INTRODUCTION: Historical Background:
THE 2004 ACCESSION OF 8 NEW STATES TO THE EUROPEAN UNION
Prior to 1 May 2004 the member states of the European Union were Austria, Belgium, Denmark, Finland, France, Germany, Greece, Holland, Ireland, Italy, Luxembourg, Portugal, Spain, Sweden and the United Kingdom.
On 1 May 2004 these EU member states were joined by 10 new members ( Czech Republic, Estonia, Cyprus, Latvia, Lithuania, Hungary, Malta, Poland, Slovenia and Slovakia ) under an Accession Treaty signed in Athens on 16 April 2003.
The European Economic Area is comprised of all the above-mentioned countries plus Iceland, Liechtenstein and Norway. The nationals of these 3 countries ( which are not members of the EU ) have the same rights as the nationals of original EU members states to enter, live in and work in the UK.
Of the 10 countries who joined the EU on 1 May 2004 Cyprus and Malta were given the same free movement rights as are enjoyed by the nationals of the pre-exisiting EU. However, the nationals of the other 8 states were subject to transitional provisions. Until 1 May 2011 such nationals did not enjoy full free movement rights. They did have the same full rights as other EU nationals with regard to freedom of establishment of the self-employed and for other purposes such as studying and providing services. Until 5 May 2011 the nationals of the 8 accession states were subject to the Workers Registration Scheme. This meant that such nationals who were legally employed and admitted for more than 12 months for employment purposes prior to 30 April 2004 continued to enjoy continued access to the labour market. If such nationals were already in the UK on 30 April 2004 and if they were in legal employment, they could continue to work without registering.
Workers from those 8 states who began work in the UK after 1 May 2004 had to apply for a registration certificate within 1 month of beginning work if they were to be allowed to continue working for their employers.
This Workers Registration Scheme closed on 30 April 2011 and now the nationals of those 8 accession countries have free access to the labour market. Time spent as a worker here under that scheme will count towards acquiring the right to permanent residency.
THE 2007 ACCESSION OF BULGARIA & ROMANIA TO THE EUROPEAN UNION
On 25 April 2005 the Treaty of Accession of Bulgaria and Romania was signed between those two countries and the member states of European Union . It came into force on 1 January 2007. Since then Regulations have been made by the UK Secretary of State on the free movement of the nationals of the two counties. These regulations have restricted the access of such nationals to the labour market. Although employment is restricted , self-employment and the right to establish a business are not. Likewise students and the self-sufficient are not restricted.
The Regulations provide that Bulgarians and Romanians need permission to work here as employees unless they fall into one of the exempted categories. They are required to hold an accession worker authorisation card or they can work under the Seasonal Agricultural Workers Scheme ( SAWS )or the Sectors Based Scheme (SBS).
The SAWS scheme enables Bulgarians and Romanians to come here and undertake temporary seasonal work in the UK Agricultural and Horticultural industry for up to 6 months. For a copy of the leaflet about this please contact me.
The SBS scheme allows Bulgarians and Romanians to come her and to do low-skilled work in the food manufacturing sector. For further information about these two schemes please contact me.
Permission to work is not needed if you are working in a self-employed capacity. However you can apply for a registration certificate which confirms your right to work as a self-employed person in the UK if you wish to do so.
Once you have been working legally in the UK as an employee for a continuous period of 12 months , you will have full rights of free movement and will no longer need permission to work. You can then get a registration certificate confirming your right to live and work in the UK although you do not need to do so.
If you are a student here you may work for up to 20 hours per week during term time and full-time during vacations from your course BUT first you must obtain a registration certificate confirming that you are a student with limited access to the labour market.
