Employer insists on worker authorisation when exempt - Croatian national

[Croatia2013]

Hello
I hope someone can help me figure this out.
I am a Croatian national who has been married to a British citizen for a few years.
We moved to the UK July 2016 and I started working part time from 15 September 2016.
At the time of application I stated to the employer that I do not need authorisation from the home office to work as I am exempt on the basis that I am a Croatian national married to a British citizen. I provided a leaflet issued by the home office which explains this and and all was fine.
I have since found a new job in the education sector employed by the local authority, application process seemed to be ok so I have terminated my employment with that first employer (leaving after 50 weeks of employment) and due to start my new job next week however the new employer just informed me this that they need a blue certificate as they need appropriate documentation that I have a right to work.
I have done my best to explain that I do not need this certificate as I can prove my right to work by showing my ID, British marriage certificate, and my husbands passport to prove he is British. I also showed them the home office leaflet as well as cited the the Accession of Croatia (immigration and worker authorisation) regulation 2013 part 1 sec9 which says in uk legislation that I am not subject to worker authorisation.
They refused to accept this saying I need the certificate.
We called the home office together and the home office said although i do not need authorisation, I need to prove I am exempt and to do this via the blue certificate which is essentially a authorisation letter by the home office!
When I explained that I have already been employed without this certificate I was told that the employer was wrong to do so. This surprised me.
So I looked into getting a blue certificate and the postal process can take months!
I have looked into booking an appointment to go to croyden in person but the booking system says it cannot take bookings as they are fully booked for the next 45 days, check again in a few days for availability.
I am in a tough spot where I have left my old job and I won't be able to start my new job because we are stuck on this.

Any advice on what I can do???
I strongly feel that I should not be forced down the blue certificate route but rather use my other documents to prove my right to work but the local authority won't budge on this and I am worried about the role being taken away from me and Not having a job.

[tmonaghan]

Hi Croatia2013,

Just so you know there are no advantages from being married to a British Citizen other than being allowed to apply for British Citizenship after 5 years instead of 6. beside that; EU Citizens should expect employers to ask for evidence of their rights to live and work in the UK by providing a registration certificate or proof of PR until Brexit.

[CR001]

Hi Croatia2013,

Just so you know there are no advantages from being married to a British Citizen other than being allowed to apply for British Citizenship after 5 years instead of 6. beside that; EU Citizens should expect employers to ask for evidence of their rights to live and work in the UK by providing a registration certificate or proof of PR until Brexit.

See page 2 and 3 (bullet point 5 on page 3) in the Guidance for Croatians link below as to why the OP has stated the marriage benefit.

https://www.gov.uk/government/uploads/s ... KP__2_.pdf

Agree though having the evidence makes life a lot simpler.

[tmonaghan]

I see now... Thanks. So basically this document could be used as opposed to applying for a registration certificate. Again employers might want to see a registration certificate as a piece of mind.

[CR001]

I see now... Thanks. So basically this document could be used as opposed to applying for a registration certificate. Again employers might want to see a registration certificate as a piece of mind.

Yes, having the physical evidence of a residence card is always better and far less stressful. Employers are too scared to take the risk because of the penalties they face.

[Croatia2013]

Hi
My new employer has said they will not commence my employment until I have the certificate.
My question now boils down to whether it is an obligation to have the blue certificate or only recommended. If only a recommendation (which I believe to be the case) then is the employer acting legally by not allowing commencement of work on the sole basis of not having the certificate when other legal documents are available to prove the right to work? E.g. Marriage very and ID docs...
My thinking here is that this may breach the equality act to prevent work because the employer is asking for a document which is not obligatory and will take months to obtain.
Thoughts?

[CR001]

An employer has the right to ask for a document proving your right to work and if you don't have one, has the right not to employ you.

You can apply in person for a same day decision, costs a lot more though.

https://www.gov.uk/ukvi-premium-service ... ligibility

[tmonaghan]

Although it is not an mandatory for you to have a registration certificate on the basis that the HO says so. Employers have the obligation to make sure that employees can demonstrate that they acquired the relevant documentation that shows their rights to live and work in the UK. It is all down to the employer to decide on what's best for them. Such as making sure they are protected against lawsuits for hiring staff that unlawfully reside in the UK.

