More information on work restrictions for Bulgarian and Romanian nationals, and the effect of these on non-EU workers, especially in agriculture and food-processing

21 November 2006

Further information on the restrictions to be imposed on Bulgarian and Romanian nationals wanting to work for an employer in the UK from 1 January 2007 was released on 14 November 2006, together with information on how this will affect employers, and non-EU workers. There is still little detail; new legislation, new application forms and new guidance have not yet been published and thus it is not yet possible to make an application. The broad outlines of what will happen have, however, been supplied.

On 1 January 2007, Bulgaria and Romania become members of the European Union. Member States of the European Union can restrict Bulgarian and Romanian\'s access to the labour market. On 24 October 2006, the UK government indicated that it would be imposing restrictions, but did not give details.

The further details of given on 14 November will be of interest not only to Bulgarian and Romanian nationals, but also to non-European nationals and UK employers. This is because, under European Law, the UK cannot impose stricter restrictions on European Union nationals than it imposes on non-European Union nationals. When the UK restricts the access of Bulgarian and Romanian nationals to the UK labour market, it must ensure that it restricts the access of non-European nationals to at least the same extent.

The proposed 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.

After 1 January 2007, if you are a Romanian or Bulgarian national you will be able to move freely around the EU and to live in any Member State. You will have a right to live in the UK for three months and for longer if you stay as a student, in self-employment, or if you are not working but are self-sufficient and able to support yourself. However, if you want to work for a UK employer, matters will be more complicated.

In general, those who wish to work for a UK employer will have to obtain a worker accession card or a registration certificate (the term 'worker authorisation document' is also being used), before starting work. The government has not yet issued the rules on who can get such a document, and it will be necessary to look at the detail, but the general guidance the government has given is as follows:

- In general, the criteria for getting a work authorisation document will be similar to, or the same as, the criteria used in deciding whether to issue work permits to non-European Union nationals. The procedure will be similar: in most cases an employer will need to obtain a work-permit for the Bulgarian or Romanian national before that person can get a worker authorisation document. The government has said that in certain circumstances people will be able to apply for the document for a specific job without a work permit, but has not yet explained what these circumstances will be.
- Highly-skilled Romanian and Bulgarian workers and those married to a British Citizens will be able to obtain a registration certificate that will allow them to work for any employer. So will Romanians and Bulgarians who have worked legally for an employer in the UK for 12 months, for example people who are already in the UK with a work permit. "Highly-skilled"? is not a general description, but will relate to specific criteria.
- There will also be some work authorisation documents for lower-skilled workers coming to do seasonal agricultural work and to work in the food-processing sector for UK-based employers.
- Bulgarian and Romanian students will need to obtain a registration certificate confirming their status before starting work in the UK. When they get the document they will be able to work for up to 20 hours a week.
- Those who require a work authorisation document will commit a criminal offence if they work without one.
- As with the A8 nationals, after 12 months continuous legal work in the UK a worker from Bulgaria or Romania will have the same access to the UK labour market as any other EU national.

When the regulations, forms and guidance are published it will be necessary to check whether these make any changes to the general information that the government has issued.

The government has also said that it will restrict schemes for lower-skilled workers to work in the food and agricultural sectors to Romanian and Bulgarian nationals. It has not and working in these sectors.

It will be an offence for an employer to employ a Bulgarian or Romanian national who needs a work authorisation document but does not possess one. It will not be an offence to use the services of a Bulgarian and Romanian national who is self-employed but, as with tax legislation, employers will need to be sure that the true nature of the relationship is one of a contract with a self-employed person (a contract for services) 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.

No indication has been given of how long these arrangements will remain in place, although the government has said that it will review the scheme after one year.