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Bulgarian and Romanian nationals: restrictions on access to the labour market - overview
On 1 January 2007 Bulgaria and Romania became members of the EU and, by extension, the European Economic Area (EEA). Like other EEA nationals, Bulgarians and Romanians (termed by the UK Border Agency (UKBA) as A2 nationals) do not require leave to enter or remain in the UK. However, the terms of the Treaty of Accession of Bulgaria and Romania 2005 entitle each EU member state to regulate the access of A2 nationals to their domestic labour market for up to 7 years. This, in turn, is subject to a standstill clause, which provides that member states cannot impose additional labour market restrictions to those that were in place as at the date that the Treaty of Accession was signed (25 April 2005).
The UK chose to implement labour market restrictions but, as a result of the standstill clause, the relevant work authorisation requirements derive from the pre Points-Based System regime. The assessment of which A2 nationals are permitted to work and on what terms is therefore somewhat complex.
On 23 November 2011 the government announced that it would be extending the labour market restrictions until the end of 2013 (which is the end of the maximum 7-year period).
Worker authorisation scheme
A2 nationals' access to the labour market is governed by the Accession (Immigration and Worker Authorisation) Regulations 2006, SI 2006/3317 (the Authorisation Regulations 2006). These regulations define which A2 nationals are subject to work authorisation requirements, the documentation they must hold if they wish to work and the criteria to be applied in assessing applications. The Authorisation Regulations 2006 also prescribe penalties for both employers and employees who breach these requirements.
In common with other EEA nationals, all A2 nationals have a right of entry and initial residence in the UK for 3 months (save those who are the subject of a deportation order). Beyond that, those who are exercising a treaty right as a student, self-employed or self-sufficient person have an automatic right of residence.
However, those wishing to take up employment in the UK must first obtain an accession worker authorisation document, unless they are otherwise exempt.
Common exemptions include where a person:
has completed 12 months uninterrupted lawful work in the UK ending on, or at any time after, 31 December 2006
is the family member of an A2 national who is a student, self-employed or self-sufficient
is the spouse or civil partner of a British citizen
is the family member of a non-A2 EEA national
holds a Registration Certificate as a highly-skilled person - this is obtained by making an application to the UKBA under the criteria in force for the Highly Skilled Migrant Programme at the date of accession, or
holds a Registration Certificate confirming the exercise of treaty rights as a student - this enables them to work on the same conditions as existed for students on the date of accession.
If an exemption does not apply, a person will require to obtain either a Seasonal Agricultural Work Scheme (SAWS) card or an accession worker card (AWC) before they can commence employment. The SAWS provides short-term, low-skilled agricultural seasonal work and is managed by nine approved operators on behalf of the UKBA. The operators issue the work card to the A2 national, which is valid for a fixed period of up to 6 months.
For persons seeking to obtain employment that would fall within one of the categories that permitted work that was outside of the work permit scheme on the date of accession, this can be applied for immediately. For roles where a work permit was required, this will require the employer first applying to the UKBA for a letter of approval. Again, this application will be made on the basis of the relevant work permit criteria that existed as at the date of accession.
Her Majesty's Revenue & Customs will often give special scrutiny to applications submitted by Bulgarians and Romanians to register as self-employed, in particular as to whether the activities constitute disguised employment.
It is an offence for an employer to employ an A2 national who is required to hold an AWC and does not hold one or who is undertaking work other than that specified on the AWC (the maximum fine on conviction is £5,000 per worker). This is subject to a defence that before the employment began there was produced to the employer a document that appeared to them to be an accession worker authorisation document that authorised the worker to take up the employment.
Similarly, it is an offence for an A2 national to work without an AWC or in employment other than that specified on the AWC (subject to a term of imprisonment of up to 3 months or discharge of liability by payment of a fixed penalty of £1,000).
The rights of entry and residence of family members of A2 nationals who are self-employed, students or self-sufficient are exactly the same as for family members of any other EEA nationals. For family members of A2 workers who are subject to worker authorisation, it is more complicated and some anomalies exist.
Persons who fall within the categories of 'durable partner' and 'other family member' under EU law are expressly excluded from the definition of family member in the Authorisation Regulations 2006. This means, for example, that a third country national (TCN) unmarried partner of an A2 national subject to worker authorisation will not be able to accompany or join their A2 partner on this basis until the latter has completed 1 year of uninterrupted authorised work.
For family members who are A2 nationals themselves (and therefore can enter the UK and reside for up to 3 months) a narrower subset than the standard primary (ie non-extended) family members is defined. This is made up of the A2 worker's spouse or civil partner and child under 21 or otherwise dependent, and only these persons can work without restriction. The remaining categories of primary family members are categorised as authorised family members who must apply for authorisation from the UKBA before they can work, although all they must show is that they have an offer of a job by providing a letter from a prospective employer. In any case, this will affect only a limited number of persons.
TCN primary family members of an A2 national requiring worker authorisation have no restrictions on access to the labour market
A2 nationals and their family members are subject to the same conditions for acquiring permanent residence (PR) as for all other EEA nationals and their family members. For any periods spent as a worker, the relevant authorisation or exemption must be evidenced. The UKBA has previously taken the position that any time spent in the UK prior to the date of accession, either under the Immigration Rules or as a self-employed person under the Bulgarian and Romanian European Community Association Agreements would not count towards the acquisition of PR. This has been overruled by the European Court of Justice in the joined cases of Ziolkowski v Land Berlin Case C-424/10 and Szeja v Land Berlin Case C-425/10. The effect of the judgment is that lawful time spent in the UK immediately prior to accession can be counted towards the required period of 5 years' continuous legal residence, provided the person was carrying out activities that would constitute the exercise of treaty rights under Directive 2004/38/EC, art 7, ie they were working, self-employed, studying or self-sufficient.
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