[Croatia2013]

Thanks I totally understand an employer needs to satisfy themselves they are doing the right checks but there comes a point where the requests become unreasonable when someone has provided documents to prove they have the right to work and that these documents have satisfied other employers in the past.
To answer a point higher up.
The home office option to go to croyden for a same day determination is not currently available as if you go on the booking system it says they are fully booked for the next 45 days and to check the system again another day for further availability.
Does anyone know any solicitors that's specialise in Croatian right to work under exemption where I can take it further? Thanks

[tmonaghan]

Employers are not discriminating against you, a Croatian national, they are simply applying the law to protect themselves because you don't have a Registration Certificate.

[Richard W]

An employer has the right to ask for a document proving your right to work and if you don't have one, has the right not to employ you.

Do you have a reference for that? The case of Oikuoimose v. City Facilities Management (UK) Ltd shows that one can't even be suspended with permanent loss of pay for not having such a document despite having the right to work.

Employers have the obligation to make sure that employees can demonstrate that they acquired the relevant documentation that shows their rights to live and work in the UK.

That is false as a statement of law; it might possibly be valid as a consequence of the lack of the rule of law in the UK.

The quickest and cheapest solution for Croatia2013 might be to make a postal application for a residence certificate. So long as the marriage certificate and her husband's passport (plus the usual documents) are included in the application, she should get a CoA faster than she can get an in person appointment. A positive CoA should satisfy the new employer.

Is there any risk that the gap between the jobs will make Croatia2013's presence in the UK unlawful? My feeling is that a brief trip out of the UK is called for.

[Richard W]

Employers are not discriminating against you, a Croatian national, they are simply applying the law to protect themselves because you don't have a Registration Certificate.

Actually, they are discriminating against the spouses of EU citizens (and EEA citizens). Almost everyone else who has a recently acquired right to work will have speedy access to confirmation. If they don't apply, they don't keep the right.

The two other groups are ILR holders from 2012 and earlier who want to choose when they can't travel and holders of right of abode who aren't British or daren't hold a British passport.

[secret.simon]

Do you have a reference for that? The case of Oikuoimose v. City Facilities Management (UK) Ltd shows that one can't even be suspended with permanent loss of pay for not having such a document despite having the right to work.

The case law that you cited may not be directly applicable.

As a Croatian EEA citizen, the OP has the right to work in the UK only if s/he has the appropriate paperwork. The UK has exercised its right (strange that even member-states exercise rights) under EU law to impose conditions on the rights of Croatians to work in the UK till 2018.

However, in domestic legislation, not EU law, the UK has granted an exemption to Croatian family members of British citizens. Thus it is not a case of a conflict between EU law and domestic law, in which case EU law automatically triumphs, but of inconsistency between two pieces of domestic legislation - one granting an exemption and the other requiring specific types of proof.

That is why the case law that you have quoted is not directly comparable.

Further reading
European Union (Croatian Accession and Irish Protocol) Act 2013
The Accession of Croatia (Immigration and Worker Authorisation) Regulations 2013

Is there any risk that the gap between the jobs will make Croatia2013's presence in the UK unlawful?

As I understand it, while both the UK and Croatia are members of the EU, a Croatian national is always lawfully present in the UK. S/he may not be legally resident under Directive 2004/38/EC, so the period would not count for the purposes of legal residence and PR. BUt s/he will be lawfully present under Article 20 of the TFEU.

[Croatia2013]

Hello
I'm sorry I am doing my best to follow but it gets a little technical for me to understand.

I see there is a question/point about residence which I can help clarify...

I am the primary carer of my two children (both born in the UK from my marriage to my British husband) and they are both enrolled in full time primary school education here in the UK when I arrived back mid last year. I then started working for my first employer September 2016. According to CAB I was advised that because of these two situations I have a right to reside in the uk.
I have been claiming child benefits and tax credits from HMRC. I was queried by HMRC about my resident status and eligibility but they determined I was entitled to reside and claim these benefits. Again I was able to do all this without any letter or certificate or authorisation from the home office and they accepted that was ok.

During the course of today because of the pressure from the new employer I decided to make an application for the blue certificate and sent off all the documents but I am am still being denied employment from the new employer and have no idea how long it will take to get the certificate.

I'm also looking to return to my old employer while I get this sorted but I had already handed in my notice!

Any further advice would be very much appreciated.

[Richard W]

Thus it is not a case of a conflict between EU law and domestic law, in which case EU law automatically triumphs, but of inconsistency between two pieces of domestic legislation - one granting an exemption and the other requiring specific types of proof.

Article 25(1) of the directive: "On no account may a residence card be made a prerequisite for the exercise of a right". That "on no account" looks a pretty strong prohibition. Bear in mind that a Croatian may have full rights as the family member of an Italian permanent resident.

