SFE Assessing Eligibility Guidance 2013/14 - Practitioners - Student ...

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2013/14 HE Student Finance Assessing Eligibility Guidance relevant status is acquired in–year the level of support for that year is set out in the relevant sections of the main body of the Regulations. 105. Applications for support must be made no later than nine months after the first day of the first academic year for which support is being applied for, or within nine months of an event listed in Regulation 17 occurring, where the event occurs after the first day of the academic year. Obtaining eligibility under paragraph 6(1) of Schedule 1 is an event listed in Regulation 17 (i.e. becoming a migrant worker). 106. If an application for support is received within the initial nine month period and the student subsequently wishes to apply for a new or additional amount of loan then the loan application must be received no later then one month before the end of the academic year to which the application relates. 107. Applications for fee support or maintenance grants should only be processed if received within the nine month time frame set out in Regulation 9 (see paragraph 69 above). This rule applies equally to applications for fee support and maintenance grant and applies irrespective of whether one or more applications are being submitted. Applications for support relating to previous academic years should only be processed if the applications for support were received within the timeframes. 108. Where the relevant status is acquired in-year the level of support for that year will be as is set out in the relevant sections of the main body of the Regulations. 109. In some cases the SFE assessment of whether a potential worker, employed person, or self employed person is an EEA migrant worker may need to be carried out once the course has started. This will apply in cases where the student becomes a migrant worker during their course; continues to work once their course has started, students have given up work to study, and therefore need to show a link between their studies and their previous employment. Given that students do not always attend the course for which they originally applied (for example because their exam grades are better, or worse, than expected), it will not be possible to establish with certainty whether there is the necessary link until SFE knows which course is actually being attended. 110. In deciding whether an EEA national can be determined to be a worker, or a Swiss national can be determined to be an employed person, SFE should look closely at the EC law meaning. 111. In the Lair case the European Court of Justice (ECJ) stated that „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 the Department's view, this means that where it appears to SFE, having regard to all the circumstances that a person has taken up employment in the UK solely for the purpose of becoming eligible for student support it will be under no duty to bestow such support on him. Version 1.8 30
2013/14 HE Student Finance Assessing Eligibility Guidance Students who cease work before starting the course 112. Students who voluntarily cease work before starting their course will retain their status as migrant workers if there is a link between their work and their studies. There has been little guidance from the ECJ on what constitutes a sufficient 'link' between the course of study and the previous employment for these purposes. In the cases of Lair and Bernini the ECJ indicated that what was important was the relationship between the purpose or subject matter of the studies and the previous employment. 113. Article 7, Paragraph 3 of Directive 2004/38, sets out the circumstances in which an EEA or Swiss national who is no longer a worker or self-employed person, retains their status as a worker or as a self-employed person. 114. SFE should note that the Department has been advised that an EEA or Swiss national is not entitled to be classified as a migrant worker for student support purposes, where they have arrived in the UK without work, are actively seeking employment but have not yet worked here. Remuneration for work 115. EEA or Swiss nationals who came to the UK to work but have received or receive something less than a market rate salary for their work, may still fall within the definition of a migrant worker. In the case of Brown the ECJ set out a definition of a migrant worker: ‘any person who pursues an activity which is effective and genuine, to the exclusion of activities on such a small scale as to be regarded as purely marginal and ancillary, is to be treated as a worker. 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.’ The ECJ has said that „remuneration‟ means consideration for the services in question, and therefore if someone works in exchange for, for example free food, free accommodation or an allowance, they may still be considered to be a worker. Effective and genuine/Marginal and ancillary employment 116. In trying to decide whether a person‟s employment is effective and genuine and not purely marginal and ancillary it may be relevant to consider, amongst other things, the following factors: Whether the work is seasonal or temporary. In the case of Raulin the Court found that in assessing the effective and genuine nature of the activity in question account should be had to the irregular nature and limited duration of the services actually performed under a contract for occasional employment. 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 Version 1.8 31
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