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RESTRICTION ON THE RIGHT TO WORK IN THE UK FOR CROATIAN, BULGARIAN & ROMANIAN WORKERS. POSTED BY JOHN U

Posted on: February 27th, 2013 by admin

Restrictions on the right to work in the UK for Romanian, Bulgarian and Croatian workers

August 2013

This note sets out the legal basis on which Romanian, Bulgarian and Croatian workers can work in the UK. The note also sets out the current restrictions that are placed on Romanian and Bulgarian workers up to and including 31 December 2013, following which all restrictions will be lifted.
The note also sets out the right to work restrictions on Croatian nationals following Croatia’s accession to the European Union (EU) on 1 July 2013. Those restrictions will remain in place until 30 June 2018.

Contents:

1. Free movement of workers in the EU – the background
2. Restrictions on the right to work in the UK for Romanian and Bulgarian nationals
2.1. The basis for the restrictions
2.2. What are the restrictions?
2.3. Offences and sanctions
2.4. Changes from 1 January 2014
3. Restrictions on the right to work in the UK for Croatian nationals
3.1. The basis for the restrictions
3.2. What is a worker authorisation document?
3.3. What are the exemptions from worker authorisation?
3.4. Documents which show the right to work in the UK
3.5. Offences and sanctions

1. Free movement of workers in the EU – the background

Free movement of workers is a fundamental European principle that can be found in Article 45 of the Treaty on the Functioning of the European Union. This principle has been further developed by EU secondary legislation and the case law of the European Court of Justice. Under Article 45 (3), free movement of workers entails the right:
‘(a) to accept offers of employment actually made;
(b) to move freely within the territory of Member States for this purpose;
(c) to stay in a Member State for the purpose of employment in accordance with the provisions governing the employment of nationals of that State laid down by law, Regulation
or administrative action;
(d) to remain in the territory of a Member State after having been employed in that State, subject to conditions which shall be embodied in implementing regulations to be drawn up by

4. The provisions of this Article shall not apply to employment in the public service.’

The restriction in Article 45(4) clearly illustrates that free movement of workers does not apply to employment in the public sector; therefore access to the public service may be restricted to only include workers who are nationals of the Member State. (Examples in the UK include the Foreign Office and the Ministry of Defence.)
Article 45 further states that the above rights are subject to limitations justified on grounds of public policy, public security or public health.
The full Treaty can be found here.

2. Restrictions on the right to work in the UK for Romanian and Bulgarian nationals

2.1 Basis for the UK restrictions

Romania and Bulgaria joined the EU on 1 January 2007. The terms of their membership were set out in the Accession Treaty 2005 (the Accession Treaty) which was signed in Luxembourg on 25 April 2005. The full Accession Treaty can be found here.
Annexes VI and VII of the Accession Treaty allow existing Member States to regulate access to their labour markets by Romanian and Bulgarian nationals and make consequential adjustments to their ancillary rights of residence. Member States can continue to apply these restrictive measures for a period of five years (from 1 January 2007 to 31 December 2011). However Member States can maintain these restrictive measures for a further two years in the case of disturbances to their labour markets.
In November 2011 the Home Office confirmed that it was using the full 7 year entitlement allowed under the Accession Treaty, therefore the restrictions on Romanian and Bulgarian nationals (set out in section 2.2) remain in place until 31 December 2013.

2.2 What are the restrictions?

In order to implement the Accession Treaty, the UK Government introduced the Accession (Immigration and Worker Authorisation) Regulations 2006. Regulations 9-11 outline the current restrictions in place for Romanian and Bulgarian workers. The full Regulations can be found here.
The UK Border Agency website outlines the current restrictions and processes that should be followed when considering employing a Romanian or Bulgarian worker:

1) Check whether the worker needs an accession worker card:

A Bulgarian or Romanian national must obtain an accession worker card before they can work for you in the UK, unless they are exempt from the need to obtain a card.

