Chapter7 Lege Home Office

CHAPTER 7 (June 2008) SECTION 1: ACCESSION STATE NATIONALS WHO JOINED IN MAY 2004 (A8 nationals) CONTENTS 1.INTRODUCTION…………………………………………………………………………...2 2. CYPRUS AND MALTA……………………………………………………………………2 2.2 Establishing Cypriot nationality………………………………………………………….2 3. A8 NATIONALS……………………………………………………………………………2 4. WORKER REGISTRATION SCHEME…………………………………………………..3 4.1 A8 nationals required to register…………………………………………………………3 4.2 Action to be taken with an application for a registration certificate from an A8 national required to register under the WRS………………………………………………..3

5. FAMILY MEMBERS………………………………………………………………………...4 5.1 Refusal of family member residence stamps………………………………………..4 5.2 Cancellation of family member residence stamps...………………………………...7 6. REGISTRATION CERTIFICATE…………………………………………………………..8 6.1 A8 nationals exempt from registration……………………………………………………8 6.2 A8 nationals who have completed employment under the WRS……………………...8 6.3 Refusing a registration certificate application from an A8 national……………………9 6.4 Family members of A8 nationals who qualify for registration certificates……………10 7. BENEFITS…………………………………………………………………………………..10 8. TRANSITIONAL ARRANGEMENTS…………………………………………………….11 9. PERMANENT RESIDENCE……………………………………………………………….11 ANNEX A INCORRECT APPLICATION LETTER (REQUIRES WRS)…………………12 ANNEX B INCORRECT APPLICATION LETTTER (INCOMPLETE WRS)……………13 ANNEX C GUIDANCE ON DEALING WITH REGISTRATION CERTIFICATE APPLICATIONA FROM A8 NATIONALS CLAIMING TO BE SELF EMPLOYED……………………………………………………………………………………14 ANNEX D FURTHER INFORMATION LETTER…………………………………………..17 ANNEX E LETTER ADVISING A8 NATIONAL TO REGISTER ON WRS BECAUSE THEY ARE NOT CONSIDERED GENUINELY EMPLOYED…………………………….18 ANNEX F LETTER ADVISING A8 NATIONAL THAT THEY ARE NOT ENTITLED TO PERMANENT RESIDENCE………………………………………………………………….19 Page 1 of 79

1.

Introduction

Key Points •

On 1 May 2004 Cyprus, the Czech Republic, Estonia, Hungary, Latvia, Lithuania, Malta, Poland, Slovakia and Slovenia became Member States of the European Union.

•

The Accession Treaty gave nationals from the ten new Member States the right to travel freely across the European Union allowing them to visit, live and study in any Member State. Nationals from all ten new Member States are able to pursue activities as selfemployed persons in any Member State and nationals from Malta and Cyprus are able to work in any Member State

Restrictions under the Accession Treaty •

Under the Accession Treaty, Member States were able to restrict access to the labour market for nationals of Czech Republic, Estonia, Hungary, Latvia, Lithuania, Poland, Slovakia and Slovenia (“A8 nationals”).

UK Worker Registration Scheme •

2.

The United Kingdom’s Accession (Immigration and Worker Registration) Regulations 2004 established a Worker Registration Scheme for nationals of the A8 Member States.

Cyprus and Malta

Nationals of Cyprus and Malta have the same rights as nationals of the Member States which were members of the European Union prior to 1 May 2004. They are able to take up work in the UK without registering and are eligible for registration certificates. Family members of nationals from Cyprus and Malta are entitled to the same rights as family members of nationals of the pre-enlargement Member States and can apply for residence cards/family permits. For further guidance on residence cards please refer to chapter 5 and for EEA family permits refer to chapter 3. 2.1

Establishing Cypriot Nationality

The Republic of Cyprus is a full member of the EU. But the country remains divided by the “Green Line” which separates the Turkish Republic of Northern Cyprus” from the rest of the Island. The Turkish Republic of Northern Cyprus (“TRNC”) is not recognised by the British Government and is not a Member State of the EU. The Republic of Cyprus is a Member State of the EU. A document issued by the TRNC does not establish that the person is an EU national. Only a document issued by the Republic of Cyprus stating that the holder is a national of the Republic of Cyprus establishes that a Cypriot is an EU national and therefore entitled to free movement rights within the EU. Note: “TRNC” passports are acceptable as proof of the holders identity but should not be endorsed with their rights of residence.

3.

A8 nationals

Nationals of A8 Member States who wish to exercise their treaty rights in the UK, have a right of residence here under the Immigration (European Economic Area) Regulations 2006 provided that they are: Page 2 of 79

• • • •

Self-employed Self-sufficient Students Self-employed persons who have ceased activity

They are eligible to apply for registration certificates and should be treated in the same way as nationals of the other Member States. Their family members are entitled to the same rights as family members of other EEA nationals and are eligible to apply for residence cards/EEA family permits. A8 national workers may be required to register in the UK with the Worker Registration Scheme.

4.

Worker Registration Scheme (WRS) • •

• •

The Worker Registration Scheme (WRS) was introduced on 1 May 2004, Under the Accession (Immigration and Worker Registration) Regulations 2004, unless exempt from the scheme (see Section 6.1), A8 nationals only have a right to reside in the UK as workers if they are registered and working in accordance with the scheme, A8 nationals do not have a right of residence as work seekers or as unemployed workers (although if they become involuntarily unemployed during the first month of work they will retain a right of residence for the remainder of the month), A8 nationals may, however, reside in the UK as self-sufficient persons while they are seeking work.

Note: Self-employed persons are not required to register. 4.1

A8 nationals required to register

Unless exempt from the scheme (see below), the following categories are required to register: • •

Those who started a new job on or after 1 May 2004, Those who had been working in the UK before 1 May 2004 without permission/in breach of their immigration conditions.

•

Those persons required to register should do so as soon as they start work, However, provided that they apply within one month of starting work, they will be considered as working legally for their employer, Failure to apply within one month will mean that, after the end of the month, that employer does not legally employ the person, Should an A8 national, who has not completed 12 months of uninterrupted legal employment in the UK, change employers, s/he will need to re-register with his/her new employer.

Key points

• •

4.2

Action to be taken with an application for a registration certificate from an A8 national required to register under the WRS

An A8 worker required to register under the WRS is not entitled to a registration certificate. A8 nationals who are required to register under the WRS and apply for a registration certificate should be informed that they are not entitled to a registration certificate and that they should Page 3 of 79

apply to register under the WRS. Their applications will be treated as withdrawn after 28 days unless they indicate, in writing, that they wish to continue with the application. An example of a letter informing them of the above can be found at Annex A of this chapter. Note: Should the applicant choose to continue with the application, s/he should be refused on the basis that s/he has not completed 12 months uninterrupted legal employment. Please see section 6.3.

5.

Family members of A8 nationals

A8 national family members of A8 nationals A8 national family members of A8 workers who are subject to the WRS are not eligible for registration certificates on the basis of being a family member of an EEA national. Those who intend to enter employment will need to register under the Worker Registration Scheme. Non-EEA national family members of A8 nationals Non-EEA family members of A8 workers can apply for a family member residence stamp confirming that they have a right of residence in the UK under the 2006 Regulations. Applications should be made on form FMRS. Note: non-EEA and EEA national family members of a person settled in the UK may also apply under the immigration rules. For full guidance please refer to chapter 8 of the IDIs. Wording of the family member residence stamp: "In accordance with the Immigration (European Economic Area) Regulations 2006 [name of non-EEA national*] has a right to reside in the United Kingdom as a family member of [name of EEA national*] who is working in the United Kingdom for an authorised employer in accordance with the Accession (Immigration and Worker Registration) Regulations 2004". 5.1

Refusal of family member residence stamps

A family member residence stamp may be refused on the grounds below: i.)

No evidence of relationship to an A8 national who is working in the UK in accordance with the Worker Registration Scheme

Where an applicant has failed to provide any evidence that they are related as claimed (e.g. marriage certificate, birth certificate), the application should be refused on that basis. A wording for the refusal notice can be found below. •

Wording: "You have applied for a family member residence stamp as confirmation of a right of residence as the family member of an Accession State national who is authorised to work in the UK under the Worker Registration Scheme. However, you have failed to produce [specify*] as evidence that your family member is an Accession State national. The application is therefore refused.”

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Right of appeal: The Immigration (European Economic Area) Regulations 2006 do not provide for a right of appeal. ii)

Applicant has failed to provide any evidence of his/her identity

(Please refer to guidance in Chapter 5 ) •

Wording: "You have applied for a family member residence stamp as confirmation of a right of residence as the family member of an Accession State national who is authorised to work in the UK under the Worker Registration Scheme. However, you have failed to produce [specify] as evidence that you are related as claimed to an EEA national. The application is therefore refused. “

iii)

Applicant not dependent upon A8 national who has registered under the Worker Registration Scheme

Where the applicant has failed to show that they are genuinely dependant upon the Accession State national who is working in the UK in accordance with the Worker Registration Scheme the application should be refused on that basis. This does not apply to spouses or children aged under 21. •

Wording: "You have applied for a family member residence stamp as confirmation of a right of residence in the United Kingdom as the family member of an Accession State national requiring registration who is authorised to work in the UK under the Accession State Worker Registration Scheme. But in view of [reasons] you have failed to demonstrate that you are genuinely dependant upon your family member or his/her spouse. The application is therefore refused.”

Right of appeal: The Immigration (European Economic Area) Regulations 2006 do not provide for a right of appeal iv.)

No evidence that family member is an A8 worker who is working in the UK in accordance with the Worker Registration Scheme (e.g. no worker registration card produced/ Accession state national changed employment but not renewed registration)

Where an applicant has failed to provide evidence that their family member is an A8 worker who is working in the UK in accordance with the Worker Registration Scheme the application should be refused on that basis. •

Wording "You have applied for a family member residence stamp as confirmation of a right of residence as the family member of an Accession State national who is working in the UK in accordance with the Worker Registration Scheme. But [your Accession state national family member is not employed by the employer specified on his/ her Worker Registration card]/ [you have failed to produce a valid Worker Registration card]. Therefore, you have failed to provide evidence that your family member is working in the Page 5 of 79

UK in accordance with the Accession (Immigration and Worker Registration) Regulations 2004. The application is therefore refused. “ Right of appeal: The Immigration (European Economic Area) Regulations 2006 do not provide for a right of appeal. v.)

Fraudulent documentation provided in relation to the A8 national’s legal employment

Where fraudulent documentation has been provided in relation to the A8 national’s legal employment (e.g. fraudulent Worker Registration Certificate) the application should be refused on that basis. A wording for the refusal notice can be found below. In this case caseworkers should refer to a Senior caseworker prior to making a decision. •

Wording "You have applied for a family member residence stamp as confirmation of a right of residence as the family member of an Accession State worker who is working in the UK in accordance with the Worker Registration Scheme. But you have provided fraudulent documentation, therefore you have failed to provide evidence that your family member is working in the UK in accordance with the Accession (Immigration and Worker Registration) Regulations 2004. The application is therefore refused. “

Right of appeal: The Immigration (European Economic Area) Regulations 2006 do not provide for a right of appeal vi.)

A8 national is not present in the UK or no evidence has been provided that the Accession state national is working in the UK

Where the A8 national who has registered in accordance with the Worker Registration Scheme is not working in the United Kingdom (or the applicant has failed to produce evidence to the contrary) the application should be refused on that basis. A wording for the refusal notice can be found below. •

Wording "You have applied for a family member residence stamp as confirmation of a right of residence as the family member of an Accession State worker who is working in the UK in accordance with the Worker Registration Scheme. But we are not satisfied that your family member is [*present in the United Kingdom] . The application is therefore refused.”

Right of appeal: The Immigration (European Economic Area) Regulations 2006 do not provide for a right of appeal 5.2

Cancellation of Family Member Residence Stamps

We may cancel, or refuse to renew, a family member residence stamp if the person concerned is no longer entitled to reside in the UK as the family member of an Accession State worker requiring registration. Such a person will cease to have a right to reside in the UK if: Page 6 of 79

•

Their removal is justified on grounds of public policy, public health, or public security (see Refusal of entry Chapter 8)

•

The person to whom the family member residence stamp was issued is not, or has ceased to be, the family member of an accession state national who is working in the UK in accordance with the Worker Registration Scheme.

OR

The Immigration (European Economic Area) Regulations 2006 do not provide for a right of appeal against the decision to cancel a family member residence stamp but the normal appeal rights will apply in relation to the decision to remove the family member of an EEA national. 5.2.1

Cancellation Wording "You were issued with a family member residence stamp as confirmation of a right of residence in the United Kingdom as the family member of an Accession State national who is working in the UK in accordance with the Worker Registration Scheme. However in light of [give reasons*] you have [ceased to be/have never been] the family member of an Accession state national who is working in the UK in accordance with the Worker Registration Scheme. This therefore cancels your family member residence stamp."

The Immigration (European Economic Area) Regulations 2006 do not provide for a right of appeal against the decision to cancel a family member residence stamp, but the normal appeal rights will apply in relation to the decision to remove the family member of an EEA national.

6.

Registration Certificates

A8 nationals who are exempt from registration and those who have completed 12 months uninterrupted legal employment in the UK (gaps totalling less than 30 days will not be deducted from this) can apply for a registration certificate. They must be treated like nationals of the preenlargement Member States. 6.1

A8 nationals exempt from registration

A8 workers are exempt from registration if any of the following apply: •

On 30 April 2004 the A8 national had valid leave giving unrestricted employment rights i.e. they had been granted leave to enter or remain in the UK under the Immigration Act 1971 on code 1 or 1A conditions.

•

The A8 national has undertaken 12 months of continuous legal employment, either; - entirely before but ending on 30 April 2004, or - starting before and finishing after 30 April 2004 or - wholly after 30 April 2004.

•

The A8 national is also a national of the UK, another EEA state (excluding other A8 states and Romania and Bulgaria who are subject to worker authorisation) or Switzerland

•

The A8 national is the family member of a Swiss national or an EEA national (excluding a national of the UK and a national of one of the A8 states, Romania or Bulgaria who is a worker). Family members of accession state national (A8 and Romania and Bulgaria) students, self-employed persons or self-sufficient persons are exempt for as long as they remain the family member of such a person. Page 7 of 79

•

The A8 national is the member of a diplomatic mission, the family member of such a person or a person otherwise entitled to diplomatic immunity.

•

The A8 national is a posted worker.

NB Work carried out prior to 1 May 2004 would be considered as legal and counting towards the 12 month qualifying time if the person had been granted leave and this leave permitted them to take employment in the UK. This would include people who were in the UK as students but would not include asylum seekers who had been granted permission to work pending a decision on their application or people who were in the UK under the ECAA Association agreements as self employed persons. 6.2

A8 nationals who have completed employment under the WRS

A8 nationals who have completed 12 months uninterrupted legal employment under the WRS are eligible for a Registration Certificate. On completion of their registered employment, A8 Nationals can apply for a confirmation of their status in the United Kingdom as they will have the same rights as the pre-enlargement Member States. They must be able to provide evidence of their EEA Nationality and evidence of 12 months’ uninterrupted employment which includes the worker registration card, registration certificates for each of the jobs they have undertaken, a letter from their current employer, and payslips covering the 12 month period. We must be satisfied that the applicants are still in employment unless regulation 6(2) of the 2006 Regulations applies. Please see Annex A of chapter 1 of the ECI’S. They should be refused a registration certificate if: • • •

they are no longer in employment having completed the required period of registration, regulation 6(2) does not apply, and/or they are not a qualified person (e.g. self-employment).

Please refer to chapter 4 for more information. Non-EEA national family members of A8 Nationals will be eligible for residence cards once the A8 National has completed the required period of legal employment under the WRS. Note: The WRS Card and all certificates registering changes in employment should be seen before a registration certificate can be issued. 6.3

Refusing a registration certificate application from an A8 national

An A8 worker who has registered under the WRS is not entitled to a registration certificate until they have completed 12 months uninterrupted legal employment. A8 nationals who have registered under the WRS who apply for a registration certificate before they have completed 12 months of employment should be informed that they are not entitled to a registration certificate and need to re-apply when they have completed 12 months of employment. They should also be told that their application will be treated as withdrawn after 28 days unless they indicate in writing, that they wish to continue with their application. An example of a letter informing them of the above can be found at Annex B.

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Note: Should the applicant choose to continue with the application, they should be refused on the basis that they have not completed 12 months uninterrupted legal employment. Applications for a registration certificate from A8 nationals who have not completed 12 months authorised employment under the WRS are to be refused. Refusal will usually be on the following grounds: i.)

No evidence that they have completed 12 months uninterrupted legal employment

Where an applicant has failed to provide evidence that they have completed 12 months uninterrupted legal employment (gaps totalling less than 30 days are not to be deducted from this) the application should be refused on that basis. Regulations 2(4) and 5(6) of the Accession (Immigration and Worker Registration) Regulations 2004 refer. •

Wording: "You have applied for a registration certificate as confirmation of a right to reside as an EEA national working in the UK under European Community law. However, as a worker from [country] you are not entitled to such a certificate if you {require registration/ have not completed 12 months uninterrupted legal employment} under the Worker Registration Scheme. You will not be required to register under the scheme after you have completed 12 months uninterrupted legal employment in the UK (gaps not exceeding 30 days in total over the 12 month period can be ignored). However you have failed to provide evidence that you have completed 12 months uninterrupted legal employment in the UK. The application is therefore refused.”