However, the point in Oikuoimose was that she had a right to work. There would be a similar argument with someone holding ILR evidenced in an expired passport rather than by a BRP, in which case EEA law would not be engaged at all.

What law do you think demands the OP present a CoA or residence certificate in order to work? The closest I know of demands such a document for an employer to have an excuse against a fine if the Croatian passport turns out to be a forgery and the OP to be Serbian rather than Croatian. For example, if an employer asks whether he may refuse to employ an apparent ILR holder with the sticker in an expired passport because the holder refuses to downgrade to a BRP, the Home Office helpline will say "Your decision." There's not even any reassurance about not breaching the Equality Act.

Is there any risk that the gap between the jobs will make Croatia2013's presence in the UK unlawful?

As I understand it, while both the UK and Croatia are members of the EU, a Croatian national is always lawfully present in the UK. S/he may not be legally resident under Directive 2004/38/EC, so the period would not count for the purposes of legal residence and PR. BUt s/he will be lawfully present under Article 20 of the TFEU.

"These rights shall be exercised in accordance with the conditions and limits defined by the Treaties and by the measures adopted thereunder."
So on what basis did the Home Office intend to remove Eva Johanna Holmberg? I believe the issue would be rather that the removal would be disproportionate in most cases.

[Croatia2013]

inconsistency between two pieces of domestic legislation - one granting an exemption and the other requiring specific types of proof.

Hello
The requirement for "specific types of proof"...
I haven't yet been able to find any legislation which says that in the case of a Croatian national exempt from worker authorisation must have a specific type of document to prove they are exempt. Ie this blue certificate.
Can you please point me to the doc and section please?
Apologies in advance if I have misunderstood the point!
Thank you

[Richard W]

I am the primary carer of my two children (both born in the UK from my marriage to my British husband) and they are both enrolled in full time primary school education here in the UK when I arrived back mid last year. I then started working for my first employer September 2016. According to CAB I was advised that because of these two situations I have a right to reside in the uk.

This right of residence wouldn't qualify for permanent residence, though I think that will cease to be before you acquire it. I'm surprised that you don't share responsibility with your husband. Sharing responsibility would stop you being a 'primary carer' under the terms of EEA Regulation 16.

I have been claiming child benefits and tax credits from HMRC. I was queried by HMRC about my resident status and eligibility but they determined I was entitled to reside and claim these benefits. Again I was able to do all this without any letter or certificate or authorisation from the home office and they accepted that was ok.

I think these rights actually flow from your being a 'worker'.

The government uses threats to persuade employers (and airlines) to do things that the government can't. The government can't demand that you have a residence certificate, but it frightens employers into not letting you work with a residence certificate. Except for reserved positions, I'm pretty sure the government itself couldn't refuse to employ you if you didn't have a residence certificate (or one probably on the way), but it will frighten a university off employing you without one.

During the course of today because of the pressure from the new employer I decided to make an application for the blue certificate and sent off all the documents but I am am still being denied employment from the new employer and have no idea how long it will take to get the certificate.

Good for the first part. Have you studied the contract of employment? Has the contract been signed?

[Croatia2013]

Good for the first part. Have you studied the contract of employment? Has the contract been signed?

Hello
I was sent an offer letter in June 2017 with a start date of September 4th 2017 and was told I would receive my contract over the summer holiday.
Due to staff holidays I was then told that the contract would arrive late August but no suggestion that there would be an issue.
So basically I have not been sent an employment contract and the reason given is because they have been advised by the home office that they would be fined if I don't have a blue certificate.
I shouldn't have left my old employer before having a contract of employment in hand. (Said while banging head against wall)
Richard are you a specialist solicitor in this area?
Any chance I could give you a call and talk through?
I'm hoping there is a way of constructing a very professional and well researched letter to the education authority which challenges their stance and explains to them the relevant law in a hope to allow me to at least start work while the application is in progress.

[tmonaghan]

In all, Croatia2013 will still be unable to take that job offer unless he acquires the Residence Certificate. It's unfortunate and it feels as though trying his luck with another employer might pay off instead of fighting with the local authority that will certainly retract that job offer. Would it be the case that if Croatia2013 had been a EU Citizen from France or Germany, the local authority would have had a different approach? In that case it would be for Croatia2013 to prove discrimination on the basis of Nationality.

[Richard W]

So basically I have not been sent an employment contract and the reason given is because they have been advised by the home office that they would be fined if I don't have a blue certificate.

