EEA Workers
Definition of the term 'worker' and the circumstances when worker status is retained if the person ceases to work.
Defining 'worker'
The Treaty on the Functioning of the European Union (TFEU) establishes the freedom of movement for workers within the European Union (EU) and prohibits any discrimination based on nationality between workers of Member States with regard to employment, remuneration and other conditions of work and employment. For EU citizens, the Treaty expressly provides the following rights: [1]
free movement between Member States for the purpose of accepting an offer of employment actually made
to stay in a Member State for those who are actually in work, and
to remain when a period of actual work ends either on retirement or through accident or ill health.
The term 'worker' is not defined in Directive 2004/38/EC (the Citizenship Directive), but the UK Regulations implementing the Citizenship Directive define the term as 'a worker within the meaning of Article 45' of TFEU. [2]
Case law
The definition of 'worker' is broad and can include persons who are not in work (see 'Retaining worker status' below). The following principles have been established in UK and EU case law:
the term 'worker' includes a person who has moved to and stays in another Member State for the purpose of taking up an offer of employment actually made [3]
the EEA national must actually have been employed in the UK [4]
the person must perform services of some economic value and the performance of such services must be for and under the direction of another person [5]
the work must be a genuine economic activity as opposed to a purely voluntary or leisure pursuit; the provision of services can be an acceptable form of payment, eg food and lodging in return for work [6]
caring for a person whose entitlement to a qualifying state benefit means that the carer receives carer's allowance is not an economic activity, nor can the receipt of carer's allowance in this situation be regarded as 'remuneration' as there is no correlation between payment of the allowance and the level of caring services provided [7]
employment that is 'cash-in-hand', ie without deductions for tax and national insurance, can give an EEA national 'worker' status [8]
provided the work is genuine and effective, the motives of the person employed are irrelevant - a person can be classified as a worker even if her/his subjective intention was to create a situation where s/he is classified as a worker for another purpose, for example homelessness assistance. [9]
Is the work genuine and effective?
Case law has established that a worker is someone whose work is 'genuine and effective', as opposed to 'marginal and ancillary'.
If a person depends on means-tested benefits this does not prevent her/his work from being genuine and effective. [10]
A worker may be someone whose work is part time, or whose pay is below subsistence level, [11] and work for a short period of time or for only a few hours a week can create worker status; [12] this should include people on 'zero-hour' or 'on-call' contracts.
It is for the Member State to determine whether the work is on such a small scale or on such an irregular or occasional basis that it may be treated as marginal or ancillary, but any such decision must be informed by the principles set out in European Court of Justice (CJEU) case law. [13]
Retaining worker status
A person who has been employed in the UK must continue to be treated as a worker, and continue to benefit from the worker's right to reside, in all the following situations:
Temporarily unable to work as a result of illness or accident
A worker will retain her/his worker status if s/he becomes temporarily unable to work because of an illness or accident. [14]
It has been held that 'temporarily unable to work' means that the inability to work must not be permanent. [15] Permanent incapacity can mean unlikely to be able to work in the foreseeable future. [16] In one case, the Upper Tribunal stressed that it is the inability to work that must be considered, not whether the illness is temporary or permanent. [17]
Whether a person is unable to work because of illness or accident is a factual question. The Upper Tribunal has 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 is no requirement for a person to claim some form of incapacity benefit in order to show that s/he is temporarily unable to work because of illness or accident. [18] However, such a claim may provide evidence of inability to work.
A woman unable to work temporarily due to illness during pregnancy will retain worker status.
Stops working due to pregnancy
A woman who ceases employment as a result of the physical constraints of pregnancy and the aftermath of childbirth retains her worker status provided she resumes working within a 'reasonable period' of giving birth. This is known as the 'St Prix' judgement. What constitutes a reasonable period depends on the facts of each case, but it must take account of national laws on maternity leave and other health and safety provisions. [19]
The Upper Tribunal has held that in most cases the UK's statutory 52-week period of maternity leave is 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 is sufficient to protect a woman relying on retaining her worker status as a result of pregnancy. [20]
Guidance issued by the Department for Work and Pensions (DWP) confirms that worker status can usually be retained for 52 weeks - generally 11 weeks before and 41 weeks after giving birth. [21]The question of how long the right to reside as a worker will be retained must be assessed 'prospectively' - ie, if a woman states that she intends to return to work within 41 weeks of childbirth, she can be treated as retaining worker status for that period. If she changes her mind within the period, her 'St Prix' worker status will be lost but the DWP will not seek to recover benefits paid on the basis of her original stated intention.
A woman who is on maternity leave, whether paid or unpaid, from her employment remains a worker throughout and does not need to rely on the provisions governing the retaining of worker status.
Involuntarily unemployed and registered as a jobseeker
A person will retain her/his worker status if, after having been employed in the UK, s/he is duly registered as a jobseeker and has a genuine chance of finding a job.
For how long such a worker can retain her/his worker status will depend on how long s/he has worked before becoming unemployed: [22]
if s/he has worked in the UK for a year or more before becoming unemployed, s/he will retain her worker status for a period of six months or for such a longer period as s/he can show 'compelling evidence' of continued work-seeking and of her/his genuine chance of finding a job. [23] This is known as the Genuine Prospect of Work (GPOW) Test. The Upper Tribunal has held that 'compelling evidence' means no more than evidence that, on the balance of probabilities, the claimant is continuing to look for work and has a genuine chance of securing employment. [24] The DWP has issued guidance which states that the test is definitely satisfied where: ]
the claimant has a definite offer of a specific job that constitutes genuine and effective work, or
a change of circumstances, such as relocating or completing training, means that the claimant will secure a job in the immediate future. [25]
if s/he has worked in the UK for less than a year before becoming unemployed, s/he will retain her worker status for a maximum of six months only. [26]
In a case concerning entitlement to housing benefit, [27] 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 with EU law, under which the application of the test is restricted to EEA jobseekers.
Vocational training
Children of a worker
Where the child of a worker has started full-time education, the child and her/his primary carer will retain a right of residence even after the worker has ceased to work. [30] For more information see the page on Family members of EEA Nationals.
Last updated: 22 April 2020