Right of appeal: Under Regulation 26 of the Immigration (European Economic Area) Regulations 2006 there is a right to appeal against the refusal to issue a registration certificate ii.)

Fraudulent documentation presented as evidence of 12 months uninterrupted legal employment (e.g. fraudulent Worker Registration Certificate)

Where an applicant has provided fraudulent documentation as evidence of the 12 months uninterrupted legal employment in the UK, the application should be refused on that basis. Cases should be referred to a SCW prior to making a decision. Regulations 2(4) and 5(6) of the Accession (Immigration and Worker Registration) Regulations 2004 refer. •

Wording: "You have applied for a registration certificate as confirmation of a right to reside as an EEA national working in the UK under European Community law. As a worker from [country] you are not entitled to such a certificate if you {require registration/ have not completed 12 months uninterrupted legal employment} under the Accession State Worker Registration Scheme. You will cease to require registration after you have completed 12 months uninterrupted legal employment in the UK (gaps not exceeding 30 days in total over the 12 month period can be ignored). However, the documentation that you have provided to show that you have completed 12 months employment is not authentic. The application is therefore refused.”

Right of appeal: Under Regulation 26 of the Immigration (European Economic Area) Regulations 2006 there is a right to appeal against the refusal to grant a registration certificate. Page 9 of 79

iii.)

No evidence or insufficient evidence of EEA nationality

Where refusal is on the basis that the applicant has failed to submit evidence of EEA nationality, please refer to chapter 5, section 1.8. 6.4

Family members of A8 Nationals who qualify for registration certificates

Family members of A8 nationals exempt from the WRS or those who have ceased to require registration under the WRS have the same rights as family members of nationals from the other Member States and are eligible for residence cards.

7.

Benefits

Those who are legally working in the United Kingdom may be entitled to certain benefits. However, it is important to remember that the Home Office does not decide whether an A8 national qualifies for benefits. We can only advise whether an A8 national has a right of residence. Work seekers not in possession of a Registration certificate are not entitled to benefits and must be self-sufficient until they enter into employment.

8.

Transitional Arrangements

All conditions attached to leave to enter/remain granted prior to 1 May 2004 ceased to have effect as of that date. Directions to remove made under paragraphs 8–10a of Schedule 2 to the 1971 Act or section 10 of the 1999 Act, prior to 1 May 2004, ceased to have effect as of that date. Appeals made by A10 nationals prior to 1 May 2004 under section 82(1) of the Nationality, Immigration and Asylum Act 2002 will be treated as abandoned if the A-10 national or their dependant obtains a Registration Certificate, Worker Registration Card, Residence Card or Family Member Residence Stamp. The applicant may also withdraw any outstanding applications when applying for a Registration Certificate, Worker Registration Card, Residence Card or Family Member Residence Stamp. A10 nationals with outstanding applications/appeals made prior to 1 May 2004 were given the opportunity to withdraw those applications/appeals by individual business areas.

9.

Permanent Residence

A8 Nationals and their family members are eligible for permanent residence once they have exercised their Treaty Rights in the United Kingdom for 5 years. The time spent in the United Kingdom prior to 1 May 2004 does not count towards the qualifying period for permanent residence. However time spent as a registered worker on the Workers Registration Scheme will count towards the qualifying period. If we receive a request for permanent residence the applicant should be informed that /she does not qualify for permanent residence and will only be entitled to a document certifying permanent residence when s/he has exercised Treaty Rights for 5 years in the United Kingdom. S/he should also be told that his/her application will be treated as withdrawn after 28 days unless s/he indicates in writing, that s/he wishes to continue with his/her application.

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A letter informing the applicant of the above can be found at Annex F of this chapter. NB: Employment prior to 1 May 2004 does not count towards the qualifying period. This would also include people in self-employment under the ECAA association agreement or those who were granted leave to enter or remain under the Immigration Rules in categories leading to settlement. Should the applicant choose to continue with the application, s/he should be refused on the basis that s/he has not exercised Treaty Rights for 5 years in the UK. Please refer to Chapter 6 for details on refusing permanent residence.

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ANNEX A: INCORRECT APPLICATION LETTER (Requires WRS) Dear You have applied for a Registration Certificate as confirmation of a right to reside in the UK as an EEA national working in the UK under European Community law. However as you are an Accession State national who requires registration under the Worker Registration Scheme you are not entitled to a registration certificate. The enclosed leaflet provides further information on the Worker Registration Scheme. Alternatively information is available on the website www.workingintheuk.gov.uk. Should you wish to continue with your application you should write to this office stating that you wish to continue with your application. Failure to do so, within 28 days of the date of this letter, will mean that we will treat your application as withdrawn. Yours sincerely [Caseworker]

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ANNEX B: INCORRECT APPLICATION LETTER (Incomplete WRS) Dear You have applied for a Registration Certificate as confirmation of a right to reside in the UK as an EEA national working in the UK under European Community law. However as you are an Accession State national who requires registration under the Worker Registration Scheme you are not entitled to a registration certificate until you have completed 12 months uninterrupted legal employment in the United Kingdom At present you have only provided evidence that you have completed ............... months of uninterrupted legal employment. You should submit evidence to confirm that you have completed 12 months uninterrupted legal employment, or else re-apply when you have completed a period of 12 months uninterrupted legal employment. Should you wish to continue with your application you should write to this office stating that you wish to continue with your application and provide any further evidence that you have completed 12 months of uninterrupted legal employment. Failure to do so, within 28 days of the date of this letter, will mean that we will treat your application as withdrawn.

Yours sincerely [Caseworker]

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ANNEX C: APPLICATIONS FOR REGISTRATION CERTIFICATE FROM A8 NATIONALS CLAIMING TO BE SELF-EMPLOYED Introduction This guidance is intended to assist caseworkers in distinguishing between applicants genuinely self- employed, and those where the applicant is in disguised employment and who is therefore required to register under the Workers Registration Scheme (WRS). This instruction applies to A8 NATIONALS only. Other EEA nationals are not affected by this instruction. This is because an EEA national who is not an A8 national may obtain a registration certificate on the basis of employment or self-employment. They can also undertake both activities at the same time. An A8 national can only obtain a registration certificate without going through the WRS if they are: • Self-employed • Self-sufficient persons • Students • Self-employed persons who have ceased activities 2. Criteria to be applied There is no statutory definition of self-employment, although previous decisions by the courts have established a number of criteria to distinguish between employment and self-employment. The kind of factors which need to be taken into account in deciding whether a particular engagement is one of employment or self-employment include: • the degree of financial risk involved; • the amount of control the worker has over what, when and how he/she does the work; • the way in which pay is determined - set fee or regular payment based on hourly/daily/weekly or monthly rates; • whether the worker is required to work at the premises of the person worked for; • Whether the worker provides the services personally or has the right to send someone else in his/her place. The common thread running through these indicators is that no single factor is conclusive; for each engagement the whole picture needs to be looked at in the light of all the facts. 2.1 Factors indicating self-employment: • A lack of control or supervision over work • Work being incidental to the business activities of the company receiving the services • The provision of one's own equipment • Terms of engagement for a limited period or a specific assignment • The ability to provide services to other companies simultaneously (or in sequence) • Being under no obligation to accept work offered • Having flexible work routines without fixed hours • Payment on a fee basis or on the basis of the amount of work completed • Lack of benefits such as sick pay and pension contributions • Being able to influence the profitability of the work and being responsible for management and investment decisions • Having contractual terms indicating self-employment • Being responsible for one's own liabilities and carrying appropriate insurance • Putting in capital and assuming financial risk Page 14 of 79

• • • •

Being able to sub-contract or use one's own employees to perform all or part of an assignment Having a personal business address, business stationery etc. Agreeing with the Inland Revenue to tax on Schedule D basis Being registered for VAT purposes

The applicant, or the person, who is engaging him/her, cannot simply choose that an engagement is one of self-employment. It will depend on the terms, conditions and facts of the relevant working engagement. The fact that someone has registered to pay tax and National Insurance contributions as a self-employed person with the Inland Revenue is not sufficient evidence that they are truly self employed, as the system is one of self assessment. If 'yes' can be answered to all of the following questions, it will usually mean an applicant is not self-employed. • • • • • •

Will the person have to do the work themselves? Can someone tell the person at any time what to do, where to carry out the work or when and how to do it? Will the person work a set amount of hours? Can someone move the person from task to task? Will the person be paid by the hour, week, or month? Can the person get overtime pay or bonus payment?

However any combination of some of these factors might also indicate employment. If 'yes' can be answered to all of the following questions, it will usually mean they are self-employed. • • • • • • •

Can the person hire someone to do the work for him/her or engage helpers at his/her own expense? Will the person risk his/her own money? Will the person provide the main items of equipment they need to do their job (not just small tools many employees provide for themselves)? Will the person agree to do the job for a fixed price regardless of how long the job may take? Will the person be able to decide what work to do, how and when to do the work and where to provide the services? Can the person regularly work for a number of different people? Will the person have to correct unsatisfactory work in their own time at their own expense?

Again, any combination of these factors might also indicate self-employment. Broadly, someone is self-employed if they can demonstrate that they are in business on their own account and bear the responsibility for the success or failure of that business. 2.2 Procedures for dealing with A8 nationals who have made an application on the basis of self employment Where an A8 national who has not yet registered under the WRS claims to be self-employed and has not provided sufficient documentation to assess whether they are employed or self employed this evidence should be requested using the attached letter. (See Annex D). Where the applicant has already provided information that allows this assessment to be made, the case should be progressed applying the criteria set out above. Page 15 of 79

Where it is clear that the applicant is employed rather than self- employed the applicant should be advised that we have considered the information provided and have concluded that they are employed, not self employed. In these cases the applicant is to be advised that they need to apply for a certificate under the WRS. Failure to register under the WRS within 30 days of starting employment means the person is not legally employed. If we do not advise the applicant why we consider them to be employed and do not consider them to be self-employed it may delay their registration under the WRS and thus delay their future qualification for a registration certificate. To avoid challenge on this point we should explain our decision in detail setting out why we do not consider the applicant to be self-employed. We should also tell the applicant to apply for registration under the WRS; and that if they wish to pursue their application for a registration certificate they should do so in writing within 28 days of the date of our letter. If they do not notify us of this intention the application should be treated as withdrawn and CID notified to that effect. (See Annex E) Only where the applicant indicates that they intend pursing the application should the application be formally refused. Where an applicant advises that they wish to pursue their application and we are satisfied that the applicant is employed rather than self- employed the application should be refused. The following wording should be used, and the right of appeal will be under Regulation 26 of the EEA Regulations 2006. " You have applied for a registration certificate under European Community law as an EEA national exercising rights in the UK as a self- employed person. On [insert date of letter to applicant explaining why he/she is considered not to be self employed] you were advised that you are not considered to be self-employed, but are an accession state national requiring registration under the Worker Registration Scheme. That letter enclosed a Workers Registration Application form and advised that your application for a registration certificate would be treated as withdrawn unless you indicated, in writing, that you wished to pursue the application. On…..you indicated that you wished to pursue your application for a registration certificate. For the reasons set out in his letter dated [insert date of letter to applicant explaining why he/she is considered not to be self-employed ] you are not considered to be selfemployed, and hence entitled to a registration certificate. Your application for a registration certificate is therefore refused"

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ANNEX D: FURTHER INFORMATION LETTER Thank you for your correspondence dated [xxxx] in which you have enquired about obtaining a registration certificate as confirmation that you are an EEA national exercising treaty rights in the United Kingdom as a self-employed person. If writing to a representative Thank you for your correspondence dated [xxxx] in which you have enquired about obtaining a residence permit for your client as confirmation that he/she is an EEA national exercising treaty rights in the United Kingdom as a self-employed person. To assist us in dealing with your correspondence you are/your client is asked to answer the questions below. This will enable us to establish whether or not you are employed or selfemployed. 1. Have you ever been assessed by the Inland Revenue for tax purposes? If yes please provide a copy of the assessment including the Inland Revenue reference number. 2. Do you have the final say in how the business is run? If your answer is no, who has the final say? 3. Do you risk your own money in the business? 4. Do you yourself have to do the work rather than hire someone else to do it for you? 5. Can someone tell you at any time what to do or when and how to do it? 6. Is National Insurance and tax deducted from your wages before you are paid? 7. Who pays your wages? Are your wages paid to your bank account or given to you in cash? 8. How are you paid? Is it by the hour, week, or month? Can you get overtime pay? 9. Do you work set hours, or a given number or hours a week or month? 10. Do you work at the premises of the person you work for, or at a place or places he/she decides? 11. Are you responsible for meeting the losses as well as taking the profits? 12. Do you provide the main items of equipment you need to do your job, not just the small tools many employees provide for themselves? 13. Are you free to hire other people on your own terms to do the work you have taken on? Do you pay them out of your own pocket? 14. Do you have to correct unsatisfactory work in your own time and at your own expense? Please provide this information within fourteen days of the date of this letter. Failure to provide the information requested will result in your correspondence being decided on the basis of the information available and may result in you being advised that you are not/ your client is not entitled to a registration certificate.

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ANNEX E: LETTER ADVISING A8 NATIONAL TO REGISTER ON THE WRS BECAUSE S/HE IS NOT CONSIDERED TO BE GENUINELY SELF-EMPLOYED Dear You have applied for a Registration Certificate as confirmation of a right to reside in the UK under European Community law as an EEA national working in the UK on a self- employed basis. From the information you have provided it appears that you are an Accession State national who requires registration under the Worker Registration Scheme. In reaching this decision we have noted the following [insert reasons for believing applicant is not self employed.] The enclosed leaflet provides further information on the Worker Registration Scheme. Alternatively information is available on the website. www.workingintheuk.gov.uk If you wish to continue with your application for a registration certificate you should advise this office in writing within 28 days of the date of this letter. Failure to advise this office that you wish to do so will mean that we will treat your application as withdrawn and take no further action. Yours sincerely [Caseworker]

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ANNEX F: LETTER ADVISING A8 NATIONAL THAT S/HE IS NOT ENTITLED TO PERMANENT RESIDENCE Dear You have applied for a document certifying permanent residence in the United Kingdom on the basis that you are an Accession State national who has been exercising Treaty Rights under European Community Law. Regulation 15 of the Immigration (EEA) Regulations makes provisions for acquiring the right to reside in the United Kingdom permanently for EEA nationals. An EEA national who has exercised Treaty Rights in the United Kingdom for a continuous period of 5 years may acquire permanent residence. We are unable to confirm your right of permanent residence in view of the fact that you are an Accession State national who has not exercised Treaty Rights for 5 years in the United Kingdom. The time you have spent in the United Kingdom prior to 1May 2004 does not count towards the five year qualifying period for permanent residence. You will be able to apply for a document certifying permanent residence once you have exercised Treaty Rights for 5 years in the United Kingdom. Should you wish to continue with your application you should write to this office stating that you wish to continue with your application. Failure to do so, within 28 days of the date of this letter, will mean that we will treat your application as withdrawn.

