The Accession (Immigration and Worker Authorisation) Regulations 2006

PART 1 General

Citation, commencement, interpretation and consequential amendments

1.—(1) These Regulations may be cited as the Accession (Immigration and Worker Authorisation) Regulations 2006 and shall come into force on 1st January 2007.

(2) In these Regulations—

(a) “the 1971 Act” means the Immigration Act 1971(1);

(b) “the 2006 Regulations” means the Immigration (European Economic Area) Regulations 2006(2);

(c) “accession period” means the period beginning on 1st January 2007 and ending on 31st December 2011;

(d) “accession State national subject to worker authorisation” has the meaning given in regulation 2;

(e) “accession worker authorisation document” shall be interpreted in accordance with regulation 9(2);

(f) “authorised category of employment” means a category of employment listed in the first column of the table in Schedule 1;

(g) “authorised family member” has the meaning given in regulation 3;

(h) “civil partner” does not include a party to a civil partnership of convenience(3);

(i) “EEA State” means—

(i) a member State, other than the United Kingdom;

(ii) Norway, Iceland or Liechtenstein;

(iii) Switzerland;

(j) “employer” means, in relation to a worker, the person who directly pays the wage or salary of that worker;

(k) “family member” shall be interpreted in accordance with regulation 7 of the 2006 Regulations;

(l) “highly skilled person” has the meaning given in regulation 4;

(m) “immigration rules” means the rules laid down as mentioned in section 3(2) of the 1971 Act applying on 1st January 2007(4);

(n) “letter of approval under the work permit arrangements” has the meaning given in paragraph 1(b) of Schedule 1;

(o) “registration certificate” means a certificate issued in accordance with regulation 16 of the 2006 Regulations;

(p) “relevant requirements” means, in relation to an authorised category of employment, the requirements set out in the second column of the table in Schedule 1 for that category;

(q) “Sectors Based Scheme” has the meaning given in paragraph 1(f) of Schedule 1;

(r) “spouse” does not include a party to a marriage of convenience;

(s) “student” has the meaning given in regulation 4(1)(d) of the 2006 Regulations;

(t) “worker” means a worker within the meaning of Article 39 of the Treaty establishing the European Community(5), and “work” and “working” shall be construed accordingly.

(3) Schedule 2 (consequential amendments) shall have effect.

“Accession State national subject to worker authorisation”

2.—(1) Subject to the following paragraphs of this regulation, in these Regulations “ accession State national subject to worker authorisation” means a national of Bulgaria or Romania.

(2) A national of Bulgaria or Romania is not an accession State national subject to worker authorisation if he has leave to enter or remain in the United Kingdom under the 1971 Act and that leave is not subject to any condition restricting his employment.

(3) A national of Bulgaria or Romania is not an accession State national subject to worker authorisation if he was legally working in the United Kingdom on 31st December 2006 and had been legally working in the United Kingdom without interruption throughout the period of 12 months ending on that date.

(4) A national of Bulgaria or Romania who legally works in the United Kingdom without interruption for a period of 12 months falling partly or wholly after 31st December 2006 shall cease to be an accession State national subject to worker authorisation at the end of that period of 12 months.

(5) A national of Bulgaria or Romania is not an accession State national subject to worker authorisation during any period in which he is also a national of—

(a) the United Kingdom; or

(b) an EEA State, other than Bulgaria or Romania.

(6) A national of Bulgaria or Romania is not an accession State national subject to worker authorisation during any period in which he is the spouse or civil partner of a national of the United Kingdom or of a person settled in the United Kingdom.

(7) A national of Bulgaria or Romania is not an accession State national subject to worker authorisation during any period in which he has a permanent right of residence under regulation 15 of the 2006 Regulations.

(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 an EEA national who has a right to reside in the United Kingdom under the 2006 Regulations, unless that EEA national is—

(a) an accession State national subject to worker authorisation; or

(b) a student who is not an accession State national subject to worker authorisation solely by virtue of falling within paragraph (10).

(9) A national of Bulgaria or Romania is not an accession State national subject to worker authorisation during any period in which he is a highly skilled person and holds a registration certificate that includes a statement that he has unconditional access to the United Kingdom labour market.

(10) A national of Bulgaria or Romania is not an accession State national subject to worker authorisation during any period in which he is in the United Kingdom as a student, does not work for more than 20 hours a week and holds a registration certificate that includes a statement that he is a student who has access to the United Kingdom labour market for 20 hours a week.

(11) A national of Bulgaria or Romania is not an accession State national subject to worker authorisation during any period in which he is a posted worker.

