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

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2013/14 HE Student Finance Assessing Eligibility Guidance course of study then the worker status is merely ancillary and the applicant would not be eligible for support. However, it is not the intention of the person concerned that is important but objective factors related to the employment. Whether the sum paid is a market rate. For example, if a person is employed full-time at a market rate this would be an indication that their employment was not ancillary to their studies. This does not mean that a person must be employed full-time at a market rate in order to be a worker, but employment at less than market rate, or where the employer is a family member or friend for example, may be an indicator of whether the employment is genuine. The number of hours worked/whether the work is the predominant activity. Whilst a worker can employed on either a full-time or part-time basis and still be classed as a worker in cases where only a limited number of hours are worked this may be an indication that the employment activities are purely marginal and ancillary. In the opinion of the Advocate General in the case of Grzelczyk: “…the holding of occasional „student jobs‟ will scarcely satisfy those criteria. It is indeed conceivable that a degree of alternation between study and occupational activity might be taken into account in assessing the criteria „marginal and ancillary‟. In those circumstances, the criterion against which the occupational activity would have to be measured might be whether the vocational training was predominant.” 117. The Department is of the view that employment which is unlawful is unlikely to be able to satisfy the test of being effective and genuine employment. For example, A8 nationals who have not registered their employment in accordance with the Workers Registration Scheme will not be considered to be genuine and effective employment and thus will not be eligible for maintenance support for any period during which their employment has not been properly registered. Please note that the A8 Worker Registration Scheme was discontinued from 1 st May 2011. By then the A8 countries were in the EU for over seven years and their nationals enjoy the same rights as those of established EU member states. As the scheme only required people to register if they were working for longer than one month, the practical abolition of the scheme was effective from 1 st April 2011. Family members of EEA migrant workers, EEA frontier workers, EEA frontier self-employed persons, EEA self-employed and Swiss employed persons, Swiss frontier employed persons, Swiss frontier self-employed persons or Swiss self-employed persons 118. The family members of an EEA or Swiss migrant worker (as defined in Schedule 1) are eligible for support on the same basis as the migrant worker himself or herself. The nationality of the family member is not relevant. Version 1.8 32
2013/14 HE Student Finance Assessing Eligibility Guidance Family members of EEA migrant workers including children. Children of EEA migrant workers may be eligible for support under either paragraph 6 or paragraph 7 of Schedule 1. „Parent‟ refers to someone who is legally responsible for a child and is defined as including a guardian and any other person having parental responsibility for a child - this includes a step-parent. Paragraph 6 – Dependent direct descendants 119. In order to be eligible for support under this paragraph a student must meet one of the following: be under the age of 21 or dependent on the EEA migrant worker or on the spouse or civil partner of the worker The student must also be able to demonstrate that they have lived with a parent in the UK and at the time the parent lived here as a migrant worker. In every case the parent must have established migrant worker status in this country and the child must meet the residence conditions Paragraph 7 – Children of former EEA migrant workers 120. To be eligible for support under this paragraph a student must be the child of someone who was an EEA migrant worker in the UK and who has remained in this country in order to complete their studies. To consider eligibility under paragraph 7, we are of the opinion that it would be reasonable to require that the child had studied here (at a level below HE) whilst they were dependent or under 21. Once eligibility is established under this paragraph, it will continue, whether or not the parent remains in the UK. 121. Paragraph 7 students are persons who are entitled to support by virtue of Article 12 of Council Regulation 1612/68 on the freedom of movement as workers as extended by the EEA Agreement. 122. Article 12 states that “The children of a national of a Member State who is or has been employed in the territory of another Member State shall be admitted to that State's general educational, apprenticeship and vocational training courses under the same conditions as the nationals of that State, if such children are residing in its territory. Member States shall encourage all efforts to enable such children to attend these courses under the best possible conditions. 123. The Department advises that this provision may apply to the children of EEA workers in the UK where that worker is no longer a worker here. Migrant Worker coming from Gibraltar 124. “EEA migrant worker” means an 'EEA national who is a worker other than an EEA frontier worker in the United Kingdom'. As EEA national is defined as a national of an EEA state other than the United Kingdom, this does not include Gibraltar nationals. Gibraltar is only a part of the EEA by virtue of membership of the EU being extended to it through its connection with the UK. Gibraltar is not a Version 1.8 33
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