You will need to apply for an ACCESSION WORKER CARD authorising you to work as an employee here UNLESS:
- You are exempt ( see below )
- You are coming to the UK under SAWS and hold a valid card issued by a SAWS operator
- You were given permission to enter or remain in the UK before 1 January 2007 and your passport is endorsed with a condition restricting your employment to a particular employer or category of employment. If this permission to remain expires before you become exempt from work authorisation requirements or you wish to change to another job, you will need to obtain an accession worker card
EXEMPTION FROM REQUIREMENT FOR EMPLOYER TO OBTAIN A WORK PERMIT
Most categories of employment will require your employer to obtain a work permit before you apply for an accession worker card. However, there are certain categories of employment which do not require this and you will only have to apply for an accession worker card. These are:
- 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 employment
- Postgraduate doctors, dentists and trainee general practitioners
- Private servants in a diplomatic household
- Overseas newspaper,news agency or broadcasting agency representatives
- Sole representatives
- Teachers or language assistants on an approved scheme
- Overseas qualified nurses coming for a period of supervised practise
EXEMPTION FROM REQUIREMENT TO OBTAIN AN ACCESSION WORK CARD
You will be exempt from the requirement to obtain an accession worker card if:
- You already have leave to enter and your leave does not restrict you from taking employment ( eg if you have leave to remain as the spouse of a British person or if you are the dependant of a wok permit holder )
- You have been working here with permission continuously for 12 months ending on or after 31 December 2006 ( eg you were already here as a work permit holder or a s student and have been in part-time work continuously for 12 months )
- You are providing services in the UK on behalf of an employer established elsewhere in the EEA
- You are also a citizen of the UK or another EEA state
- You are the family member of an EEA national who is exercising Treaty rights here
- You are the spouse or civil partner of a British person or of someone settled here
- You are the family member of a Bulgarian or Romanian national who is self-employed , self-sufficient or a student. You remain exempt providing that your partner /sponsor remains a student , self-sufficient or self-employed
- You are the spouse, civil partner, descendant under 21 or the dependant of a Bulgarian or Romanian national who is subject to work authorisation and who holds an accession worker card
- You are a member of a diplomatic mission or the family member of anyone entitled to diplomatic immunity
HIGHLY SKILLED WORKERS
If you meet the highly skilled criteria you may also be exempt from worker authorisation BUT you will need to apply for a registration certificate
These include spouse, civil partner, children under 21 who are dependant, dependant direct relatives in the ascending line, eg parents, grandparents
IF you are a Bulgarian or Romanian family member of a Bulgarian or Romanian national who is exempt from work authorisation requirements you are entitled to be issued with a registration certificate confirming that you are also exempt from work authorisation requirements
If you are a Bulgarian or Romanian family member of a Bulgarian or Romanian national who has a WORK AUTHORISATION document and who is legally working ( unless it was issued to an “authorised family member” *) , you are exempt from work authorisation
AUTHORISED FAMILY MEMBER: If you are a Bulgarian or Romanian relative of a Bulgarian or Romanian who holds a work authorisation document and you are not within the criteria of family member , you will need permission to take employment and you will be “an authorised family member” who needs an accession worker card
If you are a Bulgarian or Romanian family member of an EEA national you will be exempt from work authorisation requirements and you can apply in your own right for a registration certificate confirming this
If you are a family member of a Bulgarian or Romanian national who is exempt from work authorisation requirements BUT you are not an EEA national, you are entitled to be issued with a residence card
If you are a family member of a Bulgarian or Romanian national who holds a work authorisation document BUT you are not an EEA national, you can apply for a family member residence stamp
APPLYING TO WORK IN THE UK
Accession Worker Card
First your employer must apply for a work permit unless your job is in the exempt categories set out above
If the UK Border Agency approves your employer’s application he will be sent a letter of approval and then you can apply for the accession worker card ( Form BR3 ) enclosing the letter of approval with the application
If offered a job before you come here you can apply for AWC from abroad
Authorised family members may also simply apply ( Form BR4 ) BUT you cannot obtain work authorisation as an authorised family member of a SAWS nor SBS work card holder
Family members of a Bulgarian or Romanian national who is in the UK and who is not exempt from work authorisation requirements will also be required to obtain an accession work card in order to take employment here. They use form BR4.
You can apply for this if you are self-employed, a student or a self-sufficient person or if you are exempt from worker registration you can apply for one as a worker or job seeker. Use form BR1. You must be in the UK to apply for this.
Highly Skilled People
To apply for a registration certificate in this category use form BR2. You must show that you satisfy certain requirements. See POINTS ASSESSMENT FOR HSPs and your application will be submitted to a different UK Border Agency caseworking team. SEE NON-EEA family members of Bulgarian and Romanian nationals
If you have a registration certificate and you have family members who are not EEA nationals, they can apply for a residence card using form BR5.
FAMILY MEMBER RESIDENCE STAMP
If you have an accession worker card and you have non EEA family members , they can apply for a family member residence stamp using form BR6
FAMILY MEMBER REGISTRATION CERTIFICATE
If you are a Bulgarian or Romanian family member of someone who holds an accession worker card , use form BR1 to obtain a family member registration certificate
If you are a Bulgarian or Romanian family member of an EEA national who is not Bulgarian or Romanian, you can apply for a registration certificate using form EEA1
Confused or need further advice: Please contact Ms Lesley Longhurst-Woods, Barrister-At-Law, who has been practising immigration law since 1992 and who is a specialist in this area. Please call 020 8985 8716 or 07957 959764 or email firstname.lastname@example.org or visit www.lesleylonghurstwoods.com