BULGARIAN AND ROMANIAN ACCESSION AS PART OF THE GOVERNMENT’S

2 TRANSLATION FROM BULGARIAN LANGUAGE THE REPUBLIC OF BULGARIA
BULGARIAN AND ROMANIAN ACCESSION AS PART OF THE GOVERNMENT’S
BULGARIAN LEGAL PROTECTION FOR MEDIA TO THE ATTENTION OF

BULGARIAN SPORTS DEVELOPMENT ASSOCIATION EVS CALL SOFIA WE INFORM
BULGARIANSWISS RESEARCH PROGRAMME TEMPLATE FOR THE SCIENTIFIC REPORTS OF
БЪЛГАРСКИ ПОЩИ ЕАД BULGARIAN POSTS PLC УЛ “АКАДЕМИК СТЕФАН

Bulgarian and Romanian Accession

Bulgarian and Romanian Accession

As part of the Government’s aim to manage migration three steps were announced by the Home Secretary on 24 October 2006 to deal with the accession of Bulgaria and Romania to the European Union.^¹ The first is to spread best practice in local areas on how to deal with isolated and specific pressures that have arisen from migration. The second is to provide support for schools with limited experience of teaching new migrant pupils. The third is to control access by Romanian and Bulgarian citizens to the UK’s labour market. Accession will have a knock on effect for those from outside the EU. The Government expects employers to look exclusively to workers from the EU nations to meet any low-skilled labour shortages. From 1 January 2007, low-skilled migration schemes for workers from outside the EU will be phased out. As part of this phasing out, from 1 January 2007, the Seasonal Agricultural Workers Scheme and the Sector based scheme will be restricted to Romanian and Bulgarian applicants. The current cap of 19,750 places will be maintained.

The Accession (Immigration and Worker Authorisation) Regulations 2006

Draft regulations come into effect on 1 January 2007.^² It will be a criminal offence for a Romanian or Bulgarian to work in the UK, unless authorised to do so or exempted by the new rules. A Romanian and Bulgarian citizen is defined by the draft regulations as an “accession State national subject to worker authorisation”.^³ If a Romanian or Bulgarian is exempt from worker authorisation, the normal rules under The Immigration (European Economic Area) Regulations 2006 apply.^⁴

Who is not an accession State national subject to worker authorisation?

Romanians and Bulgarians are not caught by the new restrictions if^⁵:

They were legally working in the UK for 12 months, without interruption, up to and including 31 December 2006^⁶
They have legally worked for 12 months, without interruption, with some or all of that period being after 31 December 2006
They are spouses or civil partners of UK nationals or of a person settled in the UK
They are students and have a registration certificate which includes a statement that s/he has access to the labour market for 20 hours a week
They are family members of EEA citizens who have a right to reside. This does not include those Romanian and Bulgarian family members of someone who is either subject to worker authorisation or a student in point iv above. These family members come under the rules relating to “authorised” family members.
They have a right of permanent residence under Directive 2004/38/EEC or the 2006 EEA Regulations
They are posted workers
They have leave to enter or remain which is not subject to restrictions on their employment
They hold the nationality of another EEA state
They are highly skilled people with a registration certificate that provides for unconditional access to the UK’s labour market

Highly skilled people

To be a highly skilled Romanian or Bulgarian, the person must satisfy the criteria specified by the Secretary of State under paragraph 135A(i) of the Immigration Rules.^⁷ This means they must get enough points, which are awarded for qualifications, age, previous earnings and experience of the UK, to meet the threshold set by the Secretary of State. Romanians and Bulgarians are exempted from having to prove any English language proficiency.^⁸

The other route to highly skilled status is for those that apply within 12 months of being awarded a specific qualification in the UK.^⁹ The qualifications are an HND or degree issued by a Scottish institution or any master’s degree or doctorate issued in Great Britain. There does not appear to be recognition of degrees issued by English and Welsh institutions other than those with a second class honours degree or above who wish to participate in the Science and Engineering Graduates Scheme.

Someone accepted as a highly skilled person has the right to apply for a registration certificate.^¹⁰ The registration certificate will state that they have unconditional access to the UK’s labour market. To get the certificate they must show that they are highly skilled and are looking for work in the UK. Once they have that registration certificate, they have a right to reside and can claim jobseekers allowance^¹¹. They will, however, still have to satisfy the habitual residence test.

