Customs and Immigration Service
Memorandum
To: Minister for Home Affairs | |
From: Michael Robinson, Head of Service |
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Date: 8 May 2013 |
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Labour Market Restrictions – Croatia
Introduction
One of the priorities of the States of Jersey Strategic Plan 2012 is to manage population growth and migration through measures which include the use of legislation to support the engagement and training of locally qualified people.
Croatia is to join the European Union on 1 July 2013 and, on 17 January 2013, at the request of the Minster for Home Affairs, the Migration Advisory Group (“MAG”) considered a report by the Customs and Immigration Service in respect of the imposition of transitional labour market restrictions on nationals from Accession States.
The MAG noted that labour market restrictions were not introduced in Jersey when Romania and Bulgaria joined the European Union (“the EU”) in 2007, but recommended the introduction of labour market restrictions for Croatian nationals from 1 July 2013.
Croatian nationals in Jersey, like the UK, are currently subject to control under the Immigration Act 1971. Where they are seeking to enter or remain in Jersey for the purpose of employment, they will need to obtain leave under the relevant provisions of the Directions of the Lieutenant-Governor and, on the basis of a permit issued in accordance with the Immigration (Work Permits) (Jersey) Rules 1995.
After 1 July 2013 Croatian nationals will no longer be subject to immigration control and will no longer require leave to enter or remain in Jersey.
European Commission – transitional provisions for workers from Croatia
The legal basis for the planned transitional arrangements is Annex V of the Treaty on the Accession of Croatia to the EU (“the Treaty”), which provides for the Member States to apply national measures regulating Croatian nationals’ access to their labour markets for a period of up to 5 years, and in case of serious disturbance to their labour markets or the threat thereof, and after notifying the Commission, for a further 2 years (i.e. up to a maximum of 7 years in total).
Individual governments of the countries that are part of the EU can decide themselves whether they want to apply restrictions to workers from these countries, and what kind of restrictions. However:
- They are not allowed to restrict the general freedom to travel, only the right to work in another country as an employed person.
- For the first two years after a country joined the EU, national law and policy of the countries that were already part of the EU determines access to the labour market of workers from that country so that they may need a work permit. If a country wants to continue to apply these restrictions for three more years, it must inform the Commission before the end of the first two years.
- After that, countries can continue to apply restrictions for another two years if they inform the Commission of serious disturbances in their labour market; all restrictions must end after 7 years.
- Workers who are subject to national restrictions must be given priority over workers from non-EU countries.
- Once they are legally employed in another EU country, workers are entitled to equal treatment with national workers of the country where they are working.
- The countries whose nationals face such restrictions may impose equivalent restrictions on workers from that country.
The United Kingdom Home Office has published a Statement of Intent on the application of labour market restrictions on nationals of Croatia. Under the transitional restrictions which the UK Government intends to introduce, Croatian nationals will be subject to a requirement to obtain work authorisation if they intend to undertake employment in the UK. It will be necessary to obtain such authorisation before the worker commences employment in the UK, and authorisation will only be granted to those Croatians who meet the requirements for skilled economic migrants, with certain exceptions.[1]
Although Jersey is not party to the Treaty, powers under the Immigration Act 1971, as extended to Jersey, can be invoked so that restrictions continue to apply to Croatian nationals in the same way as they do for persons of non European Economic Area (“EEA”) nationality.
Considerations
In considering whether or not to apply transitional arrangements on the free movement of labour for Croatian nationals to the Jersey labour market from 1 July 2013 the Minister may wish to consider the following:
- MAG
The recommendation from the MAG to introduce employment restrictions.
- Objectives
The purpose of the imposition of transitional controls is to prepare the Jersey labour market for full access by ensuring that migration from Croatia takes place in a managed way and only where there is shown to be an economic need. Given the current period of economic weakness in Jersey, and high levels of unemployment, these controls would avoid any risk of further deterioration.
- Impact
The numbers of Croatian nationals living and working in Jersey is currently negligible (no Croatians were recorded as being resident during the 2011 census) and there are no particular historical, economic or cultural ties between Jersey and Croatia that would in themselves give rise to significant migration. At about 4.3 million persons, the population of Croatia represents only 0.85% of the total population of the EU (some 500 million persons).
