Employing Croatian workers
On 1 July 2013, Croatia joined the European Union and subsequently Croatians became EU citizens. This gives Croatian nationals equal rights to any other EU national and includes the right to enter and reside in any EU member state.
However, by way of the Accession of Croatia (Immigration and Worker Authorisation) Regulations 2013 ("The Regulations"), the UK has exercised its right to apply transitional arrangements in respect of the access to the UK labour market for the period of 5 years, "the accession period".
The Regulations provide that the Croatian national will only be authorised to work in the UK if he holds a valid accession worker authorisation document and is working in accordance with the conditions set out in that document or is exempt from work authorisation.
An accession worker authorisation document is defined as a passport or other travel document endorsed before 1 July 2013 showing a valid leave to enter or remain in the UK; or a worker authorisation registration certificate.
Exemption categories include, amongst others, individuals who on 30 June 2013 already had leave to enter or remain without any restrictions on working; or individuals who on 30 June 2013 had already been working legally and continuously for a period of 12 months.
Process to obtain work authorisation
The process to obtain work authorisation for a Croatian national consists of 3 stages. Firstly, the employer must be a licensed sponsor under the relevant Tier and category of the Points Based System.
Secondly, the employer must issue a Certificate of Sponsorship to a worker. And thirdly, an individual must then use their certificate in support of their work authorisation application.
The guidance issued by UKBA sets out that the work authorisation document will normally be in the form of a Purple Registration Certificate. To qualify for a Purple Registration Certificate, a Croatian national needs to meet one of the following criteria:
- Being issued by a sponsor with a valid Certificate of Sponsorship under Tier 2 or Tier 5 of the Points Based System; or
- Looking to be employed as: (i) a representative of an overseas business; (ii) a postgraduate doctor or dentist; or (iii) a domestic worker in a private household.
Preventing illegal working
In July 2013, the UKBA have issued the Guidance for employers on preventing illegal working in the UK: Croatian nationals ("the Guidance"), setting out directions in relation to the law preventing illegal working as contained in the Regulations.
In line with stated government policy to do more to tackle illegal immigration, the Guidance sets out to make it harder to unlawfully gain employment for those Croatians who are not legally allowed to work in the UK and to make it easier for the Home Office to take action against employers who employ illegal workers.
In accordance with the Regulations, every employer is under a duty to carry out document checks to confirm that a Croatian national has either an unrestricted right to work in the UK or holds a valid worker authorisation document authorising him to undertake the employment in question.
The Regulations require that, before the employment begins, the employer in performing this duty:
- Takes all reasonable steps to check the validity of the document;
- Is satisfied that the photograph on the document is of the employee;
- Is satisfied that the date of birth on the document is consistent with the appearance of the employee;
- Takes all reasonable steps to check that the employee is the rightful holder of the document;
- Securely retains a dated copy of the entire document in a format that prevents it from subsequent alterations; and
- Keeps the copies for a period of not less than two years after the employment has ended.
As set out in the Guidance, the above requirements apply only to Croatian nationals employed on or after 1 July 2013.
Failure to carry out the document checks may result in UKBA imposing a fine on the employer (also known as a civil penalty), if the employer is found to be employing a Croatian national illegally.
The maximum amount that can be imposed is £5,000 for each Croatian national employed illegally. The level of penalty will be calculated on an individual basis after taking into account circumstances specific to each case.
The employer found employing illegal workers may have a legal excuse under the Regulations, if he has carried out the document checks correctly.
This would not apply if the employer knew that the worker does not hold a valid work authorisation document or the permission is not valid for the type of work they are employed to carry out.