Yours sincerely Caseworker

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SECTION 2: ACCESSION STATE NATIONALS WHO JOINED IN MAY 2007 (A2 nationals) CONTENTS 1 INTRODUCTION ........................................................................................................22 1.1 Restrictions under the A2 Accession Treaty. ........................................................22 2 POLICY BACKGROUND ...........................................................................................22 2.1 Work Authorisation ...............................................................................................23 2.2 Exemption from the work authorisation requirement.............................................23 2.3 The self-employed and work authorisation ...........................................................25 2.4 Students and work authorisation............................. Error! Bookmark not defined. 2.5 Work authorisation and Accession Worker Cards.................................................25 2.6 Highly skilled workers ...........................................................................................27 2.7 Family members ...................................................................................................28 2.8 Application forms for A2 nationals ........................................................................30 3 ESTABLISHING A2 NATIONALITY ..........................................................................30 4 REGISTRATION CERTIFICATES FOR A2 NATIONALS..........................................31 4.1 A2 Nationals and the type of Registration Certificates they can obtain.................31 4.2 Registration Certificates and the criteria for their issue.........................................32 4.3 Persons exempt from work authorisation on the basis of existing leave or 12 months continuous working ........................................................................................33 4.4 Self-employed persons .........................................................................................34 Are they Employed or self-employed? ........................................................................34 4.5 Students ...............................................................................................................35 4.6 Self Sufficient Individuals ......................................................................................35 4.7 Spouses, Civil Partners or Unmarried Partners of Persons with a Permanent Right of Residence...............................................................................................................36 4.8. Highly Skilled: Qualifying Against Highly Skilled Migrant Programme Criteria .....37 4.9 The International Graduate Scheme.....................................................................37 4.10. Highly Skilled: Qualifications gained in Scotland ...............................................39 4.11 Applications for a Registration Certificate from an A2 National who requires an Accession Worker Card ..............................................................................................40 5 A2 NATIONALS AND THE ACCESSION WORKER CARD .....................................41 5.1 A2 nationals who require Accession Worker Cards ..............................................41 6 FAMILY MEMBERS OF A2 NATIONALS..................................................................42 7. APPEAL RIGHTS......................................................................................................45 7.1 Accession Worker Card Reviews..........................................................................45 8. APPLICATIONS AND APPEALS THAT ARE OUTSTANDING AT 1 JANUARY 2007...............................................................................................................................45 8.1 Outstanding Appeals ............................................................................................45 8.2 APPLICATIONS FOR EEA FAMILY PERMITS BY NON EEA FAMILY MEMBERS OF A2 NATIONALS ....................................................................................................49 9. COMPLIANCE AND ENFORCEMENT .....................................................................49 9.1 Revocation of Registration Certificates.................................................................49 9.2 Illegal Entry by A2 Nationals .................................................................................50 9.3 Decisions to Remove............................................................................................50 A2 Applications: Accession Worker Cards……………………………………………...52

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ANNEX A CHARITABLE ORGANISATIONS REGULARLY ENGAGING VOLUNTARY WORKERS …………………………………………………………………………………….72 ANNEX B RULES CHANGE…………………………………………………………………75 ANNEX C MEMBERS OF DIPLOMATIC MISSIONS....................................................79

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1 INTRODUCTION Bulgaria and Romania joined the European Union (EU) on 1 January 2007. Since that date their nationals have had the same free movement rights as existing European Economic Area (EEA) nationals throughout all the Member states of the EU. This means they are no longer subject to immigration control. When new countries join the EU, the existing Member states may regulate access to their labour markets for a maximum transitional period of seven years. (For the purpose of this document A2 refers to the nationals of Bulgaria and Romania. Registration Certificates confirming full access to the UK Labour Market will be referred to as “Blue” Registration Certificates and Registration Certificates confirming limited or no access to the UK Labour Market will be referred to as “Yellow” Registration Certificates). 1.1 Restrictions under the A2 Accession Treaty. The terms of the Bulgaria/Romania accession treaty entitle each Member state to control A2 national’s access to their domestic labour market. Accordingly A2 nationals seeking to work in the UK may require prior permission in the form of a work authorisation document before they can engage in employment in the UK. Although this provision is specific to these nationalities it is not a breach of the Race Relations Amendments Act being permitted by the accession treaty. 2 POLICY BACKGROUND Through the Accession Treaty derogation the United Kingdom is able to apply restrictions on Bulgarian and Romanian nationals’ access to the labour market. In practice, this means that the United Kingdom will continue to provide the same degree of access for skilled workers as it has done prior to Accession but will confine access for low skilled workers to existing low skilled migration schemes (the Seasonal Agricultural Workers Scheme and the Sectors Based Scheme). These arrangements are given effect by the Accession (Immigration and Worker 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 and consideration to be applied to the issuance of that documentation. They also prescribe penalties for working in breach of these requirements. Certain A2 nationals will be exempt from work authorisation requirements and therefore have free access to the labour market if they are exercising a Treaty Right as a worker or jobseeker. They will be able to apply for a Registration Certificate confirming this. Others may wish to seek a Registration Certificate confirming that they are exercising a Treaty Right other than as a worker. The legislative basis for the issuance of documentation to these groups of people is the Immigration (European Economic Area) Regulations 2006.

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Since 1st January 2007, Bulgarian and Romanian nationals have been able to move and reside freely in any EU Member State. They do not require leave to enter or remain to reside legally in the UK. They have a right of residence in the UK for the first 3 months of their stay. This initial right of residence is on an unrestricted basis. Bulgarian and Romanian nationals can remain legally resident in the UK as long as they wish, if exercising a Treaty Right as a student, a self employed person, or if not economically active and self-sufficient. However, they do not automatically have a right to reside in the UK if they wish to work in the United Kingdom. 2.1 Work Authorisation Since 1st January 2007, nationals of Bulgaria and Romania may continue to be required to obtain authorisation of their employment if they wish to work in the United Kingdom. To obtain such authorisation they will normally be required to obtain an Accession Worker Card [see Para 2.5]. Some categories of A2 nationals will be exempt from this requirement: 2.2 Exemption from the work authorisation requirement Bulgarian and Romanian nationals are exempt from work authorisation requirements if: •

they had leave to enter or remain under the Immigration Act 1971 on 31st December 2006 and that leave did not place any restrictions on taking employment in the United Kingdom or they have been issued with such leave after that date. They will have such leave if, for example, they have been given leave to remain under the Highly Skilled Migrant Programme, as the spouse of a British citizen or as the dependant of a work permit holder; or

•

they have been working with permission, and without interruption, in the United Kingdom for a period of 12 months ending on or after 31st December 2006. This may be the case if, for example, they are already present in the United Kingdom as a work permit holder or in some other category that confers permission to take employment (for example, if they are here as a student and have been in parttime employment continuously for 12 months); or

•

they are also a citizen of the United Kingdom, Switzerland, or another EEA state, other than Bulgaria or Romania; or

•

they are the family member of a non A2 EEA national exercising a Treaty Right in the United Kingdom, or the spouse, or civil partner of a British citizen or person with settlement in the United Kingdom.

•

they are the family member of a Bulgarian or Romanian who is exercising a Treaty Right as a student, self sufficient person or self employed person. They will remain exempt provided that their sponsor remains a student, self sufficient person or self employed.(See section 2.7)

Bulgarian and Romanian nationals may establish an exemption from the requirement to obtain work authorisation if they are highly skilled. They will need to demonstrate Page 23 of 79

that they meet certain criteria and obtain a Registration Certificate on this basis, i.e. this group is only exempt by virtue of having obtained a Registration Certificate on this basis. (See section 2.6) If Bulgarian or Romanian nationals are exempt from the requirement to obtain an Accession Worker Card, they will be able to take employment without restriction. They may (if they wish) apply for a Registration Certificate confirming that there are no restrictions on taking employment.

A2 Posted Workers and their exemption from worker authorisation A posted worker is only exempt to the extent that he or she remains a posted worker and it would therefore be inappropriate to issue such a person with a document conferring access to the labour market. If you receive an enquiry or application concerning the issue of a Registration Certificate to a person who appears to be a posted worker, refer this via your line manager to the Senior Caseworker. A posted worker is classified as such if: •

they are providing services in the United Kingdom on behalf of an employer established elsewhere in the European Economic Area (EEA)

•

they are being paid by an employer established elsewhere in the EEA

A2 Member of a Diplomatic Mission their exemption from worker authorisation A member of a diplomatic mission is only exempt to the extent that he or she remains a member of a diplomatic mission. If you receive an enquiry or application concerning the issue of a Registration Certificate to a person who appears to be a member of a diplomatic mission, refer this via your line manager to the Senior Caseworker. A member of a diplomatic mission is classified as such if: •

members of diplomatic missions refer to Annex D: Members of diplomatic missions, private servants and locally recruited staff

•

consular officers and employees. A consular officer is any person, including the head of a consular post, entrusted in that capacity with the exercise of consular functions; or employed in the administrative or technical service of a consular post. The person is only exempt if they are in the full-time service of the state concerned and not engaged in the United Kingdom in any private occupation for gain.

•

Heads of State under Section 20(3) of the State Immunity Act 1978, Heads of State, members of their families forming part of their household and their private servants enjoy total exemption from control unless otherwise directed by the Secretary of State. Page 24 of 79

2.3 The self-employed and work authorisation If working in a self-employed capacity, and exercising a Treaty Right on that basis, Bulgarian and Romanian nationals will not need to obtain authorisation for their selfemployed work (although they will need, if challenged, to demonstrate that they are genuinely self-employed). If they are exercising a Treaty Right as a self-employed person, it is open to them to apply for a Registration Certificate confirming this, but it is not a requirement that they do so. A Registration Certificate issued on this basis will not confer a right to take employment (as an employee). 2.4 Students and work authorisation If a Bulgarian or Romanian national is a student in the United Kingdom, they may engage in employment for up to 20 hours a week during term time and full time work during vacation periods from their course without obtaining an Accession Worker Card (if they are attending a course of vocational training they may also work as part of that training). They may also work for a period of up to four months after they have completed their course, provided they were issued with a valid Registration Certificate during their course of study. However, if they wish to work, they must first obtain a Registration Certificate confirming that they are exercising a Treaty Right as a student. If they wish to work for more than 20 hours a week during term time they will need to obtain an Accession Worker Card for this purpose, unless the work is part of their vocational training. Whilst a Bulgarian or Romanian national can apply for a Registration Certificate confirming their rights as a student at any time, the document cannot be issued until they have begun their course of study. For information on family members of Yellow Card holders (i.e. A2 nationals who are self employed/students/self sufficient refer to 2.7). 2.5 Work authorisation and Accession Worker Cards Bulgarian and Romanian Nationals wanting to work in the UK will need to obtain authorisation to work before starting any employment, unless they are exempt from doing so. This authorisation will normally take the form of an Accession Worker Card. For certain categories of employment, the Bulgarian or Romanian national will be able to apply to the Border and Immigration Agency for an Accession Worker Card without the need for an employer to apply for a work permit. These categories are: • • • • • •

airport-based operational ground staff of an overseas airline au pair placements domestic workers in a private household minister of religion, missionary or a member of a religious order overseas government employees postgraduate doctors, dentists and trainee general practitioners Page 25 of 79

• • • • •

private servants in a diplomatic household representatives of an overseas newspaper, news agency or broadcasting organisation sole representatives of overseas businesses teachers and language assistants on approved exchange schemes overseas qualified nurses undertaking supervised practice

Voluntary Workers To be able to issue a self sufficient Registration Certificate for voluntary work the applicant must be able to demonstrate that: • • • • • •

the activity is purely voluntary and does not involve taking up a salaried post or permanent position of any kind within the charitable organisation or entering into any arrangement that is likely to constitute a contract of employment; and the activity is either for a charitable organisation listed in ANNEX B or a registered charity or recognised body whose work meets the criteria set out in this instruction; and the activity is unpaid, or is not likely to be subject to payment of the National Minimum Wage and directed towards a worthy cause; and it is closely related to the aims of the organisation; and it is fieldwork involving direct assistance to those the charitable organisation has been established to help; and that there are satisfactory arrangements for his/her maintenance and accommodation in the United Kingdom

Accession worker card An Accession Worker Card will specify the employer and the occupation or category of employment for which it is issued. An Accession Worker Card will not be issued for a specified period of time but will cease to be valid if the employment for which it has been issued ends. A2 nationals will need to apply for a new Accession Worker Card if they change employers. If the employment does not fall into one of the categories above, an Accession Worker Card will only be issued if the employer has obtained approval of the employment through the existing Work Permit arrangements. This means that the employer will first need to obtain a letter of approval of the employment from the Border and Immigration Agency. Approvals under the work permit arrangements are generally only given for skilled jobs and where suitably qualified resident labour is unavailable to fill the vacancy. The work permit arrangements do, however, comprise the Sector Based Scheme under which a quota of permits may be issued for lower skilled jobs in the food processing industry. The letter of approval does not constitute an authorisation to work. If the employer does obtain a letter of approval from the Border and Immigration Agency, the A2 national Page 26 of 79

should then submit the letter along with valid identification, on a completed BR3 form as an application for an Accession Worker Card. Where work authorisation is considered to be already in place. A2 nationals subject to work authorisation will normally need to obtain an Accession Worker Card. However, they will not need to do so if: •

they are coming to the United Kingdom under the Seasonal Agricultural Workers Scheme (SAWS) and hold a work card issued by a SAWS operator, in which case the SAWS work card itself constitutes a work authorisation document; or

•

they were given leave to enter or remain in the United Kingdom before 1st January 2007 and their passport has been endorsed with a condition restricting their employment to a particular employer or category of employment (for example, if they are already in the United Kingdom as a Work Permit holder or au pair).

This second category may appear to overlap with the second exempt category in paragraph 2.2 above, however, for cases where the applicant has applied for an Accession Worker Card (AWC) but they already have valid Work Permit and LTR that has not yet expired we should not issue the AWC. The applicant still has valid leave so they don't need an AWC from us. We should advise the applicant by telephone to withdraw the application and (up to 3 months) before their leave expires, advise that their employer should submit a new application to the Border and Immigration Agency unless they would qualify for exemption at the end of their leave. If the Work Permit application is successful, they should then submit a BR3 for an AWC. If they qualify for exemption they should submit a BR1 application for a “Blue” Registration Certificate. For Work Permit letters of approval issued post January 2007, the Border and Immigration Agency cannot include an expiry date on the AWC. Even though a Work Permit letter of approval might say 'valid for 6 months' the Accession Worker Cards only expire if/when the applicant leaves the job. If the applicant stays with the same employer, they become exempt from worker authorisation after completing 12 months continuous, lawful employment. 2.6 Highly skilled workers We will issue a Registration Certificate confirming that the holder is not subject to any restriction on taking employment where we consider the applicant to be highly skilled. To qualify as highly skilled, the applicant must either: •

score sufficiently under the points-based system established for the purpose of the Highly Skilled Migrants Programme. Bulgarian and Romanian nationals will not be required to satisfy the proficiency in English language requirements of this Programme; or

•

meet the criteria for the approval of leave to remain under the existing International Graduate Scheme (this replaced the Science and Engineering Graduate’s Scheme from 7th May 2007). To qualify under IGS an applicant must Page 27 of 79

have a degree (including a masters and Phd), postgraduate certificate or postgraduate diploma awarded in the UK, and apply for a registration certificate within 12 months of being awarded the qualification; or •

meet the requirements of the Scottish Graduates Scheme. To qualify for this an applicant must have a HND qualification awarded by a relevant institution in Scotland

2.7 Family members A Bulgarian or Romanian (A2) family member of another A2 national who may already hold a Blue registration certificate indicating they have free access to the labour market can also be issued with a Blue registration certificate. Applications for such a document should be submitted on form BR1. This process also applies if the A2 national is the family member of an A2 national who is self employed, self sufficient or a student. (See family members of ‘Yellow’ registration certificates below). Those A2 nationals who require permission to work in the United Kingdom need to obtain a Work Authorisation document (purple card) before they start a job. Where a person is an A2 national, and is the family member of a person holding a purple card they too are required to obtain a purple card in order to take employment in the United Kingdom. In such a case the criteria for the issue of such a document to a dependant will not be subject to a skills test or test concerning the availability of resident labour (except if the purple card issued to an authorised family member or the holder of the purple card is an au pair, seasonal agricultural worker or SBS worker). Applications on this basis should be submitted on form BR4 For family members of a national of an EEA Member State, other than Bulgaria and Romania, who is already exercising a Treaty Right in the United Kingdom, the most appropriate course may be for them to apply as the family member of a person exercising a Treaty Right. The application should be submitted on form EEA1. Family members of “Yellow” Registration Certificate holders A2 family members of A2 students, self employed or self sufficient persons will be entitled to obtain a “Blue” registration certificate. This will confirm that they have full access to the labour market as long as they remain the family member of the “Yellow” registration certificate holder and the “Yellow” registration certificate holder continues to be a student, self-employed or self-sufficient individual. A2 family members who are exempt on this basis will only remain exempt, provided their sponsor continues to exercise their Treaty Rights as a self employed person, self sufficient person or student. Only after an A2 family member remains exempt in this way and has worked lawfully for 12 months will they acquire exemption from work authorisation permanently in their own right. Page 28 of 79

It is essential that the dependant “Blue” registration certificate holder has evidence of 12 months continuous lawful employment – and thus has become exempt in his/her own right - before we consider any dependency on them. This will ensure that we prevent students, self employed or self sufficient persons from obtaining a “Blue” registration certificate before the qualifying period for exemption is completed. Extended Family Members The meaning of ‘Extended Family Member’: • •

more distant family members of the EEA national or of his spouse/civil partner who can demonstrate that they are dependant partners where there is no civil partnership but they can show that they are in a ‘durable relationship’ with the EEA national.

The following may be questions that you might wish to ask the applicant to establish whether they are dependants or not: • • • • • •

Where did you live in Bulgaria/Romania? Who did you live with? When did you travel to the UK? Who did you travel with? Who do you live with in the UK? Who are you financially dependant on?

Examples of how an applicant would qualify as an extended family member •

they were residing in the same EEA state as the sponsor, where they were dependant on the sponsor or a member of the sponsor’s household, before the sponsor came to the UK; and

•

they have joined the sponsor in the UK, travelling with other direct family members (such as a wife) and continue to be dependant on the sponsor or a member of their household.

•

they relocated to the UK as a single family unit.

•

if the family member were very elderly or incapacitated. In assessing such cases, it would be important to consider whether there were any relatives to care for him/her in his/her home country.

Note: there is no specific dependency test, but for persons who can show that they have lived under the same roof as the sponsor before coming to the UK and continue to live under the same roof in the UK, this is satisfactory evidence to support their application. The Directive (2004/38/EC) refers to facilitating or favouring the admission of any member of the family who meets any of the above conditions. Providing that a person falls within one of these categories, the caseworker may issue a Registration Certificate if in all the circumstances it appears appropriate to do so.

