided.[11]

Retaining self-employed status

An EEA national retained their self-employed status if they:[12]

  • were temporarily unable to engage in activities as self-employed for reasons not of their making

  • were temporarily unable to engage in activities as a self-employed person as the result of illness or accident

  • had become involuntarily unemployed after a period of self-employment, and were registered as a jobseeker

  • had given up self-employment due to the physical constraints of the late stages of pregnancy and the aftermath of childbirth, provided they returned to self-employment or employment within a reasonable period after the birth

Temporarily unable to engage in self-employment activities

EEA nationals who were self-employed did not always have to be actively working in order to maintain their self-employment status.

The Upper Tribunal held that:[13]

  • the concept of self-employment 'encompasses periods of both feast and famine', and just because there is no work to do at a particular moment does not mean a person has ceased to be self-employed

  • self-employment includes periods of rest, and holidays

  • the amount of work done is only one factor in determining whether a person has continued to be self-employed

  • any other steps the person is taking in the course of self-employment – such as marketing to generate more work – are also relevant. The question can only be decided in the context of the facts at any particular time

Involuntarily unemployed and registered as jobseeker

The Court of Justice of the European Union (CJEU) has ruled in the case of Gusa that legislative provisions[14] which allowed a worker to retain worker status after having become involuntarily unemployed and while registered as a jobseeker, also applied to a self-employed person. This case concerned a self-employed plasterer who could not find work because building work had dried up following a time of economic recession. With effect from 24 July 2018, the UK regulations were amended accordingly.[15]

EEA self-employed people who were not working could also retain their self-employed status if they were seeking self-employed work. How long this might continue depended upon the individual's circumstances.[16]

Pregnancy and childbirth

EEA workers who ceased employment as a result of the physical constraints of pregnancy and the aftermath of childbirth retained their worker status provided that they started working again (or re-entered the labour market) within a reasonable period after giving birth. This is known as the ‘St Prix’ ruling.

As in the case of workers, self-employed EEA nationals who ceased self-employment because of the physical constraints of the late stages of pregnancy and the aftermath of childbirth retained the status of being self-employed, provided that they returned to self-employment (whether to the same or different activities) or employment within a reasonable period after the birth.[17]

Length of time self-employment status could be retained

The same rules that cover how long EAA workers could retain their status while involuntary unemployed, including the Genuine Prospect of Work test, also applied to self-employed people and determined how long a person could retain their self-employed status.[18]

Last updated: 16 March 2021

Footnotes

  • [1]

    see the The Immigration and Social Security Co-ordination (EU Withdrawal) Act 2020 (Consequential, Saving, Transitional and Transitory Provisions) (EU Exit) Regulations 2020 SI 2020/1309 and The Citizens’ Rights (Application Deadline and Temporary Protection) (EU Exit) Regulations 2020 SI 2020/1209.

  • [2]

    Article 7(1) Directive 2004/58/EC (Citizenship Directive); reg 4 Immigration (European Economic Area) Regulations 2016 SI 2016/1052.

  • [3]

    Allonby v Accrington and Rossendale College [2004] EUECJ C-256/01; Tilianu v Secretary of State for Work and Pensions [2010] EWCA Civ 1397.

  • [4]

    Levin v Staatssecretaris van Justitie [1982] EUECJ R-53/81; HMRC v IT (CTC) [2016] UKUT 252 (AAC).

  • [5]

    Kempf v Staatssecretaris van Justitie [1986] EUECJ R-139/85.

  • [6]

    Bristol CC v FV (HB) [2011] UKUT 494 (AAC); HMRC v IT (CTC) [2016] UKUT 252 (AAC).

  • [7]

    DV v SSWP [2017] UKUT 155 (AAC).

  • [8]

    Steymann v Staatssecretaris van Justitie [1988] EUECJ R-196/87.

  • [9]

    Jany v Staatssecretaris van Justitie, [2001] EUECJ C-268/99.

  • [10]

    F v HMRC (TC) [2017] UKUT 334 (AAC); Social Security Commissioners' decision CIS/3559/1997.

  • [11]

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

  • [12]

    reg 6(4) Immigration (European Economic Area) Regulations 2016 SI 2016/1052, as amended by Immigration (European Economic Area) (Amendment) Regulations 2018 SI 2018/801; Dakneviciute (Freedom of establishment - Self-employment - Judgment) [2019] EUECJ C-544/18 (19 September 2019); Gusa v Minister for Social Protection [2017] EUECJ C-442/16 (20 December 2017).

  • [13]

    SSWP v JS (IS) [2010] UKUT 240 (AAC).

  • [14]

    Article 7(3)(b)-(c) Directive 2004/58/EC; reg. 6(2)(b)-(c) Immigration (European Economic Area) Regulations 2016 SI 2016/1052.

  • [15]

    Gusa v Minister for Social Protection [2017] EUECJ C-442/16 (20 December 2017) ; reg 6(4) Immigration (European Economic Area) Regulations 2016 SI 2016/1052. See also DMG Memo 15/18.

  • [16]

    Secretary of State for Work and Pensions v AL (JSA) [2010] UKUT 451 (AAC); Secretary of State for Work and Pensions v JB (JSA) [2011] UKUT 96 (AAC).

  • [17]

    Dakneviciute (Freedom of establishment - Self-employment - Judgment) [2019] EUECJ C-544/18 (19 September 2019)

  • [18]

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