By Laura Devine, Laura Devine Solicitors, London


Wall finally falls



The EU's 25 member states finally staggered to a decision in October 2006 that Romania and Bulgaria would become full members on 1 January 2007. Hailed by Sergei Stanishev, the Bulgarian prime minister, as 'the genuine and final fall of the Berlin Wall for Bulgaria', it was no wonder that the blue-and-gold EU flags fluttered across Sofia and Bucharest.



Following the first wave of eight accession countries (the 'A8' member states), which joined the EU on 1 May 2004, Romania and Bulgaria have become known as the 'A2' member states.



However, in a stark warning to countries still lobbying for EU membership &150; such as Turkey and the Balkan nations &150; the free movement conditions imposed on Romania and Bulgaria's accession have been tougher than when the A8 members joined. The UK, Ireland and Sweden allowed unrestricted free movement rights for the A8 nations, such as Poland. During the latest stage of enlargement, Ireland has kept the doors to its labour markets for A2 nationals firmly shut and the UK has tightened its grip, leaving Home Secretary John Reid to face charges of bowing to tabloid xenophobia.



Annex VI to the Treaty of Accession lays down the transitional provisions and boundaries in which members can derogate from the free movement rights afforded to existing European Economic Area (EEA) nationals in community law (articles 1 to 6 of EEC regulation 1612/68, as amended). In its heading, the annex refers to a 'Treaty establishing a Constitution for Europe', perhaps a rather ominously premature and assumptive statement.



For the first two years after accession, existing members can apply national measures to regulate the rights of Bulgarian and Romanian nationals to enter their labour markets, and from the third year members may either grant A2 nationals the right to move and work freely in accordance with community law, or continue to apply national measures for a further three years (or for a further five years in cases of serious disturbance to its labour markets or threat thereof).



Any member state that has granted the right of free movement in accordance with community law during the seven-year transitional period can request that the European Commission suspends in whole or in part the application of that law if the member state undergoes or foresees disturbances of its labour market that could seriously threaten the standard of living or level of employment in a given region or occupation.



Notably, Germany and Austria, no doubt because of their proximity to a number of eastern European states, have also negotiated bilateral agreements in an effort to restrict A2 nationals entering specific service sectors (such as construction and related activities).



In view of the EU's last-minute decision to allow the accession of Romania and Bulgaria, the UK, like other member states, had little time to waste in developing and implementing its strategy to accommodate A2 nationals who will enter the UK to live and work. With a raft of poor publicity in relation to the extraordinary underestimate of the numbers of immigrants who would come to live and work in the UK after the first group of accession countries joined the EU (between 450,000 to 600,000 A8 nationals are thought to have registered to work in the UK, compared to the expected 18,000), the UK government has been determined to avoid further embarrassment.



However, some commentators maintain that many A2 nationals who want to work abroad have already left, and that the post-accession opportunities for business and investment

in the domestic markets of Romanian and Bulgaria are booming (with growth rates in 2006 estimated at 7% and 5.5% respectively). In comparison, at the time of their admission, Polish nationals, for example, were fleeing unemployment rates of up to 20%.



In accordance with the boundaries for transitional integration stipulated in the Treaty of Accession, the UK implemented the Accession (Immigration and Worker Authorisation) Regulations 2006. With an impressive array of some seven different Home Office application forms (BR 1-7) already to choose from (with more inevitably in the pipeline), it is no wonder that A2 nationals, UK employers and practitioners alike are finding it difficult to establish exactly what and how applications to live and work in the UK should be made.



Before 1 January 2007, Romanians and Bulgarians, like other 'visa nationals', required a visa to enter the UK as visitors for a period of up to six months, whereas now they are able to enter and reside freely for three months. Those A2 nationals who will be working on a genuinely self-employed basis - including those who held leave to enter or remain in the UK under the now largely obsolete European Community Association Agreements (ECAA) between Bulgaria and Romania and the UK - no longer require prior immigration permission to enter or remain in the UK. The same applies to those A2 nationals who are 'self sufficient' or will be studying in the UK.



In addition, those who have worked legally in the UK for an uninterrupted 12 months prior to the date of accession will enjoy free access to the labour market, as will those who work for the same length of time after the accession date.



However, given that the UK government appears to be moving swiftly forward with its plans to stamp out illegal working, with increased inspections and the issue of 'on-the-spot' £1,000 fines to employers and individuals (who could also be liable to up to three months' imprisonment), the self-employed, self-sufficient and student A2 nationals may be well advised to apply for a registration certificate to show their rights, and avoid having to carry a copy of the regulations in their back-pockets.