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Circumstances where we would NOT automatically consider an applicant an extended family member: •

Cases where the Aunt/Sibling/child have chosen to move to the UK to be with their relative who has been residing in the UK for numerous years;

•

Evidence of money transfer alone would not constitute dependency.

•

Son/daughter over 21 years of age who comes to the UK for the purposes of seeking employment.

If you receive an enquiry or application concerning the issue of a person who appears to be an extended family member refer this to your line manager. 2.8 Application forms for A2 nationals The following application forms have been designed to deal with applications from A2 nationals. BR1 - Application for a Registration Certificate for self-employed, student, self-sufficient, spouse, civil partner or unmarried partner of a UK national or a person settled in the UK and those persons exempt from the requirement to obtain an Accession Worker Card BR2 - Application for a Registration Certificate for highly skilled individuals BR3 - Application for an Accession Worker Card (Main Applicant) BR4 – Application for an Accession Worker Card (Authorised Family Member) BR5 - Application for a Residence Card for non-EEA dependants BR6 - Application for a Family Member Residence Stamp for non-EEA dependants BR7- Application by an A2 national who is the family member of an A8 national subject to the Worker Registration Scheme. Whilst applicants should be invited to make applications using the forms above we cannot reject or refuse to consider an application made by other means that clearly indicate that the applicant is an A2 national or the family member of an A2 national seeking confirmation of their right to reside. 3 ESTABLISHING A2 NATIONALITY In order to be accepted as an A2 national the applicant must provide in original form either a national passport or a national identity card. In addition to national, diplomatic and service passports and full national ID cards, Bulgaria and Romania issue a number of other documents that may be presented as evidence of nationality. The attached table is a guide to whether the document is acceptable as evidence of nationality and is valid for travel to the UK (see table): Nationality

Document

Acceptable evidence of Page 30 of 79

Valid for travel to the UK

nationality BULGARIA Temporary Travel Document Travel document of Subsidiary protection beneficiary Temporary passport of Foreigner for return to Bulgaria. Official Border crossing permit Temporary passport for return to Bulgaria Foreigner ID card Refugee ID card Driving Licence

No

Yes

No

Yes

No

Yes

No

No

Yes

No

No No No

No No No

Yes No No

No No Yes

No

Yes

ROMANIA Provisory National ID card Foreigner ID card Stateless Person’s Passport Travel Document Conditioned Humanitarian protection

It is essential that all identification supplied as proof of nationality for an A2 national is valid if used in support of an application for a Registration Certificate or an Accession Worker Card.

4 REGISTRATION CERTIFICATES FOR A2 NATIONALS 4.1 A2 Nationals and the type of Registration Certificates they can obtain A2 nationals who are exempt from the work authorisation requirement, may apply for a “Blue” Registration Certificate and should be treated the same as any other EEA national. “Blue” Registration Certificates These certificates indicate that the holder has full access to the domestic labour market. This group includes Highly Skilled Migrants and those persons exempt from the requirement to obtain an Accession Worker Card. Family members of students, self employed or self sufficient persons will be entitled to obtain a “Blue” Registration Certificate. This will confirm that they are entitled to full access to the labour market as long as they remain a Family Member of the “Yellow” Registration Certificate holder and the “Yellow” Registration Certificate holder continues to exercise a Treaty Right as a self employed individual, self sufficient individual or a student. Bulgarian and Romanian family members who are exempt on this basis will only remain exempt, provided their sponsor continues to exercise their Treaty Rights as a self employed person, self sufficient person or student. Only after a Bulgarian or Romanian Page 31 of 79

family member remains exempt in this way and has worked lawfully for 12 months will they acquire exemption from work authorisation permanently in their own right. “Yellow” Registration Certificates These certificates are issued to those Bulgarian and Romanian nationals exercising Treaty Rights as self employed persons, self sufficient persons or students. These certificates confirm that the holder has limited or no access to the labour market. They will state the manner in which the holder is exercising a Treaty Right in one of the three ways described above. “Yellow” Registration Certificate holders that have a family member with a Dependant Exempt (Non-Exempt Family Member) linked to their status, will not be able to apply as a dependant of the Blue Registration Certificate holder until that person has completed 12 months continual lawful employment. After 12 months lawful employment has been completed they will then be exempt from worker authorisation and may apply for a “Blue” Registration Certificate as a family member of a person exempt from Worker Authorisation.

4.2 Registration Certificates and the criteria for their issue. 4.2.1 Generic considerations Caseworkers considering any applications for Registration Certificates must satisfy themselves that the applicant has provided: •

Evidence of A2 nationality, i.e. a valid passport or national identity card

•

Evidence that they are a qualified person, or they are a family member of a qualified person. Further guidance on determining whether an applicant is exercising a Treaty Right is set out in paragraphs 4.3 to 4.10 below.

•

Two passport sized photos of the A2 national. One is featured on the Registration Certificate and the other retained in the case record. If an A2 national qualifies for the issuing of a Registration Certificate but no photographs have been supplied then the caseworker must request the submission of photographs.

If the application includes dependent children who are also A2 nationals, each child is entitled to be issued with a Registration Certificate. If a child does not have his/her own passport or ID card, but is featured on his/her A2 national parents’ or guardians’ passport, this is proof that the child is also an A2 national. Photographs of any A2 national children included in the application are also required. 4.2.2 Refusal Formulae If the application falls for refusal, use letter ICD 1100 PLEASE NOTE: The following wordings are examples - they do not constitute an exhaustive list of all possible formulae. Page 32 of 79

"You have applied for a Registration Certificate as confirmation of a right of residence in the United Kingdom as a [stated category]. Your application has been refused for the following reasons:" Evidence of A2 nationality is not supplied “You have failed to produce a valid identity card or a valid passport issued by the national authorities of [Bulgaria/Romania].” 4.3 Persons exempt from work authorisation on the basis of existing leave or 12 months continuous working 4.3.1 Criteria Caseworkers considering such applications must satisfy themselves that: •

The applicant has provided a travel document or details of previous applications to Border and Immigration Agency, which establish the applicant has leave to enter or remain in the UK and that leave is not subject to any condition restricting employment, or has been legally working in the UK without interruption for a period of 12 months ending on or after 31st December 2006.

•

If the applicant has not provided a passport endorsed with such leave, the details of previous applications have been verified with the relevant caseworking team/on the relevant IT database;

•

If the application is on the basis of 12 months employment, evidence has been provided that this employment has been continuous in the form of bank statements, wage slips or employers letters. Employment is to be considered to be continuous if the applicant was legally working at the beginning and end of that period and any intervening period in which the applicant was not legally working did not exceed 30 days.

•

If the application is on the basis of 12 months self-employment, the applicant does not qualify as exempt. Working in a self-employed capacity does not constitute working for the purposes of the exemption from work authorisation. If the applicant has engaged in un-registered work, other than in a self-employed capacity, during the duration of this leave, it would have been in breach of the conditions attached to their stay. Consequently the applicant is not exempt from work authorisation and their application for a Registration Certificate confirming their free access to the labour market should be refused.

4.3.2 Refusal Formulae If the application falls for refusal, use letter ICD 3343: A2 Refusal – Current Leave to Enter or Remain.

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4.4 Self-employed persons A "self-employed person" is someone who has established her/himself in the UK in order to pursue activity as a self-employed person. 4.4.1 Criteria Caseworkers considering such applications must satisfy themselves that the applicant has provided sufficient evidence to show they are self-employed: • • • • •

Invoices showing payment for services. Contracts to provide services Evidence from HMRC of National Insurance special reference number Evidence from HMRC of registration for tax Evidence from HMRC of National Insurance contributions

In addition as many of the following pieces of evidence as possible: • Original Bank statements • Proof of National Insurance registration • Evidence of tax payment under the Construction Industry Scheme (if appropriate) • Details of their business premises • Client lists • Details of how they advertise their business • Letters of recommendation from clients Are they Employed or self-employed? This is not an exhaustive list, but, as a general guide as to whether a worker is an employee or self-employed; if they answer ‘Yes’ to all of the following questions, then they are probably an employee:

• • •

Do they have to do the work themselves? Can someone tell them at any time what to do, where to carry out the work or when and how to do it? Can they work a set amount of hours? Can someone move them from task to task? Are they paid by the hour, week, or month?

•

Can they get overtime pay or bonus payment?

• •

If the answer is 'Yes' to all of the following questions, it will usually mean that the worker is self-employed: • •

Can they hire someone to do the work or engage helpers at their own expense? Do they provide the main items of equipment they need to do their job, not just the small tools that many employees provide for themselves? Page 34 of 79

• • • •

Do they agree to do a job for a fixed price regardless of how long the job may take? Can they decide what work to do, how and when to do the work and where to provide the services? Do they regularly work for a number of different people? Do they have to correct unsatisfactory work in their own time and at their own expense?

Further information about self employment can be found on the HMRC website: http://www.hmrc.gov.uk/employment-status/index.htm

4.4.2 Refusal Formulae If the application is to be refused, use letter ICD 3339: A2 Refusal – Self Employed. 4.5 Students A "student" is a person who is enrolled at a private or public educational establishment for the purposes of following a course of study, including vocational training. 4.5.1 Criteria Caseworkers considering such applications must satisfy themselves that: •

the applicant has provided a letter confirming enrolment on a course of study provided by an organisation which is included on the Register of Education and Training Providers: http://www.dfes.gov.uk/providersregister/index.cfm and

•

the applicant has provided evidence of funds available to him/her, such as a bank statement or a document confirming the receipt of a grant or scholarship. There is no set amount of money that is required by an A2 national, applications should be assessed on a case-by-case basis and should take into account such factors as income versus. outgoings.

•

the applicant has provided evidence that a course of study has commenced

4.5.2 Refusal Formulae If the application is to be refused, use letter ICD 3352: A2 Refusal – Students.

4.6 Self Sufficient Individuals A "self-sufficient person" is someone who has:

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•

Sufficient resources not to become a burden on the social assistance system of the United Kingdom; and

•

Comprehensive sickness insurance cover in the United Kingdom.

•

A retired person would qualify as self-sufficient if they can demonstrate that they are in receipt of a pension and/or have sufficient funds (or income from investments) not to become a burden on the social assistance system of the UK.

We cannot apply a set amount of money that is required by an A2 national in order to be considered self-sufficient. Applications should be assessed on a case-by-case basis and should take into account such factors as income versus outgoings. An A2 national will also qualify on the basis of self-sufficiency if his/her spouse, civil partner, or partner is able to support him/her financially through his/her legal employment/self-employment. Similarly an A2 national will qualify on the basis of selfsufficiency if their spouse, civil partner, or partner has sufficient financial resources to support them both, without the need to undertake employment or self-employment.

4.6.1 Criteria Caseworkers considering such applications must satisfy themselves that the applicant has provided evidence of funds which shows they are economically self-sufficient – e.g. – a bank statement. If these funds come from a family member, the applicant must provide evidence of the family member’s lawful employment or funds. If the applicant is retired, they must provide evidence to confirm this – e.g. – document(s) confirming the receipt of a pension. Documentary evidence of comprehensive sickness insurance cover in the United Kingdom is also required. 4.6.2 Refusal Formulae If the application is to be refused, use letter ICD 3349: A2 Refusal – Self Sufficient. 4.7 Spouses or Civil Partners of a UK national or a person settled in the UK 4.7.1 Criteria Caseworkers considering such applications must satisfy themselves that: •

the applicant has provided their partner’s current original passport demonstrating that they are a British citizen or a person with settlement in the United Kingdom; or

•

if the applicant’s partner is a British Citizen without a passport, the applicant has provided their partner’s full birth certificate (showing the parents’ names) accompanied by at least one other formal document as evidence of ordinary residence in the UK for the last three years – e.g. – notice of income tax coding, driving license, building society passbook/bank statements, National Insurance or Page 36 of 79

National Health Service registration issued by the Department for Work & Pensions, or a local health authority; and •

the applicant has provided their original civil marriage certificate or civil partnership certificate.

•

If either the applicant or his/her partner have been married or in a civil partnership before, the applicant has provided document(s) showing they were free to marry/form a civil partnership with their present spouse/partner. The document(s) must be formal documents such as a decree absolute or a final dissolution order (or other confirmation of the legal dissolution of the relationship) or a death certificate.

•

the marriage/civil partnership is not one of convenience. For further information on what constitutes a marriage of convenience see Chapter 5, section 8, Annex A of the European Caseworking Instructions (ECI’s.)

4.7.2 Refusal Formulae If the letter is to be refused, use letter ICD 3351: A2 Refusal – Spouse or Civil Partner. 4.8. Highly Skilled: Qualifying against Highly Skilled Migrant Programme (HSMP) criteria 4.8.1 Criteria A2 nationals will be assessed against the current HSMP criteria, but are not required to pass the English language requirement. If the application has been refused, the HSMP team will complete a pro-forma with details of all the refusal reasons. A2 caseworkers will need to ensure that all refusal reasons are included in the refusal letter. 4.8.2 Refusal Formulae If the application is to be refused, use letter ICD 3347: A2 Refusal – Highly Skilled. 4.9 The International Graduate Scheme On 1st May 2007, the Science and Engineering Graduate Scheme were replaced by the International Graduates Scheme (IGS). Under the International Graduates Scheme, applicants who successfully complete either a recognised UK Bachelor's degree, Master's degree, PhD or equivalent or postgraduate certificate or postgraduate diploma in any subject are eligible to apply for exemption from work authorisation under the International Graduates Scheme. The requirement for a minimum 2:2 classification for undergraduate degrees has been removed. Applicants who have obtained a postgraduate certificate or postgraduate diploma are also eligible to apply under the International Graduates Scheme. Page 37 of 79

4.9.1 Criteria In order to qualify as an International Graduates Scheme participant, applicants must have successfully obtained a UK Bachelor's degree, Master's degree, PhD or equivalent, or postgraduate certificate or postgraduate diploma in any subject providing that they apply within 12 months of gaining their qualification. Applicants with postgraduate certificates and postgraduate diplomas, such as Postgraduate Certificates of Education (PGCEs) are now eligible to apply for exemption from work authorisation under the International Graduates Scheme. Other qualifications, including HNDs (Higher National Diplomas) or HNC (Higher National Certificates) will not make an applicant eligible for the International Graduates Scheme, nor will honorary degrees or Foundation Degrees. Normally an applicant must submit an original genuine certificate confirming that they have been awarded the relevant qualification. However, where the applicant wishes to apply prior to receiving their certificate, they may instead include a letter from their personal tutor or another relevant official at the awarding institution. This must be an original letter (not a photocopy), bear the official stamp of the institution, and confirm that the applicant has successfully completed a relevant course. In all cases the applicant should provide the contact details of their personal tutor, so that this academic record can be verified as necessary.

4.9.2 Criteria Recognised Qualifications Applicants applying for the International Graduates Scheme must have been awarded a qualification from a UK education institution which is a recognised or listed body. A relevant institution is an institution financed from public funds or included on the Register of Education and Training Providers on 1st January 2007. •

Further information on both recognised bodies and listed bodies can be found on the Register of Education and Training Providers website at: http://www.dfes.gov.uk/recognisedukdegrees/

•

The list of recognised bodies is available here: http://www.dfes.gov.uk/recognisedukdegrees/index.cfm?fuseaction=institutes.list &InstituteCategoryID=1

•

Details of the listed bodies are available here: http://www.dfes.gov.uk/recognisedukdegrees/index.cfm?fuseaction=institutes.list &InstituteCategoryID=2

Date of Results Received This is not the date of the graduation ceremony, as many graduation ceremonies take place some time after the course finishes – the date of the graduation ceremony is irrelevant for applications for IGS. The date the student received their results should be taken as: Page 38 of 79

•

the date the institution formally confirmed in writing that the applicant had successfully completed the course. The applicant should provide the letter sent to them by their institution. If this letter is not an official letter, an original (not a photocopy) and including the letterhead and stamp of the institution, then it must be accompanied by a letter from the applicant's personal tutor or another relevant official at their awarding institution. This must be an original letter (not a photocopy), bear the official stamp of the institution, and confirm that the applicant was informed of their results at the time the letter from the institution was sent.

•

alternatively, the applicant can provide a letter from their personal tutor or another relevant official at the awarding institution confirming the date that the institution informed them that they had successfully completed the course. This must be an original letter (not a photocopy), bear the official stamp of the institution, and confirm when that the applicant was informed that they successfully completed their course.

•

if the applicant does not submit such a letter from their personal tutor or another relevant official at the awarding institution, then the date on the degree certificate should be used.

4.9.3 Refusal Formulae If the application is to be refused, use letter ICD 3347: A2 Refusal – Highly Skilled. 4.10. Highly Skilled: Qualifications gained in Scotland 4.10.1 Criteria Caseworkers considering such applications must satisfy themselves that: •

Within the last 12 months the applicant has been awarded a Higher National Diploma or degree awarded by a relevant institution in Scotland.

