On 1 July 2013, Croatia joined the European Economic Area (EEA) and, as such, Croatian citizens are now able to enter and reside in the UK without needing to acquire a visa – provided they are not an unreasonable burden on public funds.
In order to remain in the UK longer than three months, they must either be employed, self-sufficient, self-employed or a student. Implemented by the Accession of Croatia (Immigration and Worker Authorisation) Regulations 2013, the UK has also opted to apply transitional restrictions on access to the labour market for Croatian nationals.
As is currently the case for Romanian and Bulgarian nationals until the transitional restrictions expire in January 2014, Croatian nationals wishing to work in the UK will need to obtain an accession worker authorisation document prior to commencing employment, unless they fall into certain unrestricted categories. This type of authorisation takes the form of a ‘purple registration certificate’.
Croatian nationals who hold an alternative right to work in the UK are not required to obtain permission from the Home Office. Along with typical exemptions, such as being the spouse of a UK national, having indefinite leave to remain (ILR) or holding nationality from another EEA member state, there are certain exemptions which are particularly pertinent for employers to bear in mind:
- Croatian nationals who have been working in the UK with permission for a continuous period of 12 months as at or after 30 June 2013 may continue to work in the UK without permission from the Home Office, although they do have the option of applying for a ‘blue registration certificate’ in order to evidence their right to work in the UK.
- Highly skilled persons who either meet the requirements of the Tier 1 (Exceptional talent) category of the points-based system (PBS) or who, in the 12 months preceding the date of an application for a ‘blue registration certificate’, have been awarded a qualifying degree from a UK higher education institution are exempt from the requirements of the Accession Regulations.
- Any EEA national or their family member can acquire ILR, following residence of a continuous period of five years or more, in accordance with Regulation 15 of the EEA Regulations 2006.
- Posted workers (ie those workers falling within Article 1(3) of the Posted Workers Directive) are exempt from obtaining a registration certificate, although they cannot benefit from full worker authorisation exemption by virtue of working for 12 months as a posted worker. Such an employee must be working for a business which is established in another member state and posted to the UK to supply a service to a client in the UK.
In addition to the above, Croatian nationals who are students in the UK are permitted to work full time during vacations and for up to 20 hours per week during term time, provided they have obtained a ‘yellow registration certificate’. Those who are self-employed are able to apply for the same certificate to confirm their right to work, but permission is not required from the Home Office.
In order to obtain a registration certificate for a Croatian national, employers must have a sponsor licence. A certificate of sponsorship must then be assigned to the relevant worker under either the Tier 2 or the Tier 5 category of the PBS to support the applicant’s application for a ‘purple registration certificate’. Once permission to work is received, the worker will be restricted to working only for their sponsor and in the job they have been employed to do. A certificate of sponsorship is not required when employers wish to employ any of the following:
- foundation programme doctor or dentist;
- domestic worker in a private household;
- representative of an overseas business.
EMPLOYERS’ DUTIES
Employers have a duty to prevent illegal working. Document checks should be carried out to ensure that any prospective employee either holds a worker authorisation document for the specific type of work in question, or is exempt from work authorisation. It is vital to ensure that documents are validated, copied and certified on the employee’s first day of work.
An employer found to be in breach of the above rules will have committed a civil offence under s11(1) of the 2013 Regulations and will be liable to pay a penalty fine. To knowingly employ a Croatian national in breach of the rules is a criminal offence and employers may be liable to a fine and/or six months imprisonment.
Clearly, employers who have previously dealt with Romanian and Bulgarian nationals will be at an advantage given the similar transitional provisions which were applied to nationals from those countries. For the reasons mentioned above, however, it is important to be vigilant and compliant with the new rules to avoid possible sanctions.
By Ben Sheldrick, partner, and Charlie Westcott, trainee solicitor, Magrath LLP.
E-mail: ben.sheldrick@magrath.co.uk; charlie.westcott@magrath.co.uk.