(12) For the purposes of paragraphs (3) and (4) of this regulation—

(a) a person working in the United Kingdom during a period falling before 1st January 2007 was working legally in the United Kingdom during that period if—

(i) he had leave to enter or remain in the United Kingdom under the 1971 Act for that period, that leave allowed him to work in the United Kingdom, and he was working in accordance with any condition on that leave restricting his employment; or

(ii) he was entitled to reside in the United Kingdom for that period under the Immigration (European Economic Area) Regulations 2000(6) or the 2006 Regulations without the requirement for such leave;

(b) a person working in the United Kingdom on or after 1st January 2007 is legally working during any period in which he—

(i) falls within paragraphs (5) to (10); or

(ii) holds an accession worker authorisation document and is working in accordance with the conditions set out in that document;

(c) a person shall be treated as having worked in the United Kingdom without interruption for a period of 12 months if he was legally working in the United Kingdom at the beginning and end of that period and any intervening periods in which he was not legally working in the United Kingdom do not, in total, exceed 30 days.

(13) In this regulation—

(a) “posted worker” means a worker who is posted to the United Kingdom, within the meaning of Article 1(3) of Directive 96/71/EC concerning the posting of workers(7), by an undertaking established in an EEA State;

(b) the reference to a person settled in the United Kingdom shall be interpreted in accordance with section 33(2A)(8) of the 1971 Act.

Authorised family member

3.—(1) For the purposes of these Regulations a person shall be treated as an authorised family members if he is the family member of—

(a) 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, unless that national only has a right to reside under that regulation by virtue of his status as a worker and he is working as an au pair, a seasonal agricultural worker or under the Sectors Based Scheme; or

(b) a student who is not an accession State national subject to worker authorisation solely by virtue of falling within regulation 2(10).

(2) The spouse or civil partner of a person who has leave to enter or remain in the United Kingdom under the 1971 Act that allows him to work in the United Kingdom shall also be treated as an authorised family member.

“Highly skilled person”

4.—(1) In these Regulations “ highly skilled person” means a person who—

(a) meets the criteria specified by the Secretary of State for the purpose of paragraph 135A(i)(9) of the immigration rules (entry to the United Kingdom under the Highly Skilled Migrant Programme) and applying on 1st January 2007, other than the criterion requiring a proficiency in the English language; or

(b) has been awarded one of the following qualifications and applies for a registration certificate or submits a registration certificate to the Secretary of State under regulation 7(4) within 12 months of being awarded the qualification—

(i) a Higher National Diploma or degree awarded by a relevant institution in Scotland; or

(ii) a degree with second class honours or above in a subject approved by the Department for Education and Skills for the purpose of participation in the Science and Engineering Graduates Scheme(10), or a master’s degree or doctorate in any subject, awarded by a relevant institution in England, Wales or Northern Ireland.

(2) In paragraph (1)(b), “relevant institution” means an institution that is financed from public funds or included on the Department for Education and Skills’ Register of Education and Training Providers(11) on 1st January 2007.

Derogation from provisions of Community law relating to workers

5.  Regulations 6, 7 and 9 derogate during the accession period from Article 39 of the Treaty establishing the European Communities, Articles 1 to 6 of Regulation (EEC) No. 1612/68 on freedom of movement for workers within the Community(12) and Council Directive 2004/38/EC(13) on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States.

PART 2 Immigration

Right of residence of an accession State national subject to worker authorisation

6.—(1) An accession State national subject to worker authorisation shall, during the accession period, only be entitled to reside in the United Kingdom in accordance with the 2006 Regulations, as modified by this regulation.

(2) An accession State national subject to worker authorisation who is seeking employment in the United Kingdom shall not be treated as a jobseeker for the purpose of the definition of “qualified person” in regulation 6(1) of the 2006 Regulations and such a person shall be treated as a worker for the purpose of that definition only during a period in which he holds an accession worker authorisation document and is working in accordance with the conditions set out in that document.

(3) Regulation 6(2) of the 2006 Regulations shall not apply to an accession State national subject to worker authorisation who ceases to work.

Issuing registration certificates and residence cards to nationals of Bulgaria and Romania and their family members during the accession period

7.—(1) Subject to paragraph (2), an accession State national subject to worker authorisation shall not be treated as a qualified person for the purposes of regulations 16 and 17 of the 2006 Regulations (issue of registration certificates and residence cards) during the accession period unless he falls within sub-paragraphs (c), (d) or (e) of regulation 6(1) of the 2006 Regulations.

