Law Centre (NI) Information Briefing

March 2007

Romanian & Bulgarian nationals

who have worked in the UK on the Sector Based Scheme (SBS)

This briefing differs from other Law Centre Briefings as it is in letter format, and is addressed to A2 nationals.

Dear Friend

YOUR RIGHTS TO WORK IN THE UK

Law Centre (NI), a charity providing free legal advice in a number of areas including employment and immigration, has been assisting a number of Romanian individuals in the past couple of months, advising as to whether they can obtain full European Union rights to work in the UK. Following a meeting on 14 March 2007 with Billie Gallagher from Bakers’ Union and Dan Koshe who advised us that he has been assisting some of the Romanian workers, Law Centre (NI) agreed to set out the current legal position.

OBTAINING FULL RIGHTS TO WORK IN THE UK

As you are aware, from 1 January 2007 when Romania and Bulgaria became part of the European Union, the UK restricted the access of Bulgarian and Romanian nationals to employment in the UK. This means in practice that the majority of Romanian and Bulgarian nationals can only work in the UK if they have a work permit, for example under the Sector Based Scheme (SBS). However, if a Romanian or Bulgarian national has been working for twelve months continuously (with no more than thirty days break in employment) in the UK and those twelve months finish after 31 December 2006, they will be able to obtain full European Union (EU) rights to work in the UK without restriction.

SBS PERMITS AND TWELVE MONTHS CONTINUOUS WORK

Unfortunately, it is not possible for an individual issued with an SBS permit in 2006 to accumulate twelve months continuous work in the UK under a single SBS permit. This is because the twelve months commenced on the date the work permit was granted at the British Embassy in Romania. Therefore, even if someone came into the UK one or two days after the day they obtained the visa, they will still be one or two days short of a full twelve months, and therefore not eligible for full EU rights as a worker.

There was some confusion in relation to this issue at the Home Office, but Work Permits UK (part of the Home Office) has now confirmed that this is the position. We understand that SBS employers have been dismissing Romanian individuals before they have been able to complete a full twelve months work in the UK. The reason for this is that the SBS work permit finishes twelve months from the date it was issued at the Embassy, not twelve months from the day the individual starts work.

THE CURRENT POSITION

After a series of discussions between Work Permits UK and Law Centre (NI), Work Permits UK has now confirmed that if Romanian or Bulgarian nationals are able to obtain new SBS permits (either with their current employer or another employer in the UK) they will issue approval letters and subsequently Accession Worker Cards without the need for the individual to return home to Romania or Bulgaria.This will be dependent on your current or another employer offering you a new SBS work permit and you obtaining an Accession Worker Card without having a break of more than thirty days between the old job and the new job.

We understand that in practice, the problem may be the reduced maximum 'quota' in the whole of the UK for SBS work permits and also the fact that employers have to, by law, fill any vacancies from the resident work force before offering the job to a Romanian or Bulgarian national. In summary therefore the current position is as follows for different categories of SBS workers in Northern Ireland:

1 Those currently on SBS work permit who entered the UK before 31 December 2006

Your SBS employer may have to dismiss you before you have achieved full EU worker rights because your SBS twelve months work permit started on the day your visa was issued at the Embassy in Romania. However, you should approach your employer immediately so that the employer can make an application for a fresh permit six weeks before the expiry of your current permit. You do not need to use an agent or leave the country. If your employer (or another SBS employer either in Northern Ireland or elsewhere in the UK) agrees, they may be able to obtain a letter of approval for you and you will then be able to obtain an Accession Worker Card. However, your employer will have to show that there is no-one else available within the resident labour market to fill the job. This would include all other EU nationals and even if there is quota available, this may mean that your employer is unable to offer you an SBS work permit.

It is important that you approach your employer now. If they are able to get another work permit for you, this process and obtaining the Accession Worker Card may take at least six weeks. It is essential that there is not a break of more than 30 days between the ending of the old work permit and you commencing your new employment.

Once you have commenced that employment and built up twelve months in total you may then apply for your Registration Certificate confirming your full EU worker rights.

2 Those who came before 31 December 2006 and were dismissed less than 30 days ago

You should also approach an employer immediately to see if they can obtain a new SBS work permit for you and make a fresh application. If they are willing to do this, this should be done without delay and your employer should be asked to raise the issue of the 30 days specifically with Work Permits UK. Work Permits UK may be able to process this urgently, but unfortunately there is no guarantee. As the law currently stands, if your new Accession Worker Card is not obtained within 30 days of being dismissed, then you will have lost the opportunity to continue building up twelve months legal work in the UK and would have to start the twelve months again.

3 Those who were on SBS work permits and were dismissed more than 30 days ago

As more than 30 days has elapsed since the first employment ended, the only way for individuals in this situation to build up twelve months is by obtaining new SBS work permits and start building the twelve months again. We would suggest individuals in this particular situation approach Law Centre (NI) individually for free legal advice about their particular circumstances.

4 First time applicants for SBS work permits after January 2007

The process for those who commence work after January 2007 is for the employer to obtain a work permit/letter of approval and the employee to obtain an Accession Worker Card. The twelve month period (in order to gain full EU worker rights) starts then.

5 Other options

All Romanian and Bulgarian nationals have full EU treaty rights in all areas except as workers. Therefore you may establish yourself as self employed, providing you register with the Inland Revenue. You can obtain a registration certificate from the Home Office to confirm this. Once you have been self employed for a continuous period of five years in the UK you can apply for permanent residence in the UK. If this is granted you would then have no restriction on employment.

You are also permitted to study in the UK. Providing you are attending an accepted educational institution and following a proper course of study you can work for up to twenty hours a week in term time without obtaining a work permit. However, you will obviously need to pay any student fees associated with your study and be following the course. If you wish to work part-time, you will need to obtain a registration certificate from the Home Office to confirm that you are a student.

FURTHER LEGAL ADVICE

Your local Citizen’s Advice Bureau has been providing a lot of advice in relation to these issues. Unfortunately there has been a lot of confusion at the Home Office and it has only been recently that we have been able to confirm the above position.
Law Centre (NI) attended a meeting at the Ballymena Community Forum on 14 March 2007 to explain this position to workers. Unfortunately none of the workers attended that meeting. Therefore we thought it useful if we set the position out in this letter. However, please note that the law may change.

Therefore, if you need further legal advice, please attend your local Citizen’s Advice Bureau or contact Law Centre (NI) by telephone during our advice line hours. Both services are free. If you are seeking advice from anyone else in relation to immigration issues you need to ensure that they are either a solicitor or are registered with the Office for Immigration Services Commissioner (OISC) to provide legal advice. It is very important that you do not take immigration advice from any unqualified sources.
We hope this clarifies the matter.

Yours faithfully

Solicitors, on behalf of the Immigration & Employment Units, Law Centre (NI)