While the Home Office's quota for seasonal agricultural and food processing worker schemes will provide employment for a six-month period for many A2 workers (work which was previously undertaken largely by Ukrainians), Romanian and Bulgarian nationals who wish to take skilled employment in the UK must meet those national measures that apply to non-EEA nationals, which are principally the work permit arrangements and the highly skilled migrant programme. It has been estimated that as few as 1,800 A2 workers will have sufficient skills to benefit from these schemes.



Many UK work-permit applications require the role to be advertised so that the employer is able to show that a resident worker - defined as EEA nationals and those with indefinite leave to remain in the UK - cannot fill the role. When submitting an application for a Romanian or Bulgarian national, employers are required to compare the skills, experience and qualifications of A2 nationals with those of other resident workers &150; a rather ridiculous scenario.



Assuming the work permit application is approved, an approval letter is issued to the employer, and the A2 national must then apply for an accession worker card, without which any employment will be illegal. At this stage, the A2 national is likely to be overseas. Non-EEA nationals are able to submit an application at a British diplomatic post in their country of origin or residence, which can often be completed on a same-day basis.



Yet, Romanians and Bulgarians, supposedly now blessed with European free-movement rights, have to apply for the accession worker card, which can take approximately four weeks or longer to be processed by a Home Office team in Sheffield. While the authorities in Sofia and Bucharest have given the go-ahead for their nationals to send their passports over international borders (which is usually questionable to say the least) to assist with the applications for cards, it is hardly a respectful system of free-movement rights for workers in the EU.



The accession worker card, unlike a work permit issued to non-EEA nationals, is not time limited, but it does only permit the holder to work for a named employer. Non-EEA nationals making 'change of employer' work-permit applications are able to work with immediate effect from the date of the approval letter (and the application can be submitted while the applicant is in his current employment). Seemingly, it is a mute point as to whether Romanians and Bulgarians will have to apply for another accession worker card before they can take new employment, and thus suffer a delay which would not apply to non-EEA nationals.



Many overseas nationals come to live and work in the UK with a view to permanent residence, which should be achievable after five years' continuous and legal stay in the UK in a qualifying category.



Many Romanians and Bulgarians have been in self-employment in the UK for less than five years under the ECAA, which generally afforded a preferable means to establish themselves in business in the UK compared to non-EEA nationals. While post-1 January 2007 the provisions in the immigration rules (which largely dictate domestic immigration) for the ECAA have disappeared, the rule applying to applications for permanent residence still applies, as a transitional measure.



The permanent residence rule is such that those already in the UK under the ECAA must have established themselves in business in the UK, spent a continuous period of five years in the UK in this capacity, and be still so engaged. However, as the other immigration rules relating to extensions of stay in the UK under the ECAA have been removed, it is unclear whether time spent under the ECAA as a non-EEA national before 1 January 2007 and time spent as an EEA national after the date of accession can be amalgamated.



Persuasive correspondence from the commission does seem to suggest that such measures would not be in keeping with article 16 of the Citizens Directive 2004/38/EC (the rights of citizens of the EU and their families to move and reside freely), which came into force in the UK on 30 April 2006 in the form of the Immigration (European Economic Area) Regulations 2006, as persons who have recently become EU citizens and have legally resided in the UK for five years should also be able to acquire a right of permanent residence.



Even so, some A2 nationals may find themselves in the extremely unfavourable position of perhaps having spent four years in the UK prior to accession and then having to spend a further five years in the UK before acquiring a right of permanent residence.



While intended only to be transitional in nature, it remains to be seen whether the new regulations applying to the new A2 member states are in keeping with the spirit of free movement within EU territories, or whether in some cases even non-EEA nationals are in the more favourable position, especially in terms of opportunities for employment in the UK.



In an environment in which the UK government suffers increasing pressure to reduce illegal working, it may do little to help the situation that Romanian and Bulgarians without sufficient skill levels may enter the UK for a period of three months without prior permission and are thus more likely to overstay, breach conditions, and work in Britain's black economy, which no amount of 'border control' measures may be able to prevent. With the home secretary himself labelling the Immigration and Nationality Directorate as 'unfit for purpose', policing the system may prove difficult.



But in view of the fact that 31% of doctors working in hospitals and general practice in the UK are 'migrants', and that 12.5% of teaching staff working in schools are non-British, along with countries such as Turkey and Croatia vying for future accession, the UK and other member states will undoubtedly have to endure further pressures to balance the competing demands of EU free movement rights and domestic labour market integration.



Tim Richards, a trainee at Laura Devine Solicitors, contributed to this article