(2) The Secretary of State shall issue a registration certificate to an accession State national subject to worker authorisation on application if he is satisfied that the applicant—

(a) is seeking employment in the United Kingdom; and

(b) is a highly skilled person.

(3) Where the Secretary of State issues a registration certificate during the accession period to a Bulgarian or Romanian national under paragraph (2) or in any case where he is satisfied that the Bulgarian or Romanian national is not an accession State national subject to worker authorisation, the registration certificate shall include a statement that the holder of the certificate has unconditional access to the United Kingdom labour market.

(4) A Bulgarian or Romanian national who holds a registration certificate that does not include a statement that he has unconditional access to the United Kingdom labour market may, during the accession period, submit the certificate to the Secretary of State for the inclusion of such a statement.

(5) The Secretary of State shall re-issue a certificate submitted to him under paragraph (4) with the inclusion of a statement that the holder has unconditional access to the United Kingdom labour market if he is satisfied that the holder—

(a) is a highly skilled person; or

(b) has ceased to be an accession State national subject to worker authorisation other than solely by virtue of falling within regulation 2(10).

(6) A registration certificate issued to a Bulgarian or Romanian student during the accession period shall include a statement that the holder of the certificate is a student who has access to the United Kingdom labour market for 20 hours a week, unless it includes a statement under paragraph (3) or (5) that the holder has unconditional access to the United Kingdom labour market.

(7) But this regulation is subject to regulation 20 of the 2006 Regulations (power to refuse to issue and to revoke registration certificates).

Transitional provisions to take account of the application of the 2006 Regulations to nationals of Bulgaria and Romania and their family members on 1^st January 2007

8.—(1) Where before 1st January 2007 directions have been given for the removal of a Bulgarian or Romanian national or the family member of such a national under paragraphs 8 to 10A of Schedule 2 to the 1971 Act(14) or section 10 of the 1999 Act, those directions shall cease to have effect on and after that date.

(2) Where before 1st January 2007 the Secretary of State has made a decision to make a deportation order against a Bulgarian or Romanian national or the family member of such a national under section 5(1) of the 1971 Act—

(a) that decision shall, on and after 1st January 2007, be treated as if it were a decision under regulation 19(3)(b) of the 2006 Regulations; and

(b) any appeal against that decision, or against the refusal of the Secretary of State to revoke the deportation order, made under section 63 of the 1999 Act or section 82(2)(j) or (k) of the 2002 Act before 1st January 2007, shall, on or after that date, be treated as if it had been made under regulation 26 of the 2006 Regulations.

(3) In this regulation—

(a) “the 1999 Act” means the Immigration and Asylum Act 1999(15);

(b) “the 2002 Act” means the Nationality, Immigration and Asylum Act 2002(16);

(c) any reference to the family member of a Bulgarian or Romanian national is a reference to a person who on 1st January 2007 acquires a right to reside in the United Kingdom under the 2006 Regulations as the family member of a Bulgarian or Romanian national.

PART 3 Accession State worker authorisation

Requirement for an accession State national subject to worker authorisation to be authorised to work

9.—(1) An accession State national subject to worker authorisation shall only be authorised to work in the United Kingdom during the accession period if he holds an accession worker authorisation document and is working in accordance with the conditions set out in that document.

(2) For the purpose of these Regulations, an accession worker authorisation document is—

(a) a passport or other travel document endorsed before 1st January 2007 to show that the holder has leave to enter or remain in the United Kingdom under the 1971 Act, subject to a condition restricting his employment in the United Kingdom to a particular employer or category of employment;

(b) a seasonal agricultural work card, except where the holder of the card has a document mentioned in sub-paragraph (a) giving him leave to enter the United Kingdom as a seasonal agricultural worker; or

(c) an accession worker card issued in accordance with regulation 11.

(3) But a document shall cease to be treated as an accession worker authorisation document under paragraph (2)—

(a) in the case of a document mentioned in paragraph (2)(a), at the end of the period for which leave to enter or remain is given;

(b) in the case of a seasonal agricultural work card, at the end of the period of six months beginning with the date on which the holder of the card begins working for the agricultural employer specified in the card;

(c) in the case of an accession worker card, on the expiry of the card under regulation 11(7).

(4) For the purpose of this regulation—

(a) “seasonal agricultural work card” means a Home Office work card issued by the operator of a seasonal agricultural workers scheme approved by the Secretary of State for the purpose of paragraph 104(ii) of the immigration rules;

(b) the reference to a travel document other than a passport is a reference to a document which relates to a national of Bulgaria or Romania and which is designed to serve the same purpose as a passport.

