A2 nationals and PR?

[John]

Having just read the MAC report, on whether current restrictions on A2 nationals .... Bulgarians and Romanians ..... should be relaxed or maintained, a thought has occurred to me, which I do not think is dealt with in the MAC report.

Before I go on, MAC is advising the Government to maintain current restrictions on employment of A2 nationals.

The A2 countries joined the EU on 01.01.07 so 5 years later is of course 01.01.12. After 5 years of exercising Treaty Rights is the UK, for example as a self-employed person, it looks as if even A2 nationals get PR status, and can use form EEA1 to get confirmation of that fact.

The thought in my head is this .... once an A2 national has PR status .... are the transitional restrictions on them still applicable? Or does getting PR status mean the transitional restrictions no longer apply to such A2 nationals?

Opinions very welcome!

[EUsmileWEallsmile]

Could you provide a link to the MAC report?

[EUsmileWEallsmile]

Do A2 worker nationals not have full rights of movement after 12 months permitted work under the permit scheme?

[John]

For the MAC report .... click here to download.

[fysicus]

It's an interesting question. I'm not a lawyer but I have been well trained in logical thinking, so I just will rely on that.

I agree that an A2 national (and their non-EEA family members) can acquire PR after 1 January because that is the earliest date on which they can have lived in the UK in accordance with the EEA regulations. At the same time, however, they do remain A2 nationals and as such are subject to the provisions from the accession treaties. I do not know the content of these treaties, but if there is no explicit clause in there that would limit the restrictions on A2 nationals with PR, I think these restrictions will remain in force.

A serious flaw in the legislation is that both Directive 2004/38 and the EEA Regulations 2006 spend a lot of words about how one can acquire PR, but almost nothing about what PR actually means.

[Kitty]

The Accession (Immigration and Worker Authorisation) Regulations 2006 amend the "ordinary" Regs so far as A2 nationals are concerned.

Restrictions apply to "an accession State national subject to worker authorisation".

(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.

(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.

Bulgarians are still "EEA nationals" and can become "qualified persons" under the ordinary Regs once they are no longer "subject to worker authorisation".

What other restrictions are people thinking of?

[John]

Kitty, that is very helpful. So (7) which you quote is the answer to my question in the opening post above, that is, it confirms that an A2 national who has PR status is not subject to worker authorisation.

But the (4) you quote raises an interesting thought in my mind. It includes the expression "legally works", and no doubt they intended that to mean that the A2 national has served 12 months subject to worker authorisation.

But have they succeeded? That is, could "legally works" include someone who has worked in the UK for at least 12 months, as a self-employed person?

Or is that wishful thinking on my part?

[Obie]

.............

(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.

[John]

Obie, thanks for pointing that out. As I thought, it was wishful thinking on my part.

However, it was good to learn earlier that any A2 national getting PR status is allowed to be employed, without the need to register, irrespective of the route to their PR. For example someone could have been self-employed for 5 years.

[Obie]

Obie, thanks for pointing that out. As I thought, it was wishful thinking on my part.

However, it was good to learn earlier that any A2 national getting PR status is allowed to be employed, without the need to register, irrespective of the route to their PR. For example someone could have been self-employed for 5 years.

Yes PR has a community meaning, and once someone has obtained it, I think they cannot be treated differently, or have restriction imposed on them, which were not in existence previously.

Even A2 national who have been legally working prior to accession, cannot have restrictions imposed on them, once their work permit ended, provided they had been working for a year in the UK.

It will be odd from a logical point of view , if someone on PR can claim benefit without having to fulfill the right of residence test, able to live legally in the UK without exercising treaty rights, and hence not allowed to work .

It would be contrary to community provision on discrimination on grounds of nationality, as people with the equivalent under national law (ILR) are entitled to a range of facilities, and these people aren't because of their nationality and nothing else.

I believe the purpose of the Transitional restriction, is to limit any sudden shock on the Job market of a particular memberstate by a surge in people coming to a particular memberstate after accession and causing disturbance to a state's job market. It is not aimed at settled migrant or a Union Citizen who has been integrated in a memberstate.

Having such restrictions after PR will go against the principle surrounding the adoption of PR under Article 16 of the directive.

[EUsmileWEallsmile]

An internet search has revealed at least one "unreported case" (Greenie, please elaborate on what this means for the rest of us) where an A2 national has successfully argued that they qualified for PR on the basis of a "standstill agreement" with the UK.

Now, to put that into English for those of us that have no legal training...

The directive says along the lines of legal residence. The 2006 regs say "in accordance with these regulations" spot the difference.

There was a UK case in 2007, which rejected this argument. It was held that the "in accordance wit these regulations" was compatible with EU law. This does not appear to have been tested further than the UK procedure.

The "unreported case" centred around a worker who had been in the UK under the terms of a previous E2/ EU / UK agreement and so it was deemed that that was to be counted for PR.