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

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
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