Right to reside of A8 nationals

Requirements that A8 nationals had to meet during and after the accession period to be eligible for homelessness assistance.

This content applies to England

Eligibility rules before and after 1 January 2021

Before 1 January 2021 these rules applied to EEA nationals and their family members who were exercising EU free movement rights in the UK.

After 1 January 2021 these eligibility rules continue to apply to EEA nationals and their family members who have either:[1]

The information and footnotes are kept for reference only and will not be updated.

EEA nationals moving to the UK from 1 January 2021 are subject to new eligibility rules.

Access of A8 nationals to UK labour market

The A8 countries joined the EU in 2004.

The A8 countries are:

  • Czech Republic

  • Estonia

  • Hungary

  • Latvia

  • Lithuania

  • Poland

  • Slovakia

  • Slovenia

The UK introduced schemes to limit the access of A8 nationals to the UK labour market for a limited time known as the 'accession period'.

From 1 May 2009, A8 nationals have the same right of residence as other EEA nationals.

Accession period and unlawful extension of the scheme

The restrictions imposed on A8 nationals by the Worker Registration Scheme were originally due to expire on 30 April 2009, but the UK extended it for a further two years until 30 April 2011.[2]

The Supreme Court held that the extension of the scheme was unlawful and that the regulations extending it until 30 April 2011 should be disapplied.[3]

Periods of unregistered employment of A8 nationals in the period from 1 May 2009 to 30 April 2011 can be taken into consideration when determining, for example, whether they have retained worker status or acquired a permanent right to reside in the UK.[4]

Worker Registration Scheme for A8 nationals

Under the Worker Registration Regulations,[5] A8 nationals had a right to reside in the UK and were eligible for homelessness assistance during their first year of employment, if they had registered their employment within one month of starting work and were working for an authorised employer.

The Court of Appeal held that it was lawful and proportionate that the Regulations denied the right of residence to A8 nationals unless their employment was registered.[6]

Failure to register employment

It was the responsibility of A8 workers, not their employers, to register their employment.[7]

A8 nationals subject to the Worker Registration Scheme who failed to register their employment within a month of starting work did not have the status of 'worker' for the purpose of the definition of 'qualified person'. This in turn meant that they had no right of residence and were working in breach of the immigration rules.[8] Their employers committed a criminal offence.[9]

A late application, ie after one month of starting employment, was not retrospective to the start of the period of employment.[10]

Stop work within the initial 12-month period

During the first year of employment, if A8 nationals stopped working they ceased to be eligible for assistance. Under the Worker Registration Scheme, this was the case even if the job was lost through no fault of the A8 national or due to temporary incapacity. There was one limited exception to this, namely, if within one month of having started work A8 nationals stopped working for an authorised employer, due to temporary incapacity as a result of illness or accident, or because they were involuntarily unemployed, they did not cease to be eligible for assistance during the remainder of the one month period commencing on the day they started work.[11]

The Upper Tribunal has held that where an A8 national (who had lived in the UK for two years) stopped working within the first 12 months of her employment because she became permanently incapacitated, she did not cease to be eligible for assistance.[12] This was regardless of the fact that some of her period of employment was unregistered. Under the EU Citizenship Directive, a person who has resided continuously in the UK for two years and who has stopped working as a result of a permanent incapacity for work acquires a permanent right to reside (and is thus eligible for assistance). The Upper Tribunal held that the UK had not derogated from the provision in the Directive when it introduced the Worker Registration Scheme, and its provisions therefore applied to A8 (or other accession country) nationals regardless of whether or not they had complied with worker registration requirements.

A8 nationals had to re-register to be eligible for assistance if they changed their employment within the initial 12-month period.[13] A8 nationals were issued with a Worker Registration Scheme card when they first registered and a Worker Registration Certificate for subsequent registrations.

Completes 12 months' registration

Once A8 nationals completed 12 months' employment in accordance with the Worker Registration Scheme, they were no longer required to register under the scheme and had exactly the same rights as workers of EEA states with full rights.