The Home Office won't actually have said that, though a few sentences in isolation come very close to that. The position is that if you turned out not to be exempt from the registration requirement, e.g. but had instead presented a document that was not what it was claimed to be (the very useful word F A K E is bowdlerised on this site), and they didn't take a copy of the blue certificate, then they would face a £20,000 fine and, if they are sponsoring Tier 2 workers, the loss of the sponsorship licence. The liability is for employing someone who has no right to work; only copying the prescribed documents (and logging calls to the HO when they are pending) excuses an employer from a fine.

Richard are you a specialist solicitor in this area?

I have no legal training. It is best that any opinions I offer are open to correction. I believe the board works best that way. Even professionals are known to give incorrect advice, and Immigration is a minefield of undecided and changing law and practice.

I'm hoping there is a way of constructing a very professional and well researched letter to the education authority which challenges their stance and explains to them the relevant law in a hope to allow me to at least start work while the application is in progress.

Unfortunately, a counter-threat is all that will work. For those with time-limited documents, even being suspending without pay is a risky concession to fair dealing. The Home Office has apparently (I don't remember where I saw it) intimated that employers could be punished for having suspended employees without the right to work. It may be that you were only offered the job because of the threat under the Equality Act; it would otherwise be far simpler and safer for an employer to make a decision only to employ EU and EEA citizens other than Croatians.

[Croatia2013]

Thank you to all that have contributed to the discussion and helped me debate this, especially Richard. I feel like I've taken up a lot of everyone's time.

I spoke to my previous employer, explained the situation and they have kindly offered to take me back for a month, maybe two, which buys me some time.
They explained that their legal team had looked carefully at my right to work a year ago and again given the issue that has occurred. They were very satisfied that I have the right to work based on the docs I shared with them (ie without HO blue certificate). It's a position they feel they can defend so irrespective of the current issue they'll happily take me back.

I don't want to send a counter threat to the new employer, I was more hoping to challenge and persuade.

I'm hoping the certificate comes soon and I can still get the job.

Thanks again

[gab3x]

I'm hoping the certificate comes soon and I can still get the job.

Don't want to make you panic but H.O. takes ages to process these certificates. I applied couple of months ago for the Purple Certificate and only got the acknowledgement of receipt of application letter last week and this was with paying extra for fast track processing.

I tried to book an appointment in person, as this gets it done the same day, but there have been no available slots (they offer slots up to 45 working days in advance). Apparently you can find a free spot if you try refreshing the booking page around midnight on a Sunday but I tried that many times and it did not work.

You will get your certificate, just be prepared to wait a few months.

[Croatia2013]

Don't want to make you panic but H.O. takes ages to process these certificates. I applied couple of months ago for the Purple Certificate and only got the acknowledgement of receipt of application letter last week and this was with paying extra for fast track processing.

Oh gosh!
May I ask, when you applied I presume you had to send documents like passport etc, when they sent those back to you did they give you a ref number to track the application?
If not did that ref number only arrive on the acknowledgement letter?
Or is there no tracking process for these certificates?

Thank you

[Richard W]

EU Citizens should expect employers to ask for evidence of their rights to live and work in the UK by providing a registration certificate or proof of PR until Brexit.

At present, non-Croatian EU citizens need merely present their passport, even an expired one. That almost proves their right to work, and the passport provides an employer with the statutory excuse.

[Richard W]

Thus it is not a case of a conflict between EU law and domestic law, in which case EU law automatically triumphs, but of inconsistency between two pieces of domestic legislation - one granting an exemption and the other requiring specific types of proof.

Article 25(1) of the directive: "On no account may a residence card be made a prerequisite for the exercise of a right". That "on no account" looks a pretty strong prohibition. Bear in mind that a Croatian may have full rights as the family member of an Italian permanent resident.

Actually, secret.simon might be right on this irrelevant detail. I'm finding it hard to believe that the blue residence certificate that Croatia2013 is applying for is a real residence certificate. The purpose of the document she is applying for is to evidence that she is permitted to work. If it were not for the children or the continuation of the old job, it is hard to see how she would have a right to reside. But a residence certificate is proof of a right to reside on the day it is issued - EEA Regulation 17(8)(a).

I was also wrong in thing that a CoA would be issued. Now, both a CoA and a registration certificate must both be issued 'immediately', so it may matter whether this blue certificate is a real registration certificate. Certain categories of Croatian were protected from the British right of derogation, so they at least should get registration certificates 'immediately', just like any other EEA national.