Bulgarians and Romanians: new rules on work for students and others

The UK government has made changes to the rules on when nationals of Bulgaria and Romania can work in the UK. From 16 March 2007 some of the restrictions imposed on Bulgarian and Romanian students will be lifted. Bulgarian and Romanian students will again be allowed, without the need for authorisation under the worker authorisation scheme, to: - work full-time during their vacations
- work full-time as part of their vocational studies,
- work full-time for four months after the completion of their studies.

The worker authorisation scheme imposed from 1 January 2007 had restricted students’ right to work, imposing a 20 hour-a-week limit even during vacations and throughout vocational studies and for the four months after completion of their studies, although students from outside the EU (European Union) are allowed to do such work.

One principle of European Community (EU) law is that the restrictions imposed on nationals of EU member States must be no less favourable than those imposed on people from outside the EU. Under the terms on which Bulgaria and Romania joined the EU, the restrictions placed upon their nationals after joining the EU cannot be harsher than those imposed before they joined the EU. Therefore, the new rules, which come into force on 16 March 2007, allow students to return to the less restrictive limit on working that applied before Bulgaria and Romania joined the EU on 1 January 2007.

Students who have been issued with a registration certificate before 16th March 2007 which sets out their right to work 20 hours a week can continue to rely on that certificate for the purpose of exercising their more extensive right to work as a result of the new rules. They do not need to get a new certificate.

The new regulations also clarify the rules for any Bulgarian or Romanian who has had, or has, a visa which imposes no restrictions on employment. Under the amended regulations, which come into force on 16 March 2007, people who had a visa imposing no restriction on employment on 31st December 2006, or have been given such a visa after that date, will not be required to register under the worker authorisation scheme. This means that, even if the visa which allowed them to work without restrictions later expires, Bulgarians and Romanians who have had leave with no restrictions on or after 31st December 2006 will no longer be subject to the worker authorisation scheme.

While it is rare that people have leave to be in the UK with no restrictions on employment and then find themselves subject to restrictions, it can happen, for example in cases where relationships break down or where absences of over two years result in the person losing their Indefinite Leave to Remain (ILR, or settlement) in the UK.

The worker authorisation scheme came in at the time when Bulgaria and Romania joined the European Union (EU) on 1 January 2007. The purpose of this scheme is to restrict access to the UK labour market by Bulgarian and Romanian nationals following those countries joining the EU. The scheme for Bulgarians and Romanians is not the same as the Workers Registration Scheme for nationals of the A8 States (the Czech Republic, Estonia, Hungary, Latvia, Lithuania, Poland, Slovakia and Slovenia) who joined the EU on 1 May 2004.

Bulgarians and Romanians who are in the UK, or following the change to the regulations, who have been in the UK, without restrictions on working (for example as a spouse/civil partner, because they are settled here, or as the family member of a worker) need no extra permission to work in the UK. If they wish, they can apply for a registration card like any other EU national. Bulgarians and Romanians in the UK with permission to work, but restrictions (for example on a work permit) can continue to work within those restrictions. If they have worked for a year by 1 January 2007 without a break of more than 30 days, they can apply for a registration card like any other EU national.

Highly skilled Romanians and Bulgarians can apply for permission to work under the equivalent of the Highly Skilled Migrants Programme (HSMP). Those applying under the HSMP must meet the same requirements as HSMP applicants, except that they need not show that they can speak English. Successful applicants will be able to get a registration card even if they do not yet have a job or job offer .

People who are not working already, and have never had leave to be in the UK without restrictions, for example people coming to the UK for the first time, need to obtain a worker registration card before starting work for a UK employer. There are opportunities to apply under the equivalent of the Work Permit scheme. This requires a specific job offer. It is also possible to make applications in equivalents of the existing immigration categories such as au pairs, Ministers of Religion, and Sole Representatives.

People who do not fit into these categories have very limited opportunities to work for a UK employer. These are limited to work as a seasonal agricultural worker or in the food-processing industry and only a limited number of places are available. Again, it is necessary to apply in advance for a worker registration card. People who complete one year’s working, on an existing work permit etc or under a worker registration document, without a break of more than 30 days, after 1 January 2007, will be able to apply for a registration card and will then be in the same position as other EU nationals in the UK.

Workers can be joined by their family members, although the Home Office imposes restrictions on family members entering the EU for the first time. Family members of people working under the scheme can also apply for permission to work, again, in the limited categories described above, and getting permission in advance.

It is an offence for an employer to employ a Bulgarian or Romanian national who needs a work authorisation document but does not possess one and an offence for a person who needs such a document to work without one. It is not be an offence to use the services of a Bulgarian and Romanian national who is self-employed but, as with tax legislation, employers and employees will need to be sure that the true nature of the relationship is one of a contract with a self-employed person and not an employer/employee relationship (a contract of service) under another name. The reality of the relationship, not what you call it, is what matters.

People who are in the UK as EU nationals acquire rights of permanent residence after five years. People who already have leave in a category that could lead to settlement and ultimately British Citizenship will need to consider carefully whether this route will be quicker than waiting to acquire rights of permanent residence under European law. Other Bulgarians and Romanians already working in the UK should identify when they will have completed one year’s work with no break of more than 30 days and thus when they will be eligible to apply for a registration card if they wish to do so.

Georgina Wilson, Gherson and Co.