Commentary Section 4: Freedom of movement for Croatian Nationals as workers
25.Section 4 provides a power for the Secretary of State to make regulations implementing the transitional arrangements concerning the free movement of Croatian workers.
26.Section 4(1) allows for regulations to make provision concerning the entitlement of Croatian nationals to enter or reside in the UK as workers and any other matter ancillary to that entitlement.
27.Section 4(2) states that such regulations may provide that an enactment relating to the rights of nationals of the European Economic Area (EEA) to enter or reside in the UK in order to work (the “specified enactment”) applies (with or without modifications) to nationals of Croatia. The general free movement rights of EEA nationals are implemented in the UK by the Immigration (European Economic Area) Regulations 2006 (SI 2006/1003) (as amended). The transitional provisions made in relation to workers from eight of the States that acceded to the EU in 2004 are set out in the Accession (Immigration and Worker Registration) Regulations 2004 (SI 2004/1219) (as amended). The transitional provisions for nationals of these States were applied for the full seven year period and have now been lifted. The transitional provisions made in relation to workers from the two States that acceded to the EU in 2007, Bulgaria and Romania, are set out in the Accession (Immigration and Worker Authorisation) Regulations 2006 (SI 2006/3317) (as amended). The transitional provisions for nationals of Bulgaria and Romania have also been applied for the full seven year period and will be lifted at the end of 2013.
28.Section 4(3)(a) provides that regulations under this section may, in particular, require Croatian workers to be authorised in order to work in the United Kingdom. Regulations made pursuant to these provisions will specify the circumstances in which Croatian nationals are subject to, or exempt from, such a requirement; the criteria which may be applied to an application for work authorisation, including the types of employment which qualify for such authorisation; the information which should be submitted in support of such an application; and the documentary form that such authorisation takes.
29.Section 4(3)(b) provides that such regulations may require a fee to be paid in relation to an application for such authorisation. The fees charged in respect of the Croatian authorisation scheme will be at a level that does no more than cover the expenses of administering the work authorisation requirements.
30.Section 4(3)(c)-(e) provide that regulations may make it an offence for:
31.Section 4(3)(f)-(g) enable the Secretary of State to issue civil penalties in the following circumstances:
32.Section 4(3)(h) provides that regulations may include provision to treat an offence under the regulations as one to which any specified provision of section 28A to 28H of the Immigration Act 1971 (which relate to arrest, search and entry) applies.
33.Section 4(4) provides that an offence by virtue of these regulations will be a summary offence. If a fine is imposed, it will not be punishable by a fine exceeding level 5 on the standard scale. If a term of imprisonment is imposed, then this is not to be punishable by imprisonment for a term exceeding the applicable maximum.
34.Section 4(5) states that the applicable maximum for England and Wales is 51 weeks. The applicable maximum for Scotland and Northern Ireland is 3 months for an offence committed by the employee or a deception offence and 6 months for an offence committed by the employer. However, the maximum term of imprisonment of 51 weeks in England and Wales must be read in conjunction with subsection (6) which provides that, if the conviction occurs before the commencement of section 154(1) of the Criminal Justice Act 2003, the reference to 51 weeks imprisonment shall be read as 3 months for an offence committed by the employee or a deception offence and 6 months for an offence committed by the employer. Section 154(1) of the Criminal Justice Act 2003 has not yet been commenced at the time of writing so the applicable maximum for the whole of the UK is currently 3 months for an offence committed by the employee or a deception offence and 6 months for an offence committed by the employer.
35.Section 4(7) provides that the fixed fine for employee offences will be less than the maximum imposable fine under subsection (3)(c). This ensures that the amount of any civil penalty that could be imposed by the Regulations cannot exceed the maximum fine that can be imposed by a criminal offence created under the Regulations. This section also provides that a notice requiring payment of a civil penalty is to be given by a constable or an immigration officer and that this must include provision about the circumstances in which the notice is to be withdrawn.
36.Section 4(8) provides that the fixed fine for employer offences will be less than the maximum imposable fine under subsection (3)(d). This ensures that the amount of any civil penalty that could be imposed by the Regulations cannot exceed the maximum fine that can be imposed by a criminal offence created under the Regulations. Subject to any modification that the Secretary of State thinks appropriate, any civil penalty imposed under section 4(8) must include provision corresponding to section 16, 17 and 19 of the 2006 Act. These sections set out safeguards for employers, namely, section 16 of the 2006 Act sets out how an employer can object to a penalty notice, section 17 sets out how an employer can appeal any penalty notice to a court and section 19 sets out how the Secretary of State shall issue a code of practice specifying factors to be considered in determining the amount of a penalty imposed.
37.Section 4(9) allows the regulations made under section 4 to include incidental, supplementary, transitional or consequential provisions and to make different provisions for different cases; this would, for example, allow different provision to be made in relation to different economic sectors.
38.Section 4(10) states that regulations under this section are to be made by statutory instrument.