Legal refresher: European free movement rights and hiring staff from Europe

Legal refresher: European free movement rights and hiring staff from Europe

European free movement rights allowing European nationals to work in other member states is one of the founding principles of the EU and is fast becoming a key political issue. However, many UK employers are left unclear as to which rules apply given the numerous changes over the last ten years depending on the nationality of the candidate. For all EU member states which acceded before May 2004, it is common ground that where a European national is in the UK for more than three months, they must be exercising a Treaty right. This means that they must either be in employment, self-employment, studying or be economically self-sufficient. In such circumstances, prior to the commencement of employment, UK employers can simply take a certified copy of the European national recruit's current passport to be stored on their HR file just as they would with a British citizen.

More recently, the rules have not been so simple given the reluctance of some member states, including the UK, to grant full free movement rights to the new wave of countries which have joined the EU. When the Accession 8 joined the EU in May 2004, including Poland and other countries, unlike most other EU countries the UK decided to allow near full free movement rights to the new member states. Keen to keep tabs on the number of people entering the UK for the purposes of employment, the Worker Registration Scheme (WRS) was implemented. This scheme meant that UK employers had to register the employment of an Accession 8 employee within one month of the employment commencing.  Once the employee had been legally working for 12 months, they were no longer required to register. The UK Government at the time believed that around 15,000 such workers would arrive in the UK to take up employment. In reality, that figure is put in the many hundreds of thousands and the policy has subsequently been labelled as a mistake by ex-cabinet ministers. The relevant EU Directive determines that member states can only derogate from full free movement rights for seven years and so the WRS was deleted in the summer of 2011.

When Romania and Bulgaria joined the EU on 1 January 2007, it was of no huge surprise that the Government was keen not to allow full free movement rights. As a result, before Romanians and Bulgarians can be employed in the UK, unless the candidate qualifies as a highly skilled worker, employers have had to first submit an application under the Business and Commercial Work Permit scheme. That scheme was the forerunner to Tier 2 of the Points Based System, introduced in November 2008. In that way, Romanians and Bulgarians who were to be employed in the UK were in some ways little better off than anyone else from outside the European area.

Mindful of the seven year point on 1 January 2014 after which