The 2005 Act of Accession of Bulgaria and Romania allowed EU-25 Member States to temporarily restrict the free access of workers from Bulgaria and Romania to their labour markets by making it subject to their national law. The UK has been allowed to keep restrictions on the free movement of workers from Bulgaria and Romania for a transitional period of up to seven years. The Accession (Immigration and Worker Authorisation) Regulations 2006 regulate access to the UK labour market by Bulgarian and Romanian nationals.
Presently, citizens from these countries do not have an automatic right to reside as workers in the UK unless they are exempt from work authorisation requirements. The UK requires Bulgarian and Romanian to have a work permit. Bulgarian and Romanian students may engage in employment for up to 20 hours a week during term time and full time work during vacation periods from their course. But, if they wish to work, they are required to first obtain a registration certificate confirming that they are exercising a Treaty right as a student. A student wishing to work for more than 20 hours a week during term time, other than as part of vocational training, is required to obtain an accession worker card.
The transitional arrangements will irrevocably end on 31 December 2013. There will be complete freedom of movement for workers from Bulgaria and Romania from 1 January 2014.
According to MigrationWatch around 250,000 Romanians and Bulgarians could arrive in the UK from over the next five years. The Government is currently studying measures that could prevent an influx of people from Romania and Bulgaria and limit its impact on the UK economy. The Government is particularly planning to limit access to benefits and the NHS.
According to the Daily Mail, Mark Harper said, “European nationals do not have unrestricted access to the UK – they must be exercising their treaty rights. This means they must be working, studying or self-sufficient. We already have tough rules on access to benefits; we need to see if there is more we can do to tighten them up.” He also pointed out “…EU students and those that are self-sufficient should not be a burden on the host member state, which means they should have things like health insurance. We have a National Health Service, not an international health service." The Government has in mind preventing unemployed EU citizens from using NHS services and require them to have private health insurance.
However, presently, there is not much that Government can do to restrict free movement of Romanian and Bulgarian workers without breaching EU’s rules. It is important to recall that the Commission has launched infringement procedures against the UK for breaching EU rules on freedom of movement.
In April 2012, the European Commission sent a reasoned opinion, second step of the infringement procedure, to the UK, formally requesting it to comply with EU rules on the free movement of EU citizens and their families across the EU. Under the Free Movement Directive, EU citizens who live in another EU country but do not work there are required to have enough resources and sickness insurance. The UK requires private health insurance. However, according to the Commission the UK has breached EU Law by not considering entitlement to treatment by the NHS as sufficient to allow EU citizens who live but have no job in the UK to stay in the country for more than three months. The Commission is therefore requiring the Government to allow jobless EU citizens who want to reside in the UK to claim the NHS as their sickness insurance.
According to the Financial Times “Officials argue that the NHS cannot be seen as an insurance policy to anyone in the EU and that the controls are essential to ensuring economically inactive EU citizens do not place an undue burden on the state.” The Express has reported that such move could cost taxpayers around £1billion a year.
The Commission has also opened an infringement procedure against the UK concerning the application of the Right to Reside Test. The UK applies a ‘habitual residence test’ on access to certain welfare benefits, namely Council Tax Benefit, Housing Benefit, income-based Jobseeker’s Allowance, State Pension Credit, housing benefits, Child Benefit, Child Tax Credit, and Working Tax Credit. However, the European Commission has requested the Government to stop the application of the right to reside test. According to the European Commission “this test indirectly discriminates non-UK nationals coming from other EU Member States it contravenes EU law.”
The European Commission recalled that under the EU Regulation on the coordination of social security systems, which concerns social security benefits and not social assistance benefits, “EU citizens have the same rights and obligations as nationals of the country where they are covered” and noted “The EU directive on the free movement of EU citizens (…) allows for restrictions of access to social assistance only, but it cannot restrict the access to social security benefits”. The European Commission has stressed that the UK should solely apply to social security benefits the habitual residence test as it is provided in EU law.
It is important to note that the European Commission’s legal action against the UK concerns ‘social security’ benefits under EU law, which includes Child Benefit, Child Tax Credit, income-based Jobseeker’s Allowance, income-related Employment and Support Allowance, Income Support and State Pension Credit. The Commission believes that the UK’s application of the right-to-reside test to these benefits breaches EU law because it constitutes discrimination based on nationality, and it is a form of indirect discrimination.
Ian Duncan Smith has recently told the House of Commons, “The habitual residence test is vital to protect our benefits system and to stop such benefit tourism.” He also pointed out, “If
we did not have the British residency test, it is estimated that right
now the cost would be something in the order of £155 million, although
that could change.”
The UK is required to amend its national rules in order to comply with the reasoned opinion and to notify the Commission the measures it has taken to bring UK law in line with EU law. Failing this, the Commission may refer the case to the European Court of Justice, which may impose financial penalties on the UK.
