Page 51 of the Application form for a Permanent Residence Card may pose some difficulties for certain EU8 nationals who have been present and working in the United Kingdom from before 30th April 2011, and who did not apply for a Worker’s Registration Card.
The section defines these categories as:
- Accession period: 1 May 2004 to 30 April 2011
- Relevant scheme: Worker registration scheme (WRS)
- Relevant authorisation documents: WRS card or certificate, leave granted before 1 May 2004 giving permission to work
The application form then goes on to ask whether the EU8 national did indeed register, and very few did after April 2006.
Whether or not such nationals registered, has no bearing on the application for a Permanent Residence card, where they have met the requirements of Directive 2004/38 since 2011. This is because they would now have acquired more than five years qualifying presence for Permanent Residence to have been achieved.
But it may have a bearing on a subsequent application for British Citizenship, if the Home Office consider that the applicant has in failing to register their employment been working unlawfully in the United kingdom over the ten years prior to any application.
As a matter of legal principle, there is no obligation to complete every section of the application form under the terms of EU law. As a matter of practice, the Home Office EEA Regulations require you to do so.
A great deal of care needs to be taken in completing this part to the application form.
Generally speaking you should disclose a previous employment history, lest the Home Office rely on any such failure to infer dishonesty, but how you categorise this employment should be carefully explained.
I do not think that there was in fact a requirement for EU8 nationals to register after the 30th April 2006.
My reasoning is as follows:
On the 1st May 2004, The EU8 accession states became EU member states. Despite having full membership as from this date, other EU states could impose restrictions on free movement for a period of up to seven years.
On the 1st May 2004, The Accession (Immigration and Worker Regulations) came into force.
This required EU8 nationals to register with employers for a position of 12 months if they were to enjoy a right of residence. These were in effect a form of restriction permitted within the seven year period.
On the 30th April 2016, the Immigration (Economic Area) Regulations came into force.
At section 2 (c) describes an ”EEA national” as a “national of a member state, other than the UK, Norway, Iceland, Lichtenstein or Switzerland.”
In other words, EU8 nationals fell within the definition of “ member state.” These Regulations confirmed the right of free movement and work for European nationals without any requirement to seek authorisation from the state.
In so phrasing, the 2004 regulations are effectively abolished in their entirety. Not that this is clear , on the face of the 2006 regulation which only appears to revoke Sections 3 and 6 of the 2004 regulations.
The legal status of EU8 nationals who did not register their employment prior to 30th April 2011 is unnecessarily confusing and legal advice should be sought in such circumstances.