A Bulgarian and Romanian national is exempt if:

 they have permission to remain in the UK which does not place any restrictions on their employment here – for example, if they have temporary or permanent permission to remainhere as the partner of a British citizen or a person settled in the UK; or  they have dual nationality and are also a citizen of another EEA state (including the UK) or Switzerland; or

 they are a family member of a Bulgarian or Romanian national who has an accession worker card; or

 they are a family member of a Bulgarian or Romanian national who is exempt from the need to obtain an accession worker card;*

 they are a family member of an EEA national (except a national of Bulgaria or Romania) who is exercising a Treaty right in the UK; or

 they were given permission to enter or remain in the UK before 1 January 2007, and their passport was endorsed with a condition restricting their employment to a particular employer or category of employment;** or

 they have been working with permission, and without interruption, in the UK for at least 12 months ending on or after 31 December 2006 (for example, they have been working here with an accession worker card for a year, or are in the UK as a student and have been in part-time employment continuously for a year); or

 they hold a registration certificate confirming that they have unrestricted access to the labour market because they are highly skilled; or

 they hold a registration certificate confirming that they are a student with restricted permission to take employment for less than 20 hours per week (during term time); or

 they are in the UK under the Seasonal Agricultural Workers Scheme (SAWS) and hold a valid work card issued by a SAWS operator; or

 they are providing services in the UK on behalf of an employer established elsewhere in the EEA; or

 they are a member of a diplomatic mission, the family member of a diplomat, or the family member of anyone who has diplomatic immunity.

* If the Bulgarian or Romanian national is exempt because they are self-employed, self-sufficient or a student, their family members’ exemption will end if the Bulgarian or Romanian national stops being self-employed, self-sufficient or a student.

** If their permission expires before they are exempt from needing an accession worker card, or if they want to do work other than the job for which the permission was granted, they will need to obtain an accession worker card.

2. Worker may require a work permit:

If the Bulgarian or Romanian national requires an accession worker card, an employer may need to obtain a work permit for them before they can apply for that card.

Work permits are not required for the following types of worker:

 airport-based operational ground staff of an overseas airline

 au pair placements  domestic workers in a private household

 ministers of religion, missionaries or members of a religious order

 overseas government employees

 postgraduate doctors, dentists and trainee general practitioners

 private servants in a diplomatic household

 representatives of an overseas newspaper; news agency or broadcasting

 sole representatives

 teachers or language assistants on an approved exchange scheme

 overseas qualified nurses coming for a period of supervised practice.’

The above restrictions are in contrast with nationals from A8 countries who took up employment in the UK after 1 May 2004 and who were required to register under the Worker Registration Scheme within one month of starting work. The Worker Registration Scheme closed on 30 April 2011 and nationals from A8 countries * can now work in the UK without restriction.

* The A8 countries are the Czech Republic, Estonia, Hungary, Latvia, Lithuania, Poland, Slovakia and Slovenia.

2.3 Offences and sanctions for illegal working

The Accession (Immigration and Worker Authorisation) Regulations 2006, outline two separate offences when it comes to employing Romanian and Bulgarian workers.

1) Regulation 12 – it is an offence to employ a Romanian or Bulgarian worker who does not have the necessary authority to undertake employment in the UK.

2) Regulation 13 – it is an offence for the Romanian or Bulgarian worker to work in the UK without
the correct authorisation to do so.

Employers who fail to carry out the necessary right to work checks face a fine of up to £5000 for each illegal worker. An employer who knowingly employs an illegal worker commits a criminal offence and faces imprisonment and/or a fine.

Members should note that, for the purposes of immigration legislation, the term ‘employer’ includes employment businesses who engage with temporary workers directly and supply them out to clients.

2.4 Changes from 1 January 2014

The restrictions set out at section 2.2. will be removed and Romanian and Bulgarian workers will be treated in the exact same way as nationals of other EU countries (i.e. they will have the unrestricted right to live and work in the UK).

3. Restrictions on the right to work in the UK for Croatian workers

3.1 The basis for the restrictions

On 1 July 2013 Croatia became the 28th country to join the EU and Croatians are now able to move and reside freely in any EU Member State. However Member States may apply restrictions on access to the labour market for a transitional period.

In the same way as it did for Romanian and Bulgarian workers, the UK passed the Accession of Croatia (Immigration and Worker Authorisation) Regulations 2013 (the 2013 Regulations) which apply restrictions to Croatian workers working in the UK. These restrictions will remain in place for 5 years (i.e. until 30 June 2018).

Therefore from 1 July 2013 until 30 June 2018 a Croatian national will only be able to work in UK if they hold a valid accession worker authorisation document or if they are exempt from work authorisation.

