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Tim Richards

Clyde & Co


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Legal refresher: European free movement rights and hiring staff from Europe


European free movement rights allowing European nationals to work in other member states is one of the founding principles of the EU and is fast becoming a key political issue. However, many UK employers are left unclear as to which rules apply given the numerous changes over the last ten years depending on the nationality of the candidate. For all EU member states which acceded before May 2004, it is common ground that where a European national is in the UK for more than three months, they must be exercising a Treaty right. This means that they must either be in employment, self-employment, studying or be economically self-sufficient. In such circumstances, prior to the commencement of employment, UK employers can simply take a certified copy of the European national recruit's current passport to be stored on their HR file just as they would with a British citizen.

More recently, the rules have not been so simple given the reluctance of some member states, including the UK, to grant full free movement rights to the new wave of countries which have joined the EU. When the Accession 8 joined the EU in May 2004, including Poland and other countries, unlike most other EU countries the UK decided to allow near full free movement rights to the new member states. Keen to keep tabs on the number of people entering the UK for the purposes of employment, the Worker Registration Scheme (WRS) was implemented. This scheme meant that UK employers had to register the employment of an Accession 8 employee within one month of the employment commencing.  Once the employee had been legally working for 12 months, they were no longer required to register. The UK Government at the time believed that around 15,000 such workers would arrive in the UK to take up employment. In reality, that figure is put in the many hundreds of thousands and the policy has subsequently been labelled as a mistake by ex-cabinet ministers. The relevant EU Directive determines that member states can only derogate from full free movement rights for seven years and so the WRS was deleted in the summer of 2011.

When Romania and Bulgaria joined the EU on 1 January 2007, it was of no huge surprise that the Government was keen not to allow full free movement rights. As a result, before Romanians and Bulgarians can be employed in the UK, unless the candidate qualifies as a highly skilled worker, employers have had to first submit an application under the Business and Commercial Work Permit scheme. That scheme was the forerunner to Tier 2 of the Points Based System, introduced in November 2008. In that way, Romanians and Bulgarians who were to be employed in the UK were in some ways little better off than anyone else from outside the European area.

Mindful of the seven year point on 1 January 2014 after which the UK cannot any longer impose such restrictions, the Government has been busily advertising in Romania and Bulgaria that there are no jobs in the UK and implementing the ill-fated "go home" mobile van campaign. There has also been much talk of whether anything can be done to restrict full free movement rights from 1 January 2014 when Romanians and Bulgarians will be free to take employment in the UK without any prior permission needing to be sought. There have been many headlines in this regard, but given free movement is integral to the EU, it does not appear that the Government will be able to make any last ditch attempt to remove the UK from this requirement. Whilst the Government points to its policy to restrict benefit payments to Romanians and Bulgarians who may come to the UK after 1 January 2014 and within the last few days has talked about implementing a cap to limit numbers, the UK has been labelled as the "nasty" country of Europe.

From 1 January 2014, the position in terms of checking right to work documents should be much more straightforward for UK employers. This is because for all nationals who are from member states of the EU, save for one exception, they now have the right to be employed in the UK without any prior permission being sought. As above, UK employers would simply need to take a certified copy of the relevant recruit's current passport prior to commencement of any UK employment. The one exception is for Croatian nationals given that Croatia recently acceded to the EU on 1 July 2013. In keeping with its policy on Bulgarian and Romanian nationals, the Government has decided that Croatian nationals who are to be employed in the UK must first be sponsored by the UK employer, this time under Tier 2 of the Points Based System. The UK's policy decision to reduce access to the labour market for new member states continues.

Many employers may also be familiar with the difficulties in employing non-European family members of a European national who have Family Permits or Residence Cards. For example, where a US national spouse of a French national is to be employed in the UK, what checks does the employer first need to make? The key is to determine what the French national spouse is doing in the UK. Fundamentally, this involves three checks: asking whether the French national is physically in the UK, whether the French national is exercising a Treaty right (commonly it would be wise for UK employers to request sight of a letter from the current employer confirming the ongoing employment in the UK) and establishing from the recruit whether their relationship with the European national is subsisting. Whilst some of these questions for a new employee are potentially sensitive, given that an employment contract should state clearly that an offer of employment is subject to an ongoing right to work in the UK, this should be justifiable. 

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Tim Richards


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