On 1 July 2013 Croatia became the newest member of the European Union (EU). Henri Krishna outlines the changes.
As has happened when other states joined the EU over the last 10 years, existing member states are allowed to ‘regulate access to their labour markets’ by putting restrictions on Croatian nationals’ rights of free movement under European law to take up employment or seek work. This ‘derogation’ from full rights can be applied for the initial five year accession period and may be extended for a further two years where there may be ‘serious disturbances’ to a state’s labour market.
The UK has chosen to implement such restrictions on Croatian national’s EU rights, and has done so via The Accession of Croatia (Immigration and Worker Authorisation) Regulations 2013.
1 SI 2013 No.1460 These largely mirror the existing restrictions that apply to A2 nationals (Bulgarians and Romanians)
2 See pages 1590–95 of CPAG’s Welfare Benefits and Tax Credits Handbook 2013/14 until the end of this year. They require those who wish to work as an employee to seek prior authorisation unless specifically exempt, and exclude those subject to authorisation from the definition of jobseeker or from retaining worker status under the Immigration (European Economic Area) Regulations 2006.
3 SI 2006 No.1003The effect in terms of social security entitlement is that accession state nationals could be excluded from means-tested benefits, child benefit and child tax credit as they:
•might not have a right to reside as an European Economic Area (EEA) worker unless in authorised work;
•might not retain worker status if they leave authorised work; and
•might not have a right to reside while seeking work.
While in authorised work, a Croatian national has all the same rights as any other EEA worker.
4 Reg 5(1) The Accession of Croatia (Immigration and Worker Authorisation) Regulations 2013 No.1460 (‘Accession Regs’)Restrictions do not apply to the exercise of other rights of free movement by Croats as self-employed persons, self-sufficient persons or students.
The usual route to exemption from prior work authorisation is to complete a continuous 12 month period of such work, but the regulations list a number of other circumstances where accession state nationals may be exempt.
5 Reg 2 Accession RegsWhile the list of exemptions is broadly the same for both A2 and Croatian nationals, with the transposition of the appropriate dates, there are a number of notable and significant differences in the detail.
•Croatian nationals who prior to 1 July 2013 were legally working when entitled to reside in the UK under the Immigration (European Economic Area) Regulations 2000 cannot count this towards the 12 months continuous authorised work. The definition of when a Croatian national was legally working in the UK prior to 1 July 2013 includes those exempt from provisions of the Immigration Act 1971 by section 8(2) of that Act, but the Secretary of State has not made such an exemption.
•Croatian nationals who are currently exempt from the provisions of the Immigration Act 1971 by section 8(2) of that Act are also exempt from worker authorisation.
•A Croatian national is not subject to worker authorisation if s/he is also an A2 national who is working in accordance with the worker authorisation provisions for A2 nationals.
•Croat family members of:
•UK nationals; of
•those allowed to work in accordance with leave granted under Immigration Act 1971 or who are settled under that Act, not subject to authorisation include unmarried or same sex partners. The definition of ‘unmarried or same sex partner’ is someone in a ‘durable relationship with another’.
6 Reg 1 Accession Regs •Croat family members of EEA nationals with a right to reside are not subject to worker authorisation, unless they are the family member of a Croatian or A2 national with a right to reside who is subject to worker authorisation. If the latter applies, they are not subject to authorisation only if:
– they are the spouse, civil partner, unmarried or same sex partner of that person; or
– a direct descendant of the person, their spouse or civil partner, who is under 21 or dependant on them, their spouse or civil partner.
Note that the normal definition of family member of an EEA national, without the addition of unmarried or same sex partners, applies for Croatian nationals who are family members of other EEA nationals who have a right to reside.
•The definition of ‘highly skilled person’ is amended to reflect the current immigration rules.
7 Reg 3(1)(a) Accession Regs •Croat students not subject to worker authorisation include those granted leave as such under the Immigration Act 1971 working in accordance with that leave.
Most notable is the inclusion of Croat unmarried and same sex partners as family members in some circumstances, and the exclusion of certain Croat family members of EEA national with a right to reside (those who are dependent in the ascending line) from exemption where the EEA national with the right to reside is a Croat or A2 national subject to authorisation themselves. The latter differs from the restrictions on A2 nationals in that the equivalent exclusion only applies to A2 national family members of A2 nationals in authorised work and specifically does not include family members of A2 nationals who have a right to reside on another basis – ie, self-employed, self-sufficient or students.
8 Reg 2(13)-(14) Accession Regs as opposed to reg 2(8)-(8A) The Accession (Immigration and Worker Authorisation) Regulations 2006 No.3317 However, this may be a drafting oversight rather than the intention.
9 For a comparison of contrasting government interpretations of this regulation see paragraph 19.10 of the DWP’s Memo DMG 15/13 and eighth bullet point paragraph 6 of UKBA’s Guidance for Nationals of Croatia on Obtaining Permission to Work in the UK.Otherwise Croats are exempt from worker authorisation in the same way as A2 nationals described on pages 1593–94 of the Welfare Benefits and Tax Credits Handbook 2013/2014.