3.2 What is a worker authorisation document?

A worker authorisation document is a Purple Registration Certificate issued by the Home Office and contains an endorsement restricting the holder’s right to work to a particular named employer and/or a particular type of work.

Croatian nationals need a work authorisation document giving them permission to work before they start working in the UK, unless:

a) one of the exemptions apply (see below); or

b) the Croatian worker was given permission to enter or remain in the UK before 1 July 2013, and their passport has been endorsed with a condition restricting their employment to a particular employer or category of employment.
(Please note that if this permission to enter or remain expires before they qualify for one of the exemptions from work authorisation requirements, or they wish to engage in employment other than the job for which the leave was granted, the worker will need to obtain a purple registration certificate.)

3.3 What are the exemptions from work authorisation?

Some Croatian nationals are exempt from the requirement to have work authorisation. This means they do not require permission to work in the UK as they have unrestricted access to the UK labour market.

The UK Border Agency outlines the following exemptions for Croatian nationals:

‘1) On 30 June 2013, they had leave to enter or remain, and that leave did not place any restrictions on taking employment in the UK (see examples below).

2) On 30 June 2013 they had already been working with permission in the UK and have done so for a continuous period of 12 months ending on that date. This can be in any number of jobs, provided that they had leave in their passport that allowed them to work for each one.

3) They have been working legally and continuously for a period of 12 months ending or after 30 June 2013. This can be in any number of jobs, provided that they had permission for each one, or was not required to obtain it.

4) They have acquired a right of permanent residence under Regulation 15 of the EEA regulations (see below).

5) They are also a national of another EEA Member State (except where, until the end of December 2013, they are a national of Bulgaria and Romania and are subject to the worker authorisation requirements applied to nationals of those countries).

6) They are the spouse, civil partner, unmarried or same sex partner of a UK national or a person settled in the UK.

7) They are the spouse, civil partner, unmarried or same sex partner or child under 18 of a person who has leave to enter or remain in the UK that allows a person to work in the UK. For example, this would apply to a Croatian whose husband was a non-EEA national who was a work permit holder or had leave under a category of the Points Based System that allowed them to work for a particular employer or a specific job category.

8) They are the spouse, civil partner, unmarried or same-sex partner or the Croatian descendant aged under 21 or dependant of a Croatian national who has been issued with an accession worker authorisation document and is working in accordance with the conditions placed in that document.

9) They are a highly skilled person and hold a registration certificate confirming that they have unrestricted access to the labour market.

10) They are a posted worker.

11) They are a member of a diplomatic mission or are in another specified category exempt from the 1971 Act.

12) They are in the UK as a student and they either:
a) hold a registration certificate confirming that they:
i) are exercising a Treaty right as a student and they cannot work for more than 20 hours per week during term time, (not including any time spent on a work placement that is an assessed part of their course); or ii) are working during vacation periods; or

b) have leave to enter or remain as a student and are working in accordance with any conditions attached to that leave. The conditions on employment of leave granted as a student are usually that the holder can only work up to a maximum of 20 hours during term time, but as long as they want during holiday periods. This will apply in circumstances where they had leave as a student before 1 July 2013, continue to meet the criteria as a student and this leave is still valid.

If they do not fit into any of the above categories, they will need an accession worker authorisation document.’

The above information on the right to work for Croatian workers is taken from guidance produced by
the Home Office, the complete guidance can be found here.

3.4 Documents illustrating the right to work

The UK Border Agency only accepts certain documents to prove that a Croatian worker has the right to work in the UK, including:

1) a Blue, Yellow or Purple Registration Document; and

2) a passport of travel document endorsed before the the 1 July 2013 showing that the holder has
leave to enter or remain in the UK; and

3) an EEA registration document which confirms that the holder has permanent residence; and

4) a passport, national identity card or travel document confirming the holder’s exemption from the
requirement to have work authorisation.

3.5 Offences and sanctions

These are the same as set out in section 2.3 with regards to Bulgarian and Romanian nationals.

1) Under Regulation 11(2) of the 2013 Regulations, employers who fail to carry out the necessary right to work can face a fine of up to £5000 for each illegal Croatian worker.

2) Under Regulation 15 of the 2013 Regulations employers will commit a criminal offence if you knowingly employ an illegal Croatian worker, possible sentences include imprisonment and/or
paying a fine.

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