Students

Students have a right to reside under Article 7 of Directive 2004/38/EEC as long as they declare to the authorities that they have sufficient resources to avoid becoming a burden on the state and are covered by sickness insurance. Romanian and Bulgarian students in these circumstances would also have a right to reside and can get a registration certificate on that basis.^¹² However should they work, they would be committing a criminal offence.^¹³ Students can therefore get a registration certificate with permission to work for up to 20 hours a week.^¹⁴ Once they have this, they cease to be an accession state national subject to worker authorisation.

Self-employment and the self-sufficiency

Romanians and Bulgarians who are self-employed or self sufficient have a right to reside and can apply for registration certificates. The registration certificate in itself will be proof of their right to reside.^¹⁵

Authorised to work

Romanians and Bulgarians will have much more difficulty accessing employment than A8 nationals. A8 nationals merely need to be registered once they have found employment. Romanians and Bulgarians need to be authorised to work and there are three forms of worker authorisation;^¹⁶

pre-1 January 2007 leave to enter or remain that restricts employment to a particular employer or category of work
those with a seasonal agricultural work card
those who have an accession worker card

Accession worker card

There are two routes to getting an accession worker card. The first is that the employment applied for must fall within an authorised category of employment. There are 14 authorised categories of employment in Schedule 1 along with the requirements necessary to qualify for the particular category. The categories of employment mirror some of those found in the Immigration Rules, such as au pairs, ministers of religion, teachers, language assistants or midwives. Romanian and Bulgarians only have to satisfy the requirements in Schedule 1 not the immigration rules. If the application satisfies the criteria, the worker will get an accession worker card, which will have conditions attached to it limiting the authorisation to the type of work and the employer concerned. The card expires when they stop work for the specified employer.^¹⁷

The second route to an accession worker card is by virtue of being an “authorised family member”.^¹⁸ Authorised family members are not restricted to the employment listed in Schedule 1. Their application must be accompanied by a letter from the prospective employer and proof that they are an authorised family member.^¹⁹ If the Romanian or Bulgarian has either a student registration certificate permitting up to 20 hours work a week or a right to reside under Regulation 14(1) of the 2006 EEA Regulations, their family members are “authorised”.^²⁰ However, family members of Romanian and Bulgarian nationals who are authorised to work by virtue of being an au pair, a seasonal agricultural worker or under the Sector Based Scheme are not treated as authorised family members.^²¹

Those with a right to reside under Regulation 14(1) of the 2006 EEA Regulations include jobseekers, workers, students, the self-employed and the self-sufficient. However, the draft Regulations exclude jobseekers from being qualified people and a Romanian or Bulgarian who needs authorisation will only be treated as a worker if they have that authorisation.^²²

The effect of Regulation 3 is that family members of a person with a right to reside may be able to get authorisation to work even though the qualified person does not themselves have authorisation to work. For example, this would happen where a student who has not got a certificate permitting them to work but who otherwise has a right to reside under Article 7 of the Directive has a family member in the UK who wants to work.

These rules may also allow for a loophole. X is an authorised worker and as such has an accession worker card but is restricted to the type of work s/he can do and to the employer. Z, their partner, is an authorised family member and can do any work they like. Assume Z has been awarded an accession worker card as an authorised family member and is working in accordance with that card. Z has now become a worker and has a right to reside for the purpose of Regulation 14(1) of the 2006 EEA Regulations. It is arguable that X can now claim to be an authorised family member of Z and be released from the confines of the worker authorisation scheme in Schedule 1

Criminal implications

Under the 2004 Accession Regulations it is an offence for an employer to employ an A8 national subject to registration requirements without the employee registering.^²³ Similarly employment of a Bulgarian or Romanian without authorisation can lead to a summary fine for the employer up to level 5.^²⁴ As with A8 nationals any defence that before employment started the employee showed them an authorisation document will be defeated if a copy of the document was not taken and kept.^²⁵ The difference in the new regulations is that Romanian and Bulgarian employees who work without holding an authorisation document or work in breach of its conditions are themselves liable to a summary fine up to level 5 or up to 3 months imprisonment.^²⁶ An option to pay a fine of up to £1000 may be offered by a constable or immigration officer if they have reason to believe an offence has been committed.^²⁷ The person would have 21 days from the date of the notice to pay. During the 21 days criminal proceedings will be held in abeyance and if the fine is paid in that period s/he cannot be convicted.

