New adviser toolkit on worker/self-employed status for EEA nationals
The Hub has launched a new adviser toolkit on how to establish worker/self-employed status for EEA nationals. This will be relevant for those supporting EEA nationals with pre-settled status or a certificate of application to access welfare benefits such as Universal Credit in the UK.
The DWP often miscategorises EU workers at first instance as not having worker status. We have put together this toolkit to help advisers argue that their client’s work should give them a qualifying right to reside. The toolkit provides a list of some of the relevant arguments and case law that can be adapted and used to challenge a decision that an EEA client does not have worker status.
EEA nationals with pre-settled status or a certificate of application must demonstrate an additional right of residence when making an application for Universal Credit and other means tested benefits. One of the most popular ways for an EEA national to demonstrate a qualifying right of residence is through having worker status under regulation 6(1)(b) of the EEA Regulations 2016.
Worker status is an EU law concept and is very broad. It can include a range of different types of work arrangements. The EU Rights and Brexit Hub has seen many mistakes in decisions relating to worker status. For example, EEA nationals have been told that their work does not count because it doesn’t meet a minimum earnings threshold, or because they have not yet been in work for 3 months. This is not the correct test for worker status and can be challenged. It is not permitted for the UK to rely solely on earnings, or a certain period of time in work, to decide whether an EEA national has worker status.
The toolkit covers the following topics:
EEA worker/self-employed status under EU Law
The Minimum Earnings Threshold
How to establish “genuine and effective” work
Evidence of genuine and effective work
The Worker Registration Scheme for past work of A8, A2 and Croatian nationals
If you experience these kinds of decisions, it is worth challenging as there is a wealth of EU and UK case law establishing that decision makers should take a flexible approach to worker status. We have had success with highlighting these judgments to decision makers and getting clients’ current and former worker statuses recognised. Former worker status may also be important if seeking to establish a current right to reside based on retaining worker or self-employed status, permanent residence, or a derivative right to reside as the carer of a child of an EEA national former worker (this derivative right is attached to work but not self-employment).
Please contact us at law-eurightshub@york.ac.uk if you have any questions or would like further advice or drafting support.