•

Higher National Certificates (HNC) and postgraduate diplomas will not make an applicant eligible for the Fresh Talent: Working in Scotland scheme, nor will honorary degrees.

Recognised Qualifications Applicants applying on the basis of an undergraduate degree, Master’s degree or PhD must have been awarded a UK recognised qualification. This does not apply to those who have been awarded HND qualifications. A relevant institution is an institution financed from public funds or included on the Register of Education and Training Providers on 1st January 2007. Further information on both recognised bodies and listed bodies can be found on the Register of Education and Training Providers website at: http://www.dfes.gov.uk/recognisedukdegrees/wcoukd.shtml Page 39 of 79

The list of recognised bodies is available here: http://www.dfes.gov.uk/recognisedukdegrees/annex4.shtml Details of the listed bodies are available here: http://www.dfes.gov.uk/recognisedukdegrees/annex5.shtml For caseworkers to be certain that a degree course isn't recognised in the UK (having checked that the institution providing the course is not listed in either the Recognised or the Listed Bodies Orders), they will need to make further enquiries with the institution providing such a degree/degree course. Successful applicants to the Fresh Talent: Working in Scotland Scheme must have been awarded their qualification by a relevant Scottish institution. Therefore the awarding institution should be either a recognised body or a listed body in the UK. If it appears that a Scottish institution is awarding the qualification, but that most of the study takes place at a non-Scottish institution, caseworkers are recommended to confirm with the Scottish institution that they are awarding the qualification and also to check that they are listed in the relevant Statutory Instrument as a recognised body. Date of completion of Studies A successful applicant must have completed his HND, degree, masters or PhD in the last 12 months. This means that students who wish to participate in the Fresh Talent: Working in Scotland Scheme have a year from the completion of their studies during which to apply for the scheme. HND and Undergraduate Degree level students Students who have studied at HND or undergraduate degree level and who are applying to participate in the scheme some time after they complete their degree should be able to produce a degree certificate with a date of graduation on it, and this date should be taken as the date of completion of studies. Masters degree and PhD level students Masters and PhD students often complete their courses by submitting a satisfactory project or piece of research, and are normally granted sufficient leave as a student for this work to be accomplished. In these cases, the date of completion of studies will be the date student leave expires. In exceptional circumstances they may be granted further leave to remain in order to write-up their projects. The date of their ‘completion of studies’ is taken as the date that their leave as a student/leave to write up a project expires.

4.10.2 Refusal Formulae If the application is to be refused, use letter ICD 3347: A2 Refusal – Highly Skilled. 4.11 Applications for a Registration Certificate from A2 Nationals who require an Accession Worker Card Page 40 of 79

A2 nationals who apply for a Registration Certificate, but who are required to obtain an Accession Worker Card (AWC) should be informed that they are not entitled to a Registration Certificate as their access to the domestic labour market is limited by the terms of the Accession Treaty. Such applicants should be advised in writing that they need to apply for an AWC. If the application is to be refused, use letter ICD 3381. If the applicant has made an application for a “Yellow” Registration Certificate confirming that they are exercising a Treaty Right on the basis of self employment and it appears that they do not meet our criteria and therefore require an Accession Worker Card we should encourage them to withdraw the application. If the applicant decides to maintain their application it should be refused.

5 A2 NATIONALS AND THE ACCESSION WORKER CARD 5.1 A2 nationals who require Accession Worker Cards Accession workers who are not exempt for worker authorisation but who are seeking to work in the UK must obtain an Accession Worker Card before they can start work (unless they can work under pre 1st January 2007 leave or a seasonal agricultural workers card) . There are two different Accession Worker Cards, one allows the applicant to undertake supplementary employment and the other does not. For certain categories of employment, the worker will be able to apply directly to the Border and Immigration Agency for an Accession Worker Card. These categories are: • • • • • • • • • •

airport-based operational ground staff of an overseas airline au pair placements domestic workers in a private household overseas government employees postgraduate doctors, dentists and trainee general practitioners private servants in a diplomatic household representatives of an overseas newspaper, news agency or broadcasting organisation sole representatives of overseas businesses teachers and language assistants on approved exchange schemes overseas qualified nurses undertaking supervised practice

Accession Worker Cards issued for these categories do not allow the holder to undertake supplementary employment. If approved, an Accession Worker Card with a serial number beginning with the letter H must be used for these categories. Family members of Accession Worker Card holders (of either type), who want to work as authorised family members, are not allowed to undertake supplementary employment and will only ever be issued with an Accession Worker Card serial number H. Page 41 of 79

If the employment does not fall into one of the categories above, an Accession Worker Card will only be issued if the employer has obtained approval through the existing work permit arrangements. This means that the employer will first need to obtain a letter of approval of the employment from the Border and Immigration Agency. Approvals under the work permit arrangements are generally only given for skilled jobs and where suitably qualified resident labour is unavailable to fill the vacancy. The work permit arrangements do, however, comprise the Sector Based Scheme under which a quota of permits may be issued for lower skilled jobs in the food processing industry. The letter of approval does not constitute an authorisation to work. If the employer does obtain a letter of approval from Border and Immigration Agency, the A2 national should then submit the letter, with a completed form BR3, as an application for an Accession Worker Card. Accession Worker Cards issued through the work permit arrangements do allow the holder to undertake supplementary employment provided that the employment for which the card has been issued has not ceased, and that the additional work: •

Is no more than 20 hours per week; and

•

Is in the same type of employment for which the holder’s Accession Worker Card was issued

An Accession Worker Card with a serial number starting with the letter G must be used for these cases. Casework guidance on the employment categories for which an Accession Worker Card may be issued is at Annex A.

6 FAMILY MEMBERS OF A2 NATIONALS Bulgarian and Romanian family members of an exempt A2 national, who may already holds, a Registration Certificate confirming that s/he is not subject to restrictions on taking employment, are entitled to be issued with a similar document. Applications on this basis should be submitted on form BR1. For spouses or civil partners of a national of an EEA Member State, other than Bulgaria and Romania, who is already exercising a Treaty Right in the United Kingdom, the most appropriate course may be for them to apply as the family member of a person exercising a Treaty Right. The application should be submitted on form EEA1. Chapter 5 of the ECI’s sets out further those family members of an EEA national who have a right to reside. Those family members falling within the listed relationships will have a right to freedom of movement. However, their eligibility to work in the UK will be dependent on whether or not their A2 national family member has a right to take employment in the UK or is exercising a Treaty Right as self employed person, self sufficient person or a student. The table below shows the documentation that may be Page 42 of 79

issued to family members of A2 nationals and the evidence required to consider the application.

A2 family members of Yellow Card holders A2 family members of Bulgarian or Romanian students, self employed or self sufficient persons will be entitled to obtain a “Blue” Registration Certificate. This will confirm that they have full access to the labour market as long as they remain the Family Member of a “Yellow” Registration Certificate holder. A2 family members who are exempt on this basis, will only remain exempt, provided that their sponsor continues to exercise their Treaty Rights as a self employed person, self sufficient person or student. Only after an A2 family member remains exempt in this way and has worked lawfully for 12 months will they acquire exemption from work authorisation permanently in their own right. A2 family members who are exempt on this basis, will only remain exempt, provided that their sponsor continues to exercise their Treaty Rights as a self employed person, self sufficient person or student. Only after an A2 family member remains exempt in this way and has worked lawfully for 12 months will they acquire exemption from work authorisation permanently in their own right. It is essential that the family member who is holding a “Blue” Registration Certificate has evidence of 12 months continuous lawful employment before their family members become exempt from worker authorisation. If an application is received that contains an application for a Registration Certificate or as a family member of a self-employed individual, self-sufficient individual or a student, but the family member meets the criteria for exemption in their own right, then a Blue Registration Certificate should be issued. (E.g. application contains a dependant that previously held code one status, then the dependant is exempt in their own right).

6.2 Family members of A2 nationals and their access to work WORKING A2 FAMILY MEMBERS OF A2 NATIONALS Applicant A2 Spouse or Civil Partner of a UK national or a person present or settled in the UK

A2 family member of a Highly Skilled A2 national (HSMP,

Which form? BR1

BR2

Evidence required A2 national’s valid ppt or valid ID card; spouse/partner’s passport or evidence of ordinary residence in the UK for the last 3 years; civil marriage/civil partnership certificate; evidence of freedom to marry/form a civil partnership if previously married/in a civil partnership. A2 national’s valid ppt or valid ID card and evidence of the relationship.

Document issued “Blue” Registration Certificate.

Any restrictions? No restrictions employment in the UK.

on

“Blue” Registration Certificate.

No restrictions employment in the UK.

on

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IGS and FT:WISS) A2 family member of an A2 self-employed individual

BR1

A2 national’s valid ppt or valid ID card and evidence of the relationship. Evidence that the main applicant is exercising Treaty Rights as a self employed person.

“Blue” Registration Certificate.

A2 family member of an A2 Student

BR1

A2 national’s valid ppt or valid ID card and evidence of the relationship. Evidence that the main applicant is exercising a Treaty Right as a student.

“Blue” Registration Certificate.

A2 family member of an A2 self-sufficient individual

BR1

A2 national’s valid ppt or valid ID card. Evidence that the main applicant is exercising a Treaty Right as a self sufficient & has full medical insurance cover

“Blue” Registration Certificate.

No restrictions on employment in the UK provided their A2 sponsor remains self employed, self sufficient, a student or the Blue Reg Cert holder completes 12 months continuous lawful employment. No restrictions on employment in the UK provided their A2 sponsor remains self employed, self sufficient, a student or the Blue Reg Cert holder completes 12 months continuous lawful employment. No restrictions on employment in the UK provided their A2 sponsor remains self employed, self sufficient, a student or the Blue Registration Certificate holder completes 12 months continuous lawful employment.

NON-EEA DEPENDANTS OF A2 NATIONALS REFERENCE TO CHAPTER 5 SHOULD BE MADE TO DETERMINE IF THE NON EEA FAMILY MEMBER QUALIFIES FOR A RESIDENCE CARD A2 family member of an Accession Worker Card Holder

BR4

A2 national’s valid ppt or valid ID card and evidence of the relationship and a legitimate job offer. Evidence that the main applicant holds an Accession Worker Card.

Accession Worker Card.

There is no skills test for this category so they can take any legal work with the specified employer on the vignette. If they want to change employers they must apply for a new Accession Worker Card. AWC’s issued to Authorised Family Members cannot sponsor additional AWC applications.

Non EEA family member, of an A2 national with a Registration Certificate

BR5

A2 national’s valid ppt or valid ID card, non EEA’s valid ppt, evidence of the relationship and evidence that the A2 national is exercising a Treaty Right.

A Residence Card (in ppt).

No restrictions employment in the UK.

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on

Non-EEA family member of an A2 national with an Accession Worker Card

BR6

A2 national’s valid ppt or valid ID card. Ppt’s for the non EEA family members, evidence of the relationship and evidence that the A2 national has a Registration Certificate and still qualifies.

A Family Member Residence Stamp (in passport).

No restrictions employment in the UK.

on

For further information about Chen cases please refer to the ECI’s – Chapter 2, Rights of non-EEA national family members of EEA nationals 7. APPEAL RIGHTS Rights of appeal against decisions to refuse to issue or to revoke a Registration Certificate or residence card are set out in Regulation 26 of the Immigration (EEA) Regulations 2006. Further information on appeal rights can be found in ECI’s Chapter 9 and refusal wordings in Chapter 10. There is no statutory right of appeal against a decision not to issue an Accession Worker Card. 7.1 Accession Worker Card Reviews Where a letter is received, within 28 days of the date of the original decision letter, seeking reconsideration of a refusal on the basis of the information already provided in the original application, consideration should be given as to whether, with hindsight, the refusal was flawed. Reconsiderations should be passed to an EO who will reconsider the grounds of refusal provided in respect of the initial application only. New or additional information should be accompanied by a new application. 8. APPLICATIONS AND APPEALS THAT ARE OUTSTANDING AT 1 JANUARY 2007 8.1 Outstanding Appeals An EEA national can hold both leave to remain under the immigration rules and have a right to reside at the same time. Accordingly any leave to remain granted prior to 1st January 2007 remains current post accession until it expires. However where the leave to remain and the right of residence are concurrent the conditions of leave to remain do not apply. Applications made prior to 1st January 2007 that are outstanding on 1st January 2007 can be broken down in to one of six scenarios set out in the attached table, based on Page 45 of 79

whether the application is in time or not and when the request for confirmation of the right to reside was made. Where the applicant made an in time application and this is extant on accession S3C leave will run until that application is resolved or withdrawn. S3C leave occurs where an individual's existing leave expires between their applying for new/further leave, and a decision being made on the new application. The terms of the original leave are deemed to continue until a decision is made on the new leave. This is set out in S3C of the 1971 Act as introduced by the S3 Immigration and Asylum Act 1999. Where the A2 national has an outstanding appeal against an immigration decision on 1st January 2007 and is issued with a Registration Certificate, Residence Card, Accession Worker Card, or Family member stamp, the outstanding appeal is considered as being abandoned. Para 4 (2) of Schedule 2 of the EEA Regulations 2006 refers. A person who has been issued with a Registration Certificate, residence card, a document certifying permanent residence or a permanent residence card under these Regulations or a Registration Certificate under the Accession (Immigration and Worker Registration) Regulations 2004(c) or an accession worker card, or a person whose passport has been stamped with a family member residence stamp, shall have no right of appeal under section 2 of the Special Immigration Appeals Commission Act 1997 or section 82(1) of the 2002 Act. Any existing appeal under those sections of those Acts or under the Asylum and Immigration Appeals Act 1993(d), the Asylum and Immigration Act 1996(e) or the 1999 Act shall be treated as abandoned.

Scenario Decision IN TIME APPLICATIONS Application made in Applicant qualifies time prior to 1/1/07, for a Registration application is Certificate or unresolved at 1/1/07 residence card or and applicant then family member seeks confirmation residence stamp. of right to reside under EC law before their leave to remain expires. Application made in Applicant refused a time prior to 1/1/07, Registration application is Certificate or unresolved at 1/1/07 residence card or and applicant then family member seeks confirmation residence stamp of right to reside and applicant does under EC law not meet the requirements of the before their leave immigration rules. to remain expires. Application made in Confirmation of time prior to 1/1/07, EEA rights issued. application is unresolved at 1/1/07 and applicant then seeks confirmation of right to reside

Appeal right

Reasons / handling

No right of appeal.

This should be treated as an amendment to an in time application and the applicant still has leave at the time of the decision.

A right of appeal will only exist against the refusal of EEA documentation only if it is also decided that the applicant’s extant leave to remain should be curtailed.

Applicant has made an in time application and will only have a right of appeal if, as a result of the decision to refuse does not have valid leave to remain. This will only apply if the extant leave is curtailed.

No right of appeal.

The applicant did not have valid leave to remain at the time of application.

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under EC law after their leave to remain expires. Application made in time before 1/1/07, application is unresolved on 1/1/07. Applicant then makes an application for confirmation of their right to reside under EC law after their leave to remain has expired.

Applicant refused a Registration Certificate or residence card or family member residence stamp and applicant does not meet the requirements of the immigration rules.

Right of appeal against the decision to refuse confirmation of the right to reside, and against refusal under the immigration rules. Decisions should be served together if possible with the imitation of enforcement action in a solitary decision.

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The EEA regulations provide for right of appeal against the refusal of a Registration Certificate or residence card which is not dependent on the applicant having leave at the time of application. Immigration rules based application attracts a s82 (1) right of appeal.

Scenario Decision IN TIME APPLICATIONS Application made in Applicant qualifies time prior to 1/1/07, for a Registration application is Certificate or unresolved at 1/1/07 residence card or and applicant then family member seeks confirmation residence stamp. of right to reside under EC law before their leave to remain expires. Application made in Applicant refused a time prior to 1/1/07, Registration application is Certificate or unresolved at 1/1/07 residence card or and applicant then family member seeks confirmation residence stamp of right to reside and applicant does under EC law not meet the requirements of the before their leave immigration rules. to remain expires. Application made in Confirmation of time prior to 1/1/07, EEA rights issued. application is unresolved at 1/1/07 and applicant then seeks confirmation of right to reside under EC law after their leave to remain expires. Applicant refused a Application made in Registration time before 1/1/07, Certificate or application is residence card or unresolved on family member 1/1/07. Applicant residence stamp then makes an and applicant does application for confirmation of their not meet the right to reside under requirements of the immigration rules. EC law after their leave to remain has expired. Out of time applications Application made Applicant qualifies out of time prior to for a Registration 1/1/07, application is Certificate or unresolved at 1/1/07 residence card or and applicant then family member seeks confirmation residence stamp. of right to reside under EC law. Application made Applicant refused a out of time prior to Registration 1/1/07, application is Certificate or unresolved at 1/1/07 residence card or and applicant then family member

Appeal right

Reasons / handling

No right of appeal.

This should be treated as an amendment to an in time application and the applicant still has leave at the time of the decision.

A right of appeal will only exist against the refusal of EEA documentation only if it is also decided that the applicant’s extant leave to remain should be curtailed.