Application for an accession worker card

10.—(1) An application for an accession worker card may be made by an accession State national subject to worker authorisation who wishes to work for an employer in the United Kingdom if—

(a) the employment concerned falls within an authorised category of employment; or

(b) the applicant is an authorised family member.

(2) The application shall be in writing and shall be made to the Secretary of State.

(3) The application shall state—

(a) the name, address, and date of birth of the applicant;

(b) the name and address of the employer for whom the applicant wishes to work; and

(c) unless the applicant is an authorised family member, the authorised category of employment covered by the application.

(4) The application shall be accompanied by—

(a) the applicant’s national identity card or passport; and

(b) two passport size photographs of the applicant.

(5) Where the applicant is not an authorised family member, the application shall, in addition to the documents required by paragraph (4), be accompanied by—

(a) where the relevant requirements for the authorised category of employment specified in the application require the applicant to hold a letter of approval under the work permit arrangements, that letter;

(b) where sub-paragraph (a) does not apply, a letter from the employer specified in the application confirming that the applicant has an offer of employment with the employer; and

(c) any other proof that the applicant wishes to provide to establish that he meets the relevant requirements.

(6) Where the applicant is an authorised family member, the application shall, in addition to the documents required by paragraph (4), be accompanied by—

(a) a letter from the employer specified in the application confirming that the applicant has an offer of employment with the employer; and

(b) proof that the applicant is an authorised family member.

(7) In this regulation “address” means, in relation to an employer which is a body corporate or partnership, the head or main office of that employer.

Issuing an accession worker card etc

11.—(1) Subject to paragraph (2), the Secretary of State shall issue an accession worker card pursuant to an application made in accordance with regulation 10 if he is satisfied that the applicant is an accession State national subject to worker authorisation who—

(a) is an authorised family member; or

(b) meets the relevant requirements for the authorised category of employment covered by the application.

(2) The Secretary of State shall not issue an accession worker card if he has decided to remove the applicant from the United Kingdom under regulation 19(3)(b) of the 2006 Regulations (removal on grounds of public policy, public security or public health).

(3) An accession worker card issued under this regulation to an authorised family member shall include a condition restricting the applicant’s employment to the employer specified in the application.

(4) An accession worker card issued under this regulation pursuant to an application that was accompanied by a letter of approval under the work permit arrangements shall include the following conditions—

(a) a condition restricting the applicant’s employment to the employer specified in the application and any secondary employer; and

(b) a condition restricting him to the type of employment specified in the letter of approval under the work permit arrangements.

(5) In any other case, an accession worker card issued under this regulation shall include the following conditions—

(a) a condition restricting the applicant’s employment to the employer specified in the application; and

(b) a condition restricting him to the authorised category of employment specified in the application.

(6) An accession worker card issued under this regulation shall include a photograph of the applicant and shall set out—

(a) the name, nationality and date of birth of the applicant;

(b) the name and address of the employer specified in the application;

(c) the conditions required by paragraph (3), (4) or (5), as the case may be; and

(d) the date on which the card was issued.

(7) An accession worker card shall expire if the holder of the card ceases working for the employer specified in the application.

(8) Where the Secretary of State is not satisfied as mentioned in paragraph (1) or where paragraph (2) applies, he shall refuse the application and issue a notice of refusal setting out the reasons for the refusal.

(9) An accession worker card or notice of refusal issued under this regulation shall be sent to the applicant by post together with the identity card or passport that accompanied the application.

(10) In this regulation, “secondary employer” means, in relation to an applicant, an employer who is not specified in his application and who employs the applicant for no more than 20 hours a week when the applicant is not working for the employer who is specified in the application.

Unauthorised employment of accession State national – employer offence

12.—(1) Subject to paragraphs (2) and (3), an employer who employs an accession State national subject to worker authorisation during the accession period shall be guilty of an offence if—

(a) the employee does not hold an accession worker authorisation document; or

(b) the employee’s accession worker authorisation document is subject to conditions that preclude him from taking up the employment.

(2) Subject to paragraph (4), in proceedings under this regulation it shall be a defence to prove that before the employment began there was produced to the employer a document that appeared to him to be a registration certificate issued to the worker and—

(a) the registration certificate contained a statement that the worker has unconditional access to the United Kingdom labour market; or

(b) the registration certificate contained a statement that the worker is a student who has access to the United Kingdom labour market for 20 hours a week and the employer has not employed that worker for more than 20 hours a week.