Periods of unemployment of up to 30 days in the 12 month period did not interrupt continuity, provided they returned to work and that work was authorised under the Scheme at the beginning and end of that period.[14]

Permanent right to reside

An EEA national who has resided lawfully in the UK for a continuous period of five years in accordance with the UK Regulations has a permanent right to reside in the UK.[15] An A8 national who was a worker requiring registration must have been registered in accordance with the Workers Registration Scheme in order to constitute a period of lawful residence,[16] except where such a requirement would be disproportionate. Accordingly in some cases it will remain necessary to ascertain whether an A8 national required registration.

Jobseekers

The Worker Registration Scheme also prevented A8 nationals who were jobseekers from having a right of residence unless they satisfied the self-sufficiency requirement set out in EC Directive 2004/38/EC.[17] A jobseeker in this context means a person who enters the UK to seek employment.

Exempt from registration

A8 nationals were not required to register their employment under the Worker Registration Scheme if they:[18]

  • had leave to enter or remain prior to 1 May 2004 without any restriction on employment

  • had leave to enter or remain with a restriction on employment, but had worked in accordance with any restriction before 1 May 2004 - this would apply to work-permit holders

  • had worked legally in the UK for at least 12 months before or after 1 May 2004

  • were the spouse, civil partner or child aged under 18 of a person who had leave to enter or remain in the UK without restriction on employment[19]

  • were a family member of an EEA national who has a right to reside in the UK

Last updated: 17 March 2021

Footnotes

  • [1]

    see the The Immigration and Social Security Co-ordination (EU Withdrawal) Act 2020 (Consequential, Saving, Transitional and Transitory Provisions) (EU Exit) Regulations 2020 SI 2020/1309 and The Citizens’ Rights (Application Deadline and Temporary Protection) (EU Exit) Regulations 2020 SI 2020/1209.

  • [2]

    Accession (Immigration and Worker Registration) (Amendment) Regulations 2009 SI 2009/892.

  • [3]

    Secretary of State for Work and Pensions v Gubeladze [2019] UKSC 31. See also DWP Memo ADM 14/19 - Right to reside: UC, and DWP Memo DMG 11/19 - Right to reside: IS, JSA, ESA & SPC.

  • [4]

    See for example: AM v Secretary of State for Work and Pensions (ESA) [2019] UKUT 215 (AAC).

  • [5]

    Accession (Immigration and Worker Registration) Regulations 2004 SI 2004/1219.

  • [6]

    (1) Miskovic (2) Blazaj v Secretary of State for Work & Pensions [2011] EWCA Civ 16.

  • [7]

    Secretary of State for Work and Pensions v ES (JSA) [2011] UKUT 106 (AAC).

  • [8]

    Prefeta (Accession - Freedom of movement for persons - Judgment) [2018] EUECJ C-618/16.

  • [9]

    reg 9 Accession (Immigration and Worker Registration) Regulations 2004 SI 2004/1219.

  • [10]

    Szpak v Secretary of State for Work & Pensions [2013] EWCA Civ 46.

  • [11]

    reg 5(4) Accession (Immigration and Worker Registration) Regulations 2004 SI 2004/1219.

  • [12]

    SSWP v NZ (ESA) (Third interim decision) [2017] UKUT 360 (AAC).

  • [13]

    Zalewska v Department for Social Development [2008] UKHL 67.

  • [14]

    reg 2(8) Accession (Immigration and Worker Registration) Regulations 2004 SI 2004/1219.

  • [15]

    reg15 Immigration (European Economic Area) Regulations 2016 SI 2016/1052.

  • [16]

    para 2, sch. 4, Immigration (European Economic Area) Regulations 2016 SI 2016/1052.

  • [17]

    EC Directive 2004/38/EC on the rights of citizens of the Union and their family members to move and reside freely within the territory of the Member States.

  • [18]

    reg 2 Accession (Immigration and Worker Registration) Regulations 2004 SI 2004/1219, as amended by reg 3 Accession (Worker Authorisation and Worker Registration) (Amendment) Regulations 2009 SI 2009/2426.

  • [19]

    reg 2 Accession (Immigration and Worker Registration) Regulations 2004 SI 2004/1219, as amended by reg 3 Accession (Worker Authorisation and Worker Registration) (Amendment) Regulations 2009 SI 2009/2426.