Applicant has made an in time application and will only have a right of appeal if, as a result of the decision to refuse does not have valid leave to remain. This will only apply if the extant leave is curtailed.

No right of appeal.

The applicant did not have valid leave to remain at the time of application.

Right of appeal against the decision to refuse confirmation of the right to reside, and against refusal under the immigration rules. Decisions should be served together if possible with the imitation of enforcement action in a solitary decision.

The EEA regulations provide for right of appeal against the refusal of a Registration Certificate or residence card which is not dependent on the applicant having leave at the time of application.

No right of Appeal.

Applicant did not have valid leave to remain at the time of application.

Right of appeal against the decision to refuse confirmation of the right to reside, but not against the failure

The EEA regulations provide for right of appeal against the refusal of a Registration Certificate or residence card. However applicant did not have valid leave

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Immigration rules based application attracts a s82 (1) right of appeal.

seeks confirmation of right to reside under EC law.

residence stamp to meet the to remain when the application and applicant does immigration rules. was lodged, hence no right of not meet the appeal against refusal under requirements of the immigration rules. immigration rules. Appeals outstanding at 1/1/07 ( applications can only have been in time) A2 national or their Applicant issued No right of appeal. Where confirmation of a right to family member with Registration reside is issued the appeal is refused an in time Certificate of considered to be abandoned, application prior to Residence card or Para 4(2) of Schedule 2 of the 1/1/07 and the otherwise EEA Regulations see above, appeal is confirmation of a refers. outstanding at right to reside. 1/1/07. A2 national family member seeks confirmation of right to reside. A2 national or their Applicant refused Right of Appeal The request for confirmation of a family member Registration against both right to reside should be refused an in time Certificate of Immigration and EC considered as being an application prior to Residence card or law decisions. The amendment to the earlier. 1/1/07 and the otherwise reasons for the refusal Although the applicant has leave appeal is confirmation of a of EEA documentation extended by S3C the application outstanding at right to reside. to be argued at for confirmation of a right to 1/1/07. A2 national/ appeal. reside is not a fresh application. family member seeks confirmation of right to reside.

Any directions to remove made under paragraphs 8–10a of Schedule 2 to the 1971 Act or section 10 of the 1999 Act, prior to 1st January 2007, cease to have effect as of 1st January 2007.

8.2 APPLICATIONS FOR EEA FAMILY PERMITS BY NON EEA FAMILY MEMBERS OF A2 NATIONALS Applications for EEA family permits are normally handled by posts overseas, though it is possible that the post may decide to defer or refer the application. This will usually be when there is uncertainty concerning the status of the EEA national in the UK. Where a post refers an application for a family permit it should be dealt with in accordance with the guidance set out in Chapter 3.

9. COMPLIANCE AND ENFORCEMENT 9.1 Revocation of Registration Certificates If an A2 national has ceased to exercise Treaty Rights (This covers where the A2 national has left the UK; circumstances where IS (Immigration Service)have discovered that the A2 national is not genuinely employed and could cover where the EEA national is no longer exercising any Treaty Rights and remains here on benefits), or it is discovered that the passport or ID card submitted as evidence of EEA nationality was Page 49 of 79

forged / counterfeit, the Registration Certificate should be revoked (see section 11, ECIs Chapter 8). An A2 national who has been convicted of a crime may have been issued with a Registration Certificate. If Criminal Casework Directorate (CCD) are taking deportation action, or are intending to take deportation action against the individual then it will be appropriate to revoke a Registration Certificate on the basis of Public Policy. All revocations attract a full ‘in country’ right of appeal under Regulation 26 of the 2006 Regulations. The revocation outcome should be recorded on CID - “A2 Revoke Registration Certificate” If the application is to be refused, use letter ICD 3382. 9.2 Illegal Entry by A2 Nationals Whilst A2 nationals do not require entry clearance or leave to enter the UK, they may be subject to illegal entry action if they enter or seek to enter the UK in breach of an extant deportation order. However, if an A2 national was served papers as an illegal entrant prior to 1st January 2007 those papers no longer have effect and no further illegal entry action must be taken against the person on that particular basis. However, it is always advisable to make sure that the papers have been withdrawn. Where an EEA national is exercising Treaty Rights in the United Kingdom his family members (who may not be EEA nationals themselves) are afforded the same rights to free movement and residence. Accordingly that family member should not normally be detained or placed on reporting restrictions. The Border and Immigration Agency may receive A2 related applications from or on behalf of illegal entrants. Responsibility for the decision on the application lies with the A2 Casework Team not with the Immigration Service (IS) or Enforcement and Removals Casework. If IS are required to make enquiries on behalf of the A2 Casework Team, clear guidance should be given as to the nature and conduct of those enquiries. The A2 Casework Team must notify the IS of the outcome of an illegal entrant’s application, particularly if a residence card has been issued as enforcement action cannot be pursued and reporting restrictions will have to be cancelled. Contact should normally be made via the relevant local enforcement office dealing with the person. 9.3 Decisions to Remove Where there is reason to believe that documents provided by an A2 national or family member as proof of nationality, identity or a relationship are counterfeit, forged or have been fraudulently obtained, then that person may be dealt with under UK immigration legislation provided: Page 50 of 79

•

They have made an admission under caution to this effect; or the National Document Fraud Unit has undertaken a full and detailed examination of the document and provided a report concluding that the document is either counterfeit, a forgery or not genuinely issued ( i.e. the document is genuine, but issued in a fraudulent manner; and

•

It has been possible to confirm their true identity and nationality (which is not that of an EEA national)

The right of appeal against the decision to remove is an out of country right of appeal unless the person raises grounds for asylum or a human rights claim that is not certified as clearly unfounded. A deportation order cannot be lawfully obtained so long as an appeal may be lodged against the decision to make it nor, if an appeal is lodged, while that appeal is pending. Once the person is removable the case will be passed to the local enforcement office covering the area in which the person lives.

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ANNEX A: A2 APPLICATIONS - ACCESSION WORKER CARDS

CONTENTS 1) 2) 3) 4) 5) 6) 7) 8) 9)

Letter of approval under the work permit arrangements 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 Representatives of an overseas newspaper, news agency or broadcasting organisation 10) Sole representatives of overseas businesses 11) Teachers or language assistants on approved exchange schemes 12) Overseas qualified nurses undertaking supervised practice 13) Authorised family members

1. LETTER OF APPROVAL UNDER THE WORK PERMIT ARRANGEMENTS Unless they qualify in one of the other categories set out in this Annex, an A2 worker subject to work authorisation will need to hold a letter of approval issued under the Border and Immigration Agency arrangements. The employer will apply for this and once it has been issued the worker may then apply for an Accession Worker Card on this basis. Provided that the employment has been approved under the work permit arrangements, the application for an Accession Worker Card will only fall to be refused if the caseworker: •

is not satisfied that the subject of the application is the same person to whom the letter of approval was issued; or

•

is not satisfied that the subject of the application is capable of undertaking the employment specified in the letter of approval; or

•

is not satisfied that the evidence to prove A2 nationality is sufficient

1.1 Refusal Formulae If the letter is to be refused, use letter ICD 3354: A2 Refusal – Work Permit.

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2. AIRPORT BASED OPERATIONAL GROUND STAFF OF AN OVERSEAS AIRLINE 2.1 Introduction The term "Operational ground staff" relates to station managers, security managers and technical managers employed at an international airport in the United Kingdom. This category relates to persons employed for the maintenance, repair and overhaul of an international airline's operating fleet. Bulgarian and Romanian nationals, whether operational or not, of British owned airlines require a letter of approval under the Border and Immigration Agency arrangements if they are to be based in the United Kingdom. 2.2 Airline staff that require a letter of approval under the Border and Immigration Agency arrangements Unless they are exempt from the requirement to hold an Accession Worker Card, all Bulgarian and Romanian nationals working for overseas airlines, and all staff of United Kingdom airlines who are to be based in the United Kingdom are required to have a letter of approval under the Border and Immigration Agency arrangements. Such jobs may include: • • • • •

flight dispatcher traffic officer assistant station manager catering manager accountant

It is important to note that the manager and staff of the "Town" office (as opposed to at the port) also require a letter of approval under the work permit arrangements and should not be confused with operational ground staff. 2.3 Criteria Caseworkers considering applications under the operational ground staff category must satisfy themselves that: •

the applicant has been transferred to the United Kingdom by an overseas-owned airline operating services to and from the United Kingdom to take up duty at an international airport as a station manager, security manager or technical manager; and

•

the application is supported by a letter from the airline, certifying that the applicant is required to take up duty as a station manager, security manager or technical manager; and

•

the applicant does not intend to undertake any other employment

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2.4 Refusal Formulae If the application is to be refused, use letter ICD 3340: A2 Refusal – Airport Based Operational Ground Staff.

3. "AU PAIR" PLACEMENTS 3.1 Introduction A young person from Bulgaria or Romania who wishes to learn the English language may do so by coming to the United Kingdom to live as a member of an Englishspeaking family living here. An "au pair" is expected to help with housework and assist with the care of children for up to 5 hours a day, 5 days a week. 3.2 Criteria Caseworkers considering such applications must satisfy themselves that: •

the applicant is aged between 17 and 27 inclusive, is unmarried and without dependants;

•

the applicant is in the United Kingdom for the purpose of learning the English language;

•

the applicant is living as a member of an English speaking family with appropriate opportunities for study;

•

the applicant will help in the home for a maximum of 5 hours per day in return for a reasonable allowance (no more than £100 per week) and with two free days per week

Please note that the intention to leave test applied to non-EEA au pairs is not applied to Bulgarian and Romanian au pairs. 3.3 Further Guidance Age limits An "au pair" must have attained the age of 17 but not have reached the age of 28. Some discretion may be used in the case of a young person who will be 17 within a few days. Discretion to approve applications from individuals aged 28 years or over should not be used unless it is apparent that the arrival has been delayed by an unexpected domestic crisis, illness or the completion of a long-term course of study. In such cases discretion may be exercised up to six months over the age of 28, however, line manager advice should be sought.

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The host family The family should be resident (though not necessarily settled) in the United Kingdom and be English speaking (i.e. English is the normal means of communication within the family circle). Any doubts on the latter point should be cleared by further enquiries with the hosts (particularly where the "au pair" wishes to live with a family of the same national origin or mother tongue). Where there is a family relationship between the "au pair" and the hosts, care should be taken to ensure that all aspects of the arrangement are satisfactory and, in particular that the "au pair" is coming for the purpose of learning English and not to work as a full-time child-minder. A "family" need not consist of a husband, wife and children but a person living alone should not be considered as a family for the purposes of the "au pair" rules. If the requirements cannot be satisfied, the application should be refused. Host families with more than one au pair at the same time There is nothing to prevent a host family from having more than one au pair at the same time provided that each placement meets the full requirements. Acceptable “au pair” arrangements The "au pair" criteria are set out above. In addition an “au pair”: •

should be free to attend religious services as well as language classes if they wish

•

should have free board and lodging and the use of own room

•

may also be expected to baby-sit for up to two nights a week; and

•

the "reasonable allowance" should be up to £100 per week. Any sum in excess of this might suggest that the person is filling the position of domestic servant, or similar, which would require a letter of approval under the Border and Immigration Agency arrangements.

A letter from the host family confirming the placement and describing the arrangements, e.g. details of the host, family duties, pocket money and arrangements for study, should normally be requested. Please Note: The Au Pair Plus scheme is not recognised within the agreement for Bulgarian and Romanian applications. 3.4 Refusal Formulae If the letter is to be refused, use letter ICD 3341: A2 Refusal – Au Pair.

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4. DOMESTIC WORKER IN A PRIVATE HOUSEHOLD 4.1 Introduction Domestic workers from Bulgaria or Romania may include cleaners, chauffeurs, gardeners, cooks, those carrying out personal care for the employer or a member of the employer’s family and nannies if they are providing a personal service relating to the running of the employer's household. There must be a genuine existing employer/employee relationship that has subsisted for a year outside the United Kingdom. People already in the United Kingdom are not permitted to recruit domestic workers from overseas through these arrangements. 4.2 Criteria Caseworkers considering such applications must satisfy themselves that: •

The applicant is 18 or over ; and

•

The applicant has been employed for at least the last year outside the United Kingdom as a domestic worker under the same roof as his/her employer or in a household that the employer uses for him/herself on a regular basis (a short gap does not disqualify the applicant unless it indicates the lack of a genuine existing employer/employee relationship); and

•

The applicant intends to be so employed by that employer in the United Kingdom; and

•

The employer has provided details of the main terms and conditions of the domestic worker’s employment; and

•

The applicant does not intend to take employment except as a domestic worker in a private household.

4.3 Further Guidance Terms of employment This should confirm that the domestic worker will be paid at least the National Minimum Wage. However, there is no provision in the regulations for an application to be refused on the basis that the domestic worker is not being paid the National Minimum Wage (NMW). If it is apparent that the NMW is not being paid, details of the employment should be passed to the relevant team at the Department for Business, Enterprise and Regulatory Reform. There is no objection to the employer’s company paying for the domestic worker if it is part of his/her employment package, provided we are certain that the employment is confined to the employer’s private household. There is no requirement for the domestic worker to live in the same accommodation as the employer. Caseworkers should ensure that either the employer is going to be Page 56 of 79

paying for the accommodation or that the domestic worker's wages are sufficient to cover the expense without recourse to other employment. Employer The employer must usually be present in the UK. An application should not normally be approved where it is known that the employer will not be living in the UK. There may be acceptable cases where the employment continues while the employer is abroad, for example, a housekeeper taking care of a property or a cook working for the employer's family who remain in the UK while the employer himself is abroad. Even then, however, the employer must spend some time in the United Kingdom each year. 4.4 Refusal Formulae If the letter is to be refused, use letter ICD 3344: A2 Refusal – Domestic Worker in a Private Household.

5. MINISTERS OF RELIGION, MISSIONARIES AND MEMBERS OF RELIGIOUS ORDERS 5.1 Introduction These terms are intended to apply to full-time religious workers of all faiths, including those who have no formally ordained ministry. Although all three kinds of workers are given the same conditions they are separate categories to which different requirements apply. 5.2 Criteria Caseworkers considering such applications must satisfy themselves that: •

the applicant has provided a letter from their employer stating that they are required to work full-time in the UK as a Minister of Religion, Missionary or for the Religious Order of which he/she is a member; and

•

the applicant holds an International English Language Testing System Certificate issued to him to certify that he has achieved level 4 competence in spoken English and the Certificate is dated not more than two years prior to the date on which the application is made; and

•

the applicant intends to work in the United Kingdom as a minister of religion, missionary or for the religious order of which he is a member.

If a Minister of Religion: •

the applicant has been working for at least one year as a Minister of Religion in any of the five years immediately prior to the date on which the application is made; or Page 57 of 79

•

where ordination is prescribed by a religious faith as the sole means of entering the ministry, the applicant has been ordained as a minister of religion following at least one year full time or two years’ part time training for the ministry;

If a Missionary: •

the applicant has been trained as a missionary or has worked as a missionary and is being sent or has been sent to the United Kingdom by an overseas organisation.

If a Member of a Religious Order: •

the applicant is living or coming to live in a community maintained by the religious order of which he is a member and, if intending to teach, does not intend to do so save at an establishment maintained by his order.

5.3 Further Guidance Ministers of Religion To qualify as a Minister of Religion the description of the job the applicant is to take should be consistent with the definition and not, for example, confined to teaching children. It will probably include a wide range of activities but should in any case include all the following core duties: • • • • •

To lead worship regularly and on special occasions; To provide religious education for children and adults by preaching or teaching; To officiate at marriages, funerals and other special services; To offer counselling and welfare support to members of the congregation; To recruit, train and co-ordinate the work of any local volunteers and lay preachers.

Other supplementary duties appropriate for a Minister of Religion may also be included in the job description. It cannot be assumed that even a small congregation will require only one full-time minister but additional ministers must be working full-time to qualify. Missionaries The duties of a missionary need not be restricted to preaching and teaching and may include the organisation of missionary activity, but should not be essentially administrative or clerical in nature. Working full-time as a teacher in a school run by a church or missionary organisation does not count as missionary work, but translating the Bible is missionary, not clerical, work. People who are to fill senior posts in a missionary organisation may be considered, provided they meet the other requirements of the Missionary criteria. Thus, they may not be doing fieldwork themselves but will be supervising staff and/or co-ordinating the organisation of missionary work, or will be in charge of a particular activity such as accounts/finance, personnel management or IT. Page 58 of 79

Those who are in support posts (clerical, secretarial, messenger) should not be considered, unless they will spend a substantial part of their time in the UK in active missionary fieldwork. The criteria provide that such persons need to have been trained as missionaries, or have worked as missionaries and are being sent to the United Kingdom by overseas organisations to work full-time as a missionary. The purpose of these requirements is to ensure that the missionary has a solid background as such and is being sent out to the United Kingdom as part of his work and not coming in at the request of a congregation without having to meet the minister of religion requirements. Members of a Religious Order In practice this category is restricted to members of monastic communities of monks and nuns (usually Christian or Buddhist) and similar religious communities involving a permanent commitment. Most work will be within the community itself although some members may undertake outside work directed by their order. Teachers working in schools not maintained by their order will require work permits. Novices whose training consists of taking part in the daily community life of their order should be treated as members of a religious order, but anyone taking on a formal course of study or training in an academic institution not maintained by the order should be treated as a student. Nuns undertaking nursing training with the Benedictine Sisters of Our Lady of Grace and Compassion are exceptionally treated as students since they will be returning abroad. People who are not members of a religious order but are studying within such a community should normally be treated as visitors or students. 5.4 Refusal Formulae If the letter is to be refused, use letter ICD 3348: A2 Refusal – Ministers of Religion.