Immigration implications

Removal directions against Bulgarians and Romanians or their family members cease to have effect after 1 January 2007.^²⁸ Decisions to deport shall be treated as EEA decisions and therefore have to be made either because the person has lost their right to reside or they will require justification on public policy, public security or public health grounds. Appeals against deportation decisions or appeals against decisions not to revoke a deportation order made before 1 January 2007 are treated as being made under the 2006 EEA Regulations rather than under the 1999 or 2002 Immigration Acts.

Accession by Romania and Bulgaria will mean that those asylum seekers currently supported by NASS or local authorities will be excluded from support unless they can show that ceasing support would breach their human rights or their European Community Treaty rights.^²⁹ This does not affect support for children. NASS wrote to those that it was supporting on 31 October 2006 to explain that their entitlement would cease.^³⁰ Subject to the asylum seekers representations, they will then be given 21 days notice of the ceasing of support. Local Authorities will doubtless be doing or have done the same. In the letter to Chief Executives, it is explained that support will not be necessary form most Romanians and Bulgarians as they have other options for support. The letter specifically refers to employment but given the restrictions on accessing employment this may be optimistic.

Welfare rights implications

If someone has a worker authorisation document and is working in accordance with the conditions of that document, they will be considered a worker. They will then be exempt from the habitual residence and right to reside tests and as such all in-work tax and social advantages will be available to them. As with A8 nationals, until the 12 months is completed, those subject to worker authorisation should avoid becoming ill or unemployed, as there is no welfare protection and a break of 30 days or more means starting the 12 month authorisation period all over again. Jobseekers allowance will not be available to Romanian and Bulgarian work seekers who are subject to worker authorisation but after 12 months of uninterrupted work, normal EEA rules will apply.^³¹

1 HC, Vol 450, 24 Oct 2006, Column 82WS (written ministerial statement)

2 The Accession (Immigration and Worker Authorisation) Regulations 2006, all references to regulations are references to the draft regulations unless otherwise stated

3 A8 nationals are referred to as “accession State workers requiring registration”, regulation 2 of The Accession (Immigration and Worker Registration) Regulations 2004 SI 2004 No 1219, as amended by SI 2004/1236, SI 2005/2400, SI 2006/1003, referred to hereinafter as the ‘2004 Regulations’

4 SI 2006 No 1003, referred to hereinafter as the ‘2006 EEA Regulations’

5 Regulation 2

6 without interruption means without a break of 30 or more days during the 12 months – Regulation 2(12)(c)

7 The IDI (Chapter 5, s.11 and Annex Z1-Z8) relating to this has been withdrawn from the Home Office website

8 Regulation 4(1)(a)

9 Regulation 4(1)(b)

10 Regulation 7(2)

11 JSA is only excluded for those Romanians and Bulgarians who are categorised as accession state nationals subject to worker authorisation which highly skilled people with a registration certificate are not – Regulation 6(2) & 2(9)

12 Regulation 7(1)

13 Regulation 13(1)

14 Regulation 7(6)

15 Regulation 2 of the 2006 EEA Regulations

16 Regulation 9(2)

17 Regulation 11(7)

18 Regulation 10(1)(b). Family is defined by reference to Regulation 7 of the 2006 EEA Regulations

19 Regulation 10(6)

20 Regulation 3

21 Regulation 3(a)

22 Regulation 6(2)

23 Regulation 9(1) of the 2004 Regulations

24 Regulation 12(1)

25 Regulation 12(4)

26 Regulation 13(1) & (2)

27 Regulation 13(3)

28 Regulation 8(1)

29 Schedule 3 Nationality, Immigration and Asylum Act 2002

30 Letter to Local Authority Chief Executives, 7 December 2006 from Paul Darling, Director of Asylum Resources Directorate.

31 Regulation 2(4)

FOREIGN EXCHANGE RATES OF THE BULGARIAN LEV AGAINST THE
HELMUT SCHALLER (PHILIPPS UNIVERSITY MARBURG) BULGARIAN AS A EUROPEAN
LAW FOR THE BULGARIAN CITIZENSHIP PROM SG 13618 NOV

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