Attached link to case where ECJ considers whether someone who worked for 5.5 hours per week is a 'worker'. Although case concerns Turkish Association Agreement, that has same definition of 'worker' as general EC definition so should be of general relevance.

ECJ holds that someone is a worker in that situation as long as the work itself is 'real and genuine'. It sends case back to the national court to decide this by looking at the work's terms and conditions and explicitly rules out looking at factors such as whether the work would need to be topped up with benefits.

http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:62009J0014:EN:HTML

Thanks to Martin at CPAG for highlighting this.

I have a client (A8) who is contracted to work 5 hours pw. She tried to register the work under the WRS but the UK Borders Agency decided the work was not 'genuine and effective employment'. Would the ECJ be relevant do you think?

I think the ECJ case may be relevant to the decision. Your remedy here would be to threaten judicial review of the Home Office refusal to register. I have heard rumours in the past that they operate a 10 hours cut off point.That is certainly unlawful.

However, if they can show that they have correctly considered whether or not your client is a worker for the purposes of Article 39 (conducting the factual examination described in the case and taking account of all relevant factors ie not just number of hours) then things will be difficult.

Martin.

Thanks Martin- very helpful.

A belated contribution...

We have had the odd case where JC+ seems to run the logic of "If you need to claim JSA, the work can't be a genuine and effective worker". Whilst its clearly right that Host countries are required to make case by case decisions about the nature of the work in terms of the 'genuine and effective' test, we know that it has been long established that you can be genuine and effective, and top up with JSA etc. I can'f find Kempf, but here is a clip from the ECJ cases Vasouras and Koupatantze (C 22/08 and C 23/08)...

"...The fact that the income from employment is lower than the minimum required for subsistence does not prevent the person in such employment from being regarded as a ‘worker’ within the meaning of Article 39 EC (see Case 53/81 Levin <1982> ECR 1035, paragraphs 15 and 16, and Case C‑317/93 Nolte <1995> ECR I‑4625, paragraph 19), even if the person in question seeks to supplement that remuneration by other means of subsistence such as financial assistance drawn from the public funds of the State in which he resides (see Case 139/85 Kempf <1986> ECR 1741, paragraph 14)."

Steve