(3) Subject to paragraph (4), in proceedings under this regulation it shall be a defence to prove that before the employment began there was produced to the employer a document that appeared to him to be an accession worker authorisation document that authorised the worker to take up the employment.

(4) The defence afforded by paragraph (2) and (3) shall not be available in any case where the employer—

(a) did not take and retain a copy of the relevant document; or

(b) knew that his employment of the worker constituted an offence under this regulation.

(5) A person guilty of an offence under this regulation shall be liable on summary conviction to a fine not exceeding level 5 on the standard scale.

(6) Where an offence under this regulation committed by a body corporate is proved to have been committed with the consent or connivance of, or to be attributable to any neglect on the part of—

(a) any director, manager, secretary or other similar officer of the body corporate; or

(b) any person purporting to act in such a capacity,

he, as well as the body corporate, shall be guilty of an offence and shall be liable to be proceeded against and punished accordingly.

(7) Where the affairs of a body corporate are managed by its members, paragraph (6) shall apply in relation to acts and defaults of a member in connection with his functions of management as if he were a director of the body corporate.

(8) Where an offence under this regulation is committed by a partnership (other than a limited partnership) each partner shall be guilty of an offence and shall be liable to be proceeded against and punished accordingly.

(9) Paragraph (6) shall have effect in relation to a limited partnership as if—

(a) a reference to a body corporate were a reference to a limited partnership; and

(b) a reference to an officer of the body corporate were a reference to a partner.

(10) An offence under this regulation shall be treated as—

(a) a relevant offence for the purpose of sections 28B and 28D of the 1971 Act(17) (search, entry and arrest);

(b) an offence under Part III of that Act (criminal proceedings) for the purposes of sections 28E, 28G and 28H(18) of that Act (search after arrest); and

(c) an offence referred to in section 28AA(19) of that Act (arrest with warrant).

Unauthorised working by accession State national – employee offence

13.—(1) Subject to paragraph (2), an accession State national subject to worker authorisation who works in the United Kingdom during the accession period shall be guilty of an offence if—

(a) he does not hold an accession worker authorisation document; or

(b) he is working in breach of the conditions set out in his accession worker authorisation document.

(2) A person guilty of an offence under this regulation shall be liable on summary conviction to a fine not exceeding level 5 on the standard scale or imprisonment for not more than three months, or both.

(3) A constable or immigration officer who has reason to believe that a person has committed an offence under this regulation may give that person a notice offering him the opportunity of discharging any liability to conviction for that offence by payment of a penalty in accordance with the notice.

(4) The penalty payable in pursuance of a notice under paragraph (3) is £1000 and shall be payable to the Secretary of State.

(5) Where a person is given a notice under paragraph (3) in respect of an offence—

(a) no proceedings may be instituted for that offence before the expiration of the period of twenty one days following the date of the notice; and

(b) he may not be convicted of that offence if before the expiration of that period he pays the penalty in accordance with the notice.

(6) A notice under paragraph (3) must give such particulars of the circumstances alleged to constitute the offence as are necessary for giving reasonable information of the offence.

(7) A notice under paragraph (3) must also state—

(a) the period during which, by virtue of paragraph (5), proceedings will not be instituted for the offence;

(b) the amount of the penalty; and

(c) that the penalty is payable to the Secretary of State at the address specified in the notice.

(8) Without prejudice to payment by any other method, payment of a penalty in pursuance of a notice under paragraph (3) may be made by pre-paying and posting a letter containing the amount of the penalty (in cash or otherwise) to the Secretary of State at the address specified in the notice.

(9) Where a letter is sent in accordance with paragraph (8) payment is to be regarded as having been made at the time at which that letter would be delivered in the ordinary course of post.

Deception – employee offence

14.—(1) A person is guilty of an offence if, by means which include deception by him, he obtains or seeks to obtain an accession worker card.

(2) A person guilty of an offence under this regulation shall be liable on summary conviction to a fine not exceeding level 5 on the standard scale or imprisonment for not more than three months, or both.

Offences under regulations 13 and 14 – search, entry and arrest

15.  An offence under regulation 13 or 14 shall be treated as—

(a) a relevant offence for the purpose of sections 28B and 28D of the 1971 Act (search, entry and arrest);

(b) an offence under Part III of that Act (criminal proceedings) for the purpose of sections 28E, 28G and 28H of that Act (search after arrest); and

(c) an offence under section 24(1)(b) of that Act for the purpose of sections 28A, 28CA and 28FA(20) of that Act (arrest without warrant, entry of business premises to arrest and search for personal records).

Liam Byrne

Minister of State

Home Office

13th December 2006