Whilst it is not possible to assess, with any certainty, the impact upon Jersey of a non-introduction of labour market restrictions on Croatian nationals, it is reasonable to anticipate a smaller inflow given the significantly smaller population of Croatia than previous accession countries such as Poland and Romania . It should be noted that no transitional labour market controls were imposed in Jersey in respect of the accession of Romania and Bulgaria on 1 January 2007, nor the ‘A8’ States[2] on 1 May 2004.
The following figures and tables are drawn from the 2011 Census and are intended to place into context the number and proportion of European nationals resident in Jersey:
Jersey’s Population by Place of Birth[3]
| Persons | Percent Of Total Population |
| | |
Jersey | 48,653 | 50 |
British Isles | 30,223 | 31 |
Portugal / Madeira | 7,031 | 7 |
Poland | 3,133 | 3 |
Ireland (Republic) | 1,880 | 2 |
Other European country | 3,146 | 3 |
Elsewhere in the world | 3,791 | 4 |
Total | 97,857 | 100 |
Of those born in an ‘other European country’ or ‘elsewhere in the world’, the top 10 most frequent countries of birth for this group are shown below. Bulgarian nationals do not feature in the 10 most frequent countries of birth but are represented for illustrative purposes below.
| Persons | Percent of Total Population |
France | 857 | 0.88 |
South Africa | 571 | 0.58 |
Romania | 463 | 0.47 |
Germany | 356 | 0.36 |
India | 325 | 0.33 |
Australia | 303 | 0.31 |
Italy | 230 | 0.24 |
Thailand | 215 | 0.22 |
U.S.A. | 193 | 0.20 |
Canada | 177 | 0.18 |
Bulgaria | 57 | 0.06 |
Whilst it is difficult to draw firm conclusions from currently available data the Jersey Labour Market report[4] at December 2012 states that:
- total employment (53,690) was 210 lower than in December 2011, which had recorded the highest level of December employment in Jersey for at least 15 years
- total in employment in calendar year 2012 was about 200 lower than in 2011 but was about 200 higher than in 2010
- the private sector saw a decrease of 320 staff compared with December 2011, the public sector recorded an increase of 110 staff over the same period
- the net decline in private sector employment comprised of a decrease of 640 full-time employees and an increase of 320 part-time employees
- the number of vacancies in the private sector was 350 lower than in December 2011 and was at the lowest level for at least 13 years
- employment in the wholesale and retail, construction and finance sectors were down compared with December 2011
- hotels, restaurants and bars and education, health and other services both recorded increases of almost 300 staff on an annual basis
The report also provides some detail on ‘employment by nationality’:
Utilising data from the Social Security Department (SSD) it is possible to gather an insight into the make up of Jersey’s workforce by nationality. However, in interpreting these data it is important to understand some key points:
o the nationality data compiled by SSD is based on contributions paid on behalf of contributors (employees only, excluding the self-employed);
o the number of contributions from unique contributors will differ from the number employed primarily because the Social Security data refer to contributions paid over the entire month, whilst the employment data is a point in time estimate at either 30 June or 31 December each year. As a result of this timing difference it is not possible to undertake a direct comparison of social security contributions and numbers in employment;
o nationality recorded by SSD is self-reported and historically has not been a key variable for social security purposes. As a result it is not currently possible to separate Jersey and United Kingdom nationals. These two groups are the largest two nationalities working in Jersey.
Bearing in mind these caveats, during December 2012;
around 71% of contributors were from Jersey/UK nationals;
the number of unique contributors which were paid from (or on behalf of) nationals from A8 countries (2,720) was 440 lower than in December 2011;
the reduction in contributions for/by A8 nationals was driven by a reduction in those made for/by Polish nationals (down 390);
the number of unique contributions for/by Portuguese nationals was 5,620, a decrease of 180 on an annual basis.
For the reasons given above, the actual numbers of people in work at a given point in time will be lower than the figures based on the number of unique contributors.