6. OVERSEAS GOVERNMENT EMPLOYMENT 6.1 Introduction Persons coming for full-time employment by an overseas government do not require approval letters under the existing Border and Immigration Agency arrangements. The term "overseas government employee" includes persons employed by the United Nations Organisation or other international organisation of which the United Kingdom is a member. 6.2 Criteria Page 59 of 79

Caseworkers considering such applications must satisfy themselves that: •

The applicant has provided a letter from their employer stating that they are required to work in the UK for an overseas government or the United Nations or other international organisation of which the UK is a member.

6.3 Refusal Formulae If the letter is to be refused, use letter ICD 3355: A2 Refusal – Overseas Government Employment.

7. POSTGRADUATE DOCTORS, DENTISTS AND TRAINEE GENERAL PRACTITIONERS 7.1 Introduction In March 2006, changes to Immigration Rules restricted this category to those eligible for a Foundation Programme. However, because the standstill clause in the Accession Treaty requires the Government to apply controls that are no more restrictive than those which applied in April 2005. The 2006 Regulations replicate the criteria which applied to this category before March 2006. Persons affected by this part of the Rules will fall into two categories: •

graduates from medical schools who must undertake Pre-registration House Officer (PRHO) employment for up to 12 months in order to obtain full registration with the General Medical Council (GMC)

•

qualified doctors or dentists undertaking basic or higher specialist postgraduate training in a hospital and /or the Community Health Service

Please note: The above categories do not include persons who come here to study at medical or dental schools (such persons are to be treated as students), or qualified doctors coming here as visiting doctors of distinction (such persons are not subject to worker authorisation). 7.2 Criteria Caseworkers considering such applications must satisfy themselves that the applicant either: •

is a graduate from a medical or dental school eligible for provisional or limited registration with the GMC intending to take up an approved post for up to 12 months as a PRHO ; or

•

is a qualified doctor or a dentist eligible for full or limited registration with the GMC or GDC, who intends to undertake postgraduate training in a hospital and/or the Community Health Services; and Page 60 of 79

7.3 Further guidance Overseas doctors and dentists come to the United Kingdom to undertake postgraduate training for a variety of reasons and with varying degrees of experience. Some will come for a limited period to train in a specific area or procedure and will not seek to gain professional qualifications, others will come for longer periods of basic or higher specialist training or both. Whilst in the United Kingdom they may seek to qualify for one of the recognised professional qualifications (e.g. Membership/Fellowship of a Medical Royal College) or may wish to qualify for a Certificate of Completion of Specialist Training (CCST) which is required in order to be appointed as a consultant although that is not likely to be their career goal. Whatever their training goals, they will be supervised throughout their training by the Postgraduate Dean. Training is either basic specialist (delivered in the Senior House Officer grade) or higher specialist (delivered in the Specialist Registrar grade). 7.3.1 Registration with the General Medical Council Before any doctor is allowed to practise in the United Kingdom, whether in employment or undertaking postgraduate training in a hospital, they must be registered with the General Medical Council (GMC). The first requirement for this is a satisfactory primary qualification - usually a degree obtained from a United Kingdom medical school or, in the case of some overseas doctors, in their own country. •

United Kingdom graduates Graduates from medical schools are eligible for provisional registration with the GMC but have to undergo a pre-registration year before they are considered to be fully qualified. This will normally take the form of pre-registration house officer (PRHO) employment (usually two 6 month posts) at the end of which a doctor who has qualified in the United Kingdom is given full registration with the GMC. On occasion the GMC may grant a form of limited registration "pre-registration limited registration" to overseas doctors who are graduates of EEA medical schools.

•

Overseas graduates Doctors who qualify overseas will usually have completed the equivalent of a preregistration year in their home country and will normally qualify for Limited Registration with the GMC.

•

Professional and Linguistic Assessment Board (PLAB) test With the exception of those who qualify at selected medical schools, (as listed above) most doctors who qualify overseas are required first to pass the PLAB test to demonstrate their knowledge of English and their medical expertise - they are then given limited registration with the GMC. Bulgarian and Romanian doctors coming to the United Kingdom to take the PLAB test are not required to obtain work authorisation. Since January 1997 for new applicants for registration and from January 1998 for all applicants there will be a test of linguistic competence run by Page 61 of 79

the International English Language Testing Service of the British Council. Success in this test will be a pre-condition of taking the PLAB test and overseas doctors will be able to take the test in any of 109 centres overseas. PRHO employment for doctors with overseas qualifications Very occasionally a doctor who has qualified overseas may be required by the GMC to undergo all or part of a PRHO year and be given appropriate registration for this purpose. Such doctors may be dealt with on the same basis as graduates from British medical schools. Overseas Doctors' Training Scheme (ODTS) Various Royal Colleges including the Royal Colleges of Surgeons, Physicians, Anaesthetists and Psychiatrists sponsor overseas doctors under the auspices of the above scheme, to come here for postgraduate training. These doctors will normally have had several years' experience in their own countries. The colleges will arrange limited registration with the GMC and suitable hospital training posts for the doctors. It is not necessary to make further enquiries about the training programme or ask for evidence of GMC registration if the doctor produces a letter from one of the colleges stating he is taking part in the ODTS. Other sponsoring organisations for overseas doctors The British Council, the World Health Organisation and the Commonwealth Scholarship Foundation also sponsor overseas doctors and arrange suitable hospital training posts and limited registration for them. Applicants sponsored by these organisations should be treated in the same way as those sponsored by the ODTS. 7.3.2 Registration with the General Dental Council Before anyone is allowed to practise as a dentist in the United Kingdom he must be registered with the General Dental Council (GDC). The first requirement for this is a satisfactory primary qualification - usually a statutory examination. Unlike doctors, dentists are eligible for registration with the GDC as soon as they have gained this qualification. The GDC may grant temporary registration to overseas dentists whose qualifications do not entitle them to full registration. This will enable them to practise dentistry in a particular hospital or dental school. Temporary registration is granted for periods of six months or less up to a maximum of two years, but may be extended for a dentist continuing postgraduate training. Occasionally, a dentist will undertake postgraduate training in a hospital. Such dentists should be dealt with in the same way as doctors undergoing postgraduate training except that a dentist should be registered with the GDC instead of the GMC. 7.3.3 The private sector Postgraduate training in the private health sector may be permitted.

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7.3.4 NHS Appointments NHS hospital appointments are either in training grade posts or career grade posts, for example consultant, associate specialist or staff grade appointments. Overseas doctors in the specialist registrar grade are often referred to as "visiting specialist registrars" denoting that they have no entitlement to settle in the United Kingdom. Other arrangements may also be acceptable, however, including honorary (unpaid) work in the appropriate NHS grade and hospital research posts with honorary contracts to treat patients. The postgraduate Dean should be asked to confirm that genuine training is involved. Overseas qualified doctors with limited registration may take employment only in hospital training posts which are educationally approved. Doctors with full registration, on the other hand, are qualified to undertake a wider range of activities but they should be treated as postgraduate trainees only if they are continuing their training. If a doctor is working towards a postgraduate qualification this tends to add weight to an application to remain here as a postgraduate trainee. However, if they are not, we should not refuse solely on this basis, since they may be gaining valuable experience in a speciality. The postgraduate dean will provide evidence of satisfactory progress in training. Doctors or dentists who are taking a series of unrelated short-term locum posts will not normally qualify to remain as postgraduate trainees. Applications should be refused on the grounds that they are not postgraduate trainees and do not meet the requirements of Paragraphs 72 or 75 of HC 338. Again the postgraduate dean will provide advice. 7.3.5 Head for head exchanges All doctors or dentists - including self-employed general medical/dental practitioners coming to the United Kingdom under one-for-one formal exchange visit arrangements will require a letter of approval under the Training and Work Experience Scheme in order to obtain an Accession Worker Card. 7.3.6 NHS: grades in hospital and community health, general medical and dental health services (i) Training grades Hospital and community health services Overseas doctors undertaking postgraduate training in the Hospital and Community Health Services are eligible for an Accession Worker Card without requiring a letter of approval under the work permit arrangements where they hold a substantive or locum appointment in the following grades: Pre-registration House Officer (PRHO); House Officer (dentists only); Senior House Officer (SHO); Specialist Registrar; or Page 63 of 79

An honorary NHS appointment approved by the postgraduate dean in the training grade. General medical or dental services (general practice) Medicine:

Trainee or "general practice (GP) registrar";

Dentistry:

Trainee.

Please note: (i) Overseas doctors or dentists without settled status may be appointed as trainees (GP registrars) but will require a letter of approval permit provided under the provisions of the Training and Work Experience Scheme (TWES). They are not eligible for permit free training status; (ii) Doctors employed as pre-registration house officers (PRHOs) are not restricted to employment in a hospital and/or the community health services. (ii)

Career grades

Hospital and community health services The following posts are subject to work permit provisions: Staff Grade; Associate Specialist; Limited Specialist (Scotland only); Consultant; Senior Clinical Medical Officer (SCMO) (see notes below); Clinical Assistant (see notes below); Hospital Practitioner (see notes below); Other titles as agreed locally by NHS Trusts (e.g. NHS Trust Doctor); Please note: (i) No new appointments have been made to the grades SCMO and CMO since March 1994. The grades are gradually being phased out as posts in them are incorporated into the other career grades. (ii) A Clinical Assistant denotes a part-time medical or dental appointment under paragraphs 94 and 105 of their Terms and Conditions of Service; (ii) The Hospital Practitioner grade is restricted to principals delivering general medical or dental services under Part II of the NHS Act 1977. Such an appointment is not suitable for work permit employment. General medical services (general practice) GP Principal; Page 64 of 79

Associate; Assistant; Deputy/locum. General dental services (general practice) GP Principal; Associate; Assistant; Deputy/locum. Please note: Overseas doctors without settled status-seeking appointments as a principal will require to satisfy the arrangements for self- employment. The other grades listed above are subject to work permit provisions. Refusal formulae If the letter is to be refused, use letter ICD 3335: A2 Refusal – Post-Grad Doctors.

8. PRIVATE SERVANTS IN DIPLOMATIC HOUSEHOLDS 8.1 Introduction These arrangements provide for foreign diplomats to bring in Bulgarian or Romanian servants. "Servants" may include chauffeurs, gardeners, cooks and nannies if they are providing a personal service relating to the running of the employer's household. Employees engaged in direct connection with any business in which the employer may be involved, or people who perform cleaning or other duties on the mission premises do not qualify under these arrangements. Private servants of a head of mission, employed directly by the country concerned, are exempt from control. 8.2 Criteria Caseworkers considering such applications must satisfy themselves that: •

The applicant is over 18; and

•

The employer has provided a signed statement of the main terms and conditions of the employment, confirming that they will be employed as a private servant of a member of staff of a diplomatic or consular mission; and

•

The employer’s letter confirms that he/she enjoys diplomatic privileges and immunity within the meaning of the Vienna Convention on Diplomatic Relations.

8.3 Refusal Formulae

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If the letter is to be refused, use letter ICD 3336: A2 Refusal – Private Servant in Diplomatic Household.

9. REPRESENTATIVES OF OVERSEAS NEWSPAPERS, NEWS AGENCIES AND BROADCASTING ORGANISATIONS 9.1 Introduction These arrangements provide for the admission of Bulgarian or Romanian correspondents and representatives employed by overseas newspapers, news agencies and broadcasting organisations assigned to the UK on a long-term full-time salaried basis. Applicants must have been engaged outside the UK and be directly involved in newsgathering for publication or broadcast abroad. Employees other than journalists may be considered, for example, producers, news cameramen and front of camera personnel. Secretaries and other administrative staff, however, need work permits. 9.2 Criteria Caseworkers considering such applications must satisfy themselves that: •

The applicant has been engaged by an overseas newspaper, news agency or broadcasting organisation outside the UK, and is being posted to the UK by that newspaper, agency or organisation to act as its representative; and

•

The employer has provided a signed statement setting out the details of the post, including the name and address of the employer and the nature of the work the applicant is to undertake in the UK.

9.3 Refusal Formulae If the letter is to be refused, use letter ICD 3337: A2 Refusal – Reps of Overseas News Agency.

10. SOLE REPRESENTATIVES OF OVERSEAS FIRMS 10.1 Introduction These arrangements provide for the admission of Bulgarian or Romanian representatives of overseas firms which have no branch, subsidiary, or other representative in the UK. Where a branch, subsidiary, or other representation already exists, staff will require work permits. If a UK company exists as a legal entity only, (e.g. because it has been set up in anticipation of the parent company's expansion into this country), employs no staff and transacts no business, then a sole representative arrangement would still be admissible. Page 66 of 79

Where two representatives are coming to the United Kingdom they cannot both qualify in this category. One may be treated as a sole representative and after arrival he should make a work permit application for the other. Permit free status does not extend to a secretary or personal assistant accompanying a sole representative. Such persons require a letter of approval under work permit arrangements. 10.2 Criteria Caseworkers considering such applications must satisfy themselves that: •

The employer has provided a signed statement of the main details of the post, and confirming that the applicant has been employed outside the UK as a representative of a firm that has its headquarters and principal place of business outside the UK and has no branch, subsidiary or other representative in the UK; and

•

The applicant intends to work as a senior employee with full authority to take operational decisions on behalf of the overseas firm for the purpose of representing it in the UK by establishing and operating a registered branch or wholly owned subsidiary of that overseas firm; and

•

The applicant is not a majority shareholder in that overseas firm.

10.3 Further Guidance Sole Representative Agents Sole Representatives must be employed by the overseas firm direct (although they may later be employed by the UK subsidiary). Agents who are hired to market the company's product here are normally self-employed and provide their services for a fee. Such people cannot therefore qualify as Sole Representatives. Nor can sales representatives or others such as buyers who fulfil a single function only. However senior sales staff that have other responsibilities such as marketing and distribution are not excluded from qualifying as Sole Representatives. Time spent in the UK Sole representatives are expected to base themselves in the UK for a minimum of 9 months of the year. However it is possible to approve applications from those who intend to spend less time in the UK provided that the additional absences are essential to the running of the UK business (e.g. if the UK office is to be the centre of European operations). Other applicants who intend to spend less time in the UK should be advised to apply instead as business visitors. Additional Work Sole Representatives cannot take other work in addition to their Sole Representative duties, including acting as representative of another overseas firm. Page 67 of 79

Sole representatives as shareholders Majority shareholders in the parent company are not eligible for entry as sole representatives. If the applicant has shareholdings in excess of 30% caseworkers should make further enquiries to ensure that the applicant is not the driving force behind the parent company such that his presence in the UK is likely to mean that the centre of operations will shift to the UK. In such cases the application should be refused. 10.4 Refusal Formulae If the letter is to be refused, use letter ICD 3350: A2 Refusal – Sole Reps.

11. TEACHERS AND LANGUAGE ASSISTANTS COMING TO THE UNITED KINGDOM UNDER APPROVED EXCHANGE SCHEMES 11.1 Introduction In general, teachers from Bulgaria or Romania who are suitably qualified may only come to the UK for full-time employment by obtaining a letter of approval under the work permit arrangements. However, teachers and language assistants coming to schools in the UK under approved exchange schemes may be admitted without work permits. Language assistants sponsored by the British Council’s Education and Training Group are normally employed for not more than 12 hours a week for one academic year, but may work more hours provided the Education and Training Group is in agreement. 11.2 Criteria Caseworkers considering such applications must satisfy themselves that: •

The applicant has provided evidence that they will work at an educational establishment in the UK under an exchange scheme approved by the Department for Education and Skills, the Scottish or Welsh Office of Education or the Department of Education Northern Ireland, or administered by the British Council’s Education and Training Group.

11.3 Further Guidance Private Educational Establishments Where arrangements are made under the auspices of the British Council’s Education and Training Group, exchange teachers or language assistants coming to private educational establishments may be admitted, subject to the same requirements as teachers and language assistants coming to state schools. Where private schools have made their own arrangements, a letter of approval under the work permit arrangements is required. Contact Details Page 68 of 79

Education and Training Group British Council 10 Spring Gardens London SW1A 2BN Tel: +44 (0)20 7389 4004 www.britishcouncil.org/education 11.4 Refusal Formulae If the letter is to be refused, use letter ICD 3353: A2 Refusal – Teacher or Language Assistant.

