Once you start work in the UK as a paid employee you acquire 'worker' status except where your work is not considered to be genuine or is defined as 'marginal'. As a worker you have the right to continue to live in the UK and to access social security benefits and housing.
The law treats unemployed EEA workers, retired workers and EEA jobseekers differently:
- You are a jobseeker if you have entered the UK looking for work but have not yet found employment. You are allowed to live in the UK and seek work but have limited access to UK social assistance schemes. You may lose these rights if you have not found work after six months.
- You are an unemployed worker if you have previously worked in the UK and are now temporarily unable to work. After six months' unemployment, however, you may lose your rights as a worker and become a jobseeker.
- You are a retired worker if you have worked in the UK as a worker or self-employed person and have now retired from the labour market due to old age, sickness or incapacity.
To qualify as a worker the work that you do must be:
- 'Genuine and effective': there must be a real job. Even if there is no contract, there must be an employer and wages or the equivalent in goods or services must be paid. Family or friendly arrangements with no contract or regular hours, or those that do not pay a minimum wage may be regarded as not genuine or effective.
- Not 'marginal or ancillary'. Where hours and earnings are very low, the work may be 'marginal'.
Although you should not be denied worker status just because your earnings are so low that they need to be supplemented by benefits (e.g. tax credits and/or housing benefit), if you are claiming benefits as a worker or former worker and your earnings are too low to pay national insurance (£166 per week in 2019/20), the benefits authority may decide that your work is or was marginal. A number of factors should be considered before deciding that the work that you do is marginal or not effective or genuine. These include:
- the period of employment
- the number of hours worked
- the level of earnings
- whether the work is regular or erratic.
These factors must be considered as a whole and the absence or presence of one cannot be considered as being conclusive.