Historic Labour Market Reports from December 2010 onwards indicate a decreasing trend in the number of A8 nationals working in Jersey. One conclusion to be drawn is that the emigration of Polish nationals from Jersey is being off-set, at least in part, by the immigration of Romanian nationals. Without further research the extent to which these patterns affect overall population size is not readily apparent.
It is assessed that the impact on business will be negligible given that the application of transitional controls involves the continued application of existing controls.
- Costs
There would be minor costs associated with implementation, training and familiarisation but these can be met from within the existing budget of the Customs and Immigration Service.
- Benefits
The main benefit would be to limit the employment of Croatian nationals to skilled employment using the existing requirements of the Immigration Work Permit (Jersey) Rules, 2005 which regulate the taking of employment by persons subject to immigration controls.
These requirements are supplementary to the provisions of Control of Housing and Work (Jersey) Law 2002 which comes into force on 1 July 2013.
- Risks
The risk in not introducing transitional restrictions on Croatian nationals is that it could lead to significant flows of Croatian nationals seeking employment in Jersey, at a time when the States of Jersey is encouraging economic recovery and growth, and the reduction in levels of unemployment.
Conclusion and proposed restrictions
If the Minister is minded to proceed with the imposition of labour market controls on Croatian nationals from 1 July 2013 a Ministerial Decision should direct the Customs and Immigration Service to instruct the Law Draftsman to draft the necessary provisions.
The Customs and Immigration Service recommends that the following principles be applied (these are largely based upon the United Kingdom’s Statement of Intent and on provisions contained within ‘The Immigration (Accession) (Workers from Bulgaria and Romania) (Guernsey) Rules 2006’.
- Croatian nationals are currently subject to immigration control under the Immigration Act 1971. Where they are seeking to enter or remain in the Bailiwick of Jersey (“Jersey”) for the purposes of employment they will need to obtain leave under the relevant provisions of the Directions of the Lieutenant-Governor.
- After 1 July 2013 Croatian nationals will no longer require leave to enter and will benefit from free movement. In practice, this means that they will be able to reside in Jersey without restrictions, whether or not they intend to take employment.
- Rules made by the Minister under section 1(4) of the Immigration Act 1971, as extended, would have the effect of continuing to apply the employment restrictions to which Croatian nationals are currently subject under Immigration legislation in the same way as they are for persons of non EEA nationality.
- In practical terms the Rules would restrict Croatian workers to work in only skilled occupations subject to the requirements of the Work Permit (Jersey) Rules 2005 being met.
- Croatian nationals would therefore be subject to a requirement to obtain work authorisation (i.e. a work permit) to take employment in Jersey. It will be necessary to obtain such authorisation before the worker commences employment in Jersey. The existing work permit fee structure would apply to applications made in respect of Croatian nationals.
- The following persons would be exempt from control:
- Those Croatian nationals who are legally present in Jersey on the date of accession and who, on that date, are not subject to any restrictions on working (e.g. those Croatian nationals who have already been granted settlement);
- Those Croatian nationals who are legally working in the Bailiwick of Jersey on the date of accession and have been legally working for an uninterrupted period of 12 months ending on that date;
- Those Croatian nationals who work legally for an uninterrupted period of 12 months falling partly or wholly after the date of accession;
- Those Croatian nationals who are also a national of the UK or of another Member State whose nationals are not subject to similar restrictions;
- Those Croatian nationals who are also the spouse or civil partner of a national of the United Kingdom or the family member of an EEA national who has a right to reside in the UK, except where that EEA national is subject to work authorisation;
- Those Croatian nationals who are studying in Jersey shall be able to engage in employment without requiring work authorisation provided they have obtained written permission from the Customs and Immigration Service confirming that they are exercising a Treaty right as a student;
- Work in a self-employed capacity will not be subject to work authorisation. Those exercising a right to reside as a self-employed person (or as a self-sufficient person) will, however, be subject to work authorisation in the event that they go on to engage in work in an employed capacity;
- The family members of a Croatian national who is working in accordance with the work authorisation requirements will not themselves be subject to the work authorisation requirement.
- Sanctions – Penalties will be imposed for working in breach of the work authorisation requirement.
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