12. OVERSEAS-QUALIFIED NURSES 12.1 Introduction These arrangements relate to overseas-qualified nurses who have been accepted on supervised practice placements or adaptation courses leading to registration as a nurse with the Nursing and Midwifery Council (NMC). In order to practice in the United Kingdom, all overseas-qualified nurses must be registered with the NMC. The Overseas Nurses Programme was created so that every overseas-qualified nurse will be assessed to a uniformly high standard before achieving registration with the NMC. The first stage in the process is for overseas-qualified nurses to apply to the NMC for a thorough assessment of their skills and experience. The NMC will assess each applicant and issue a decision letter stating whether they are required to undertake a 20-day period of protected learning time or a period of supervised practice (which will incorporate the 20-day period of protected learning time). Where an overseas qualified nurse is only required to undertake the 20-day period of protected learning and has an offer of employment, they may qualify for the issue of a work permit. Those required to undertake a period of supervised practice under the Overseas Nurses Programme should be dealt with in accordance with this instruction, as they will not qualify for an approval letter. 12.2 Criteria Caseworkers considering such applications must satisfy themselves that: •

The applicant has provided a confirmation letter from the Nursing and Midwifery Council that he/she is eligible for admission to the Overseas Nurses Programme; and

•

The applicant has enclosed a letter from an education provider that is recognised by the Nursing and Midwifery Council, confirming they have been offered a supervised practice placement. A list of approved providers is available on the NMC website (www.nmc-uk.org). Page 69 of 79

12.3 Further Guidance The NMC decision letter will contain a unique personal reference number (PRN), which can be verified by the NMC to ensure the letter is genuine. If the caseworker has any doubts that the letter is genuine, they should contact the NMC on 020 7333 6600. NMC decision letters are valid for two years. Older decision letters may not make specific mention of the Overseas Nurses Programme, but may be accepted as long as the letter has not expired. 12.4 Refusal Formulae If the letter is to be refused, use letter ICD 3356: A2 Refusal – Overseas Qualified Nurse.

13 AUTHORISED FAMILY MEMBERS The Regulations create a category of authorised family members. They will be issued with an Accession Worker Card in respect of a specific job but the issuance of the card will not be subject to a skills test or a resident labour market test. 13.1 Criteria Case workers must be satisfied that: (i) the applicant is an authorised family member. To qualify the applicant must be the family member of a person who is subject to worker authorisation and has a valid work authorisation document (other than a SAWS work card, or an Accession Worker Card issued for employment as an au pair or under Sectors Based Scheme arrangements). The application form also requires the applicant to provide evidence that the relationship between the applicant and the principal is as claimed. For the purposes o this category a “family member” is a person as defined in regulation 7 of the Immigration (EEA) Regulations 2006 i.e.: • •

a spouse or civil partner; or a direct descendant of his, his spouse or his civil partner who is under 21.

We will not treat dependant direct descendants over 21 or dependant direct relatives in the ascending line as an authorised family member since, by definition, if they are in employment they cease to be dependant. (ii) they have an offer of employment. Approval of the application is not subject to a skills test or resident labour market test. Nor do the Regulations provide for refusal of the application if the employment is not, or does not appear to be, compliant with NMW or Working Time Directive requirements. 13.2 Refusal formulae Page 70 of 79

If the letter is to be refused, use letter ICD 3342: A2 Refusal – Authorised Family Member.

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ANNEX B: CHARITABLE ORGANISATIONS REGULARLY ENGAGING VOLUNTARY WORKERS Amnesty International ATD - Fourth World (Aide a Toute Detresse) Camphill Village Trust Ltd (See ISBI on Rudolph Steiner Establishments) Christian Aid Leonard Cheshire Foundation (Cheshire Homes) Church of England Children's Society (The Children's Society) Community Service Volunteers Corrymeela Community Cyrenians Dr Barnardos Friends of the Earth GAP Activity projects Ltd Guide Association Inter-Action International Voluntary Service L'Arche Lee Abbey National Council of YMCA's Oxfam Salvation Army Samaritans Incorporated Save the Children Fund Scout Association Simon Community Society of Friends (Quakers) Sue Ryder Foundation Time for God Winged Fellowship Trust Community Service Volunteers (CSV) CSV is a registered charity which arranges for voluntary workers to come to the United Kingdom to work for various bodies. As a concession to CSV we do not require the organisations that the voluntary workers work to be registered charities, but these voluntary workers must meet the rest of the criteria set out in above to qualify under the concession. Corrymeela Community This organisation operates in Northern Ireland to help bridge the divide between the two communities. This work is strongly supported by the Northern Ireland Office. L'Arche Communities L'Arche is an international federation of communities in which handicapped people and those who help them live, work and share their lives together. There are 7 such communities in the United Kingdom which are listed below. Page 72 of 79

L'Arche voluntary workers L'Arche is a registered charity and overseas nationals coming to the United Kingdom to work at a L'Arche community as voluntary assistants should be considered under the concession. Such posts may be of a supervisory nature, such as care managers, house leaders or workshop leaders. L'Arche communities in the United Kingdom SECRETARIAT:

BELFAST:

BOGNOR REGIS:

BRECON:

EDINBURGH:

INVERNESS:

KENT:

LAMBETH: LIVERPOOL:

10 Briggate Silsden KEIGHLEY West Yorkshire BD20 9JT L’Arche Belfast Office Floor 6 Howard House 1–3 Brunswick Street BELFAST BT2 7GE Bradbury House 51a Aldwick Road BOGNOR REGIS West Sussex PO21 2NJ Steeple House Steeple Lane BRECON Powys LD3 7DJ 132 Constitution Street Leith EDINBURGH EH6 6AJ Braerannoch 13 Drummond Crescent INVERNESS IV2 4QR Little Ewell Barfrestone DOVER Kent CT15 7JJ 15 Norwood High Street LONDON SE27 9JU The Ark Lockerby Road Page 73 of 79

PRESTON:

LIVERPOOL L7 0HG 3 Moor Park Avenue PRESTON PR1 6AS

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ANNEX C: RULES CHANGE This Statutory Instrument has been made in consequence of a defect in SI 2006/3317and S.I. 2004/1219 and is being issued free of charge to all known recipients of those Statutory Instruments.

STATUTORYINSTRUMENTS

2007 No. 3012 IMMIGRATION The Accession (Worker Authorisation and Worker Registration) (Amendment) Regulations 2007 Made - - - - 23rd October 2007 Laid before Parliament 25th October 2007 Coming into force - - 19th November 2007

The Secretary of State, being a Minister designated (a) for the purpose of section 2(2) of the European Communities Act 1972(b) in relation to measures relating to the right of entry into, and residence in, the United Kingdom and access to the labour market of the United Kingdom, in exercise of the powers conferred upon him by that section, makes the following Regulations: Citation, commencement and interpretation 1.—(1) These Regulations may be cited as the Accession (Worker Authorisation and Worker Registration) (Amendment) Regulations 2007 and shall come into force on 19th November 2007. (2) In these Regulations “2006 Accession Regulations” means the Accession (Immigration and Worker Authorisation) Regulations 2006(c). Amendment of the 2006 Accession Regulations 2.—(1) The 2006 Accession Regulations are amended as follows. (2) In regulation 2 (“Accession State national subject to worker authorisation”) — (a) after paragraph (6) insert the following paragraph— “(6A) A national of Bulgaria or Romania is not an accession State national subject to worker authorisation during any period in which he is a member of a mission or other person mentioned in section 8(3) of the 1971 Act (member of a diplomatic mission, the family member of such a person, or a person otherwise entitled to diplomatic immunity), other than a person who, under section 8(3A) of that Act, does not count as a member of a mission for the purposes of section 8(3).”; (b) for paragraph (8) substitute— “(8) A national of Bulgaria or Romania is not an accession State national subject to worker authorisation during any period in which he is a family member of — (a) S.I. 2000/1813 and S.I. 2004/706. (b) 1972 c. 68. (c) S.I. 2006/3317, amended by S.I. 2007/475.

(a) an EEA national who has a right to reside in the United Kingdom under the 2006 Regulations, other than — (i) an accession State national subject to worker authorisation; or (ii) a person who is not an accession State national subject to worker authorisation solely by virtue of being the family member of a person mentioned in subparagraph (b); or Page 75 of 79

(b) an accession State national subject to worker authorisation who has a right to reside under regulation 14(1) of the 2006 Regulations by virtue of being a self employed person, a self-sufficient person or a student falling within sub-paragraph (c), (d) or (e) of regulation 6(1) of those Regulations (“qualified person”).”; (c) in paragraph (12)(a), insert the following paragraph after sub-paragraph (i)— “(ia) he was exempt from the provisions of the 1971 Act by virtue of section 8(3) of that Act; or”. (3) In regulation 3 (authorised family member), for paragraph (1) substitute — “(1) A person is an authorised family member for the purposes of these Regulations if he is the family member of an accession State national subject to worker authorisation who has a right to reside in the United Kingdom under regulation 14(1) of the 2006 Regulations as a worker, unless— (a) that worker is only authorised to work under these Regulations by virtue of holding an accession worker card issued in accordance with regulation 11 pursuant to an application as an authorised family member; or (b) that worker is working as an au pair, a seasonal agricultural worker or under the Sectors Based Scheme.”. (4) In regulation 4 (“highly skilled person”), for sub-paragraphs (i) and (ii) in paragraph (1)(b) substitute— “(i) a Higher National Diploma awarded by a relevant institution in Scotland; or (ii) a degree, postgraduate certificate or postgraduate diploma awarded by a relevant institution in the United Kingdom.”. Amendment of the Accession (Immigration and Worker Registration) Regulations 2004 3. In regulation 2 of the Accession (Immigration and Worker Registration) Regulations 2004(a) (“Accession State worker requiring registration”) — (a) after paragraph (5) insert the following paragraph — “(5A) A national of a relevant accession State is not an accession State worker requiring registration during any period in which he is a member of a mission or other person mentioned in section 8(3) of the 1971 Act (member of a diplomatic mission, the family member of such a person, or a person otherwise entitled to diplomatic immunity), other than a person who, under section 8(3A) of that Act, does not count as a member of a mission for the purposes of section 8(3).”; (b) in paragraph (6)(b), for sub-paragraph (iii) substitute— “(iii) an accession State national subject to worker authorisation who only has a right to reside under regulation 13 of those Regulations or under regulation 14 of those Regulations by virtue of being treated as a worker for the purpose of the definition of “qualified person” in regulation 6(1) of those Regulations.”; (c) in paragraph (7)— (i) in sub-paragraph (a), after sub-paragraph (i) insert the following paragraph— “(ia) he was exempt from the provisions of the 1971 Act by virtue of section 8(3) of that Act; or”; (ii) in sub-paragraph (c), for “paragraph (5) or (6)” substitute “paragraph (5), (5A) or (6)”. (a) S.I. 2004/1219; the relevant amending instruments are S.I. 2006/3317 and S.I. 2007/475.

Transitional provision 4. Regulation 3(1) of the 2006 Accession Regulations (authorised family member), as in force immediately before the date on which these Regulations come into force, shall continue to apply for the purpose of determining an application made in accordance with regulation 10 of the 2006 Accession Regulations (application for an accession worker card) before that date by a person who was an authorised family member under regulation 3(1), as then in force, when the application was made. Page 76 of 79

Liam Byrne Minister of State

Home Office 23rd October 2007

EXPLANATORY NOTE (This note is not part of the Regulations) These Regulations amend the Accession (Immigration and Worker Authorisation) Regulations 2006 and the Accession (Immigration and Worker Registration) Regulations 2004. The 2006 Accession Regulations make provision in relation to the entitlement of nationals of Bulgaria and Romania to reside and work in the United Kingdom on the accession of those States to the European Union on 1st January 2007. In particular, the Regulations restrict access to the United Kingdom labour market by Bulgarian and Romanian nationals. The Accession Treaty for Bulgaria and Romania (signed in Luxembourg on 25th April 2005) provides that existing member States can, as a derogation from the usual position under European Community law, regulate access to their labour markets by Bulgarian and Romanian nationals (the “labour market derogation”). The restrictions on access to the United Kingdom labour market in the 2006 Accession Regulations were imposed on the basis of that derogation. The labour market derogation provides that the restrictions imposed on access to the labour market must not be more restrictive than those prevailing on the date of signature of the Accession Treaty (the “standstill clause”). At that date Bulgarian and Romanian nationals falling within section 8(3) of the Immigration Act 1971 (members of a diplomatic mission, members of their families and persons otherwise entitled to diplomatic immunity)were exempt from immigration control and could work in the United Kingdom without restriction. Given the standstill clause such persons should be exempt from the labour market restrictions imposed by the 2006 Accession Regulations. The amendments to the 2006 Accession Regulations made by regulation 2(2)(a) and (c) of these Regulations exempt such persons from the restrictions on labour market access. The labour market derogation also allows Member States to restrict access to their labour markets by family members of Bulgarian and Romanian workers. The provision in the 2006 Accession Regulations dealing with this restriction also covers the family members of Bulgarian and Romanian nationals who are self-employed, self-sufficient or students. This goes beyond the scope of the derogation. Regulation 2(2)(b) of these Regulations therefore amends the relevant provision in the 2006 Accession Regulations so that it only applies to the family members of Bulgarian and Romanian workers. Regulation 2(3) makes a consequential amendment to the definition of ‘authorised family member’ in regulation 3 of the 2006 Accession Regulations. Regulation 4 of these Regulations contains a transitional provision to ensure that the amendment to the definition of ‘authorised family member’ does not affect applications by Bulgarian and Romanian nationals for authorisation to work made prior to these Regulations coming into force. Regulation 4 of the 2006 Accession Regulations defines “highly skilled person”. A Bulgarian and Romanian national who is a highly skilled person is able to work under the 2006 Accession Regulations without authorisation. “Highly skilled person” is partly defined by reference to having a qualification in a subject approved for the purpose of the Science and Engineering Graduates scheme referred to in the Immigration Rules. This scheme has been replaced by a new graduate scheme for the purpose of the Immigration Rules. Under the new scheme qualifications no longer have to be in an approved subject. Regulation 2(4) of these Regulations amends regulation 4 of the 2006 Accession Regulations to take account of the new graduate scheme. This will ensure that Bulgarian and Romanian nationals benefit from the change introduced by the new graduate scheme. The 2004 Accession Regulations impose similar restrictions on access to the United Kingdom labour market by nationals of the Czech Republic, the Republic of Estonia, the Republic of Latvia, the Republic of Lithuania, the Republic of Hungary, the Republic of Poland, the Republic of Slovenia and the Slovak Republic (the Page 77 of 79

“relevant 2004 accession States”) following the accession of those States to the European Union on 1st May 2004. These restrictions are imposed pursuant to a labour market derogation in the Accession Treaty for those States (signed at Athens on 16th April 2003). Regulations 3(a) and (c) of these Regulations amend the 2004 Accession Regulations so that nationals from the relevant 2004 accession States who were exempt from immigration control under section 8(3) of the Immigration Act 1971 are exempt from the restrictions on labour market access set out in the 2004 Accession Regulations. This complies with the standstill clause in the Accession Treaty for the relevant 2004 accession States. Regulation 3(b) of these Regulations amends the 2004 Accession Regulations so that nationals of the relevant 2004 self-sufficient or students are exempt from the labour market restrictions set out in the 2004 Accession Regulations. The labour market derogations in the Accession Treaties do not provide for restrictions to be imposed on such family members.

£3.00 Crown copyright 2007 Printed and published in the UK by The Stationery Office Limited under the authority and superintendence of Carol Tullo, Controller of Her Majesty’s Stationery Office and Queen’s Printer of Acts of Parliament. E1494 10/2007 171494T 19585

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ANNEX D: MEMBERS OF DIPLOMATIC MISSIONS This would include: • • •

• •

the head of a mission; all members of the diplomatic staff of foreign and Commonwealth missions; administrative, technical and service staffs of foreign and Commonwealth missions provided they were resident outside the United Kingdom, and were not present in the United Kingdom when offered the post as members of that mission; and if they have not ceased to be a member of that mission after taking up the post. (See paragraph 3 below). This includes diplomatic couriers and members of foreign and Commonwealth missions accredited to countries outside the United Kingdom who are either passing through, or are in, the United Kingdom (and who, if visa nationals, hold the necessary visa) while proceeding to take up or return to their post or when returning to their own country, and any members of their families accompanying them or travelling to join them or to return to their country; any person who belongs to the family and forms part of the household of the member any person entitled to such immunity from jurisdiction conferred on a diplomatic agent (this may include senior officials of organisations to whom the United Kingdom is obliged to grant such agreements with other member states

However, a private servant employed directly by a member of a mission would not qualify for exemption

DEFINITION OF "MEMBERS OF HOUSEHOLDS" The following may be considered as members of diplomatic households: • • • • • •

spouses (except common law spouses or same sex partners); dependent offspring under 18; dependent offspring over 18 who are still in full time education; dependent relatives who formed part of the household abroad (e.g. elderly widowed parent); other close relatives who have no one else to look after them (e.g. young orphaned brothers and sisters). unmarried partners (common law or same sex relationships) where the relationship is recognised as durable by the sending State and is one that is akin to marriage and that the parties intend to live together in the United Kingdom for the duration of the posting

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