UK Offence Report

Unauthorised working by accession State national - employee offence and penalty

regulation 16(1) of The Accession of Croatia (Immigration and Worker Authorisation) Regulations 2013

This offence was read from the text as made, and no revised version was available, so a later revocation could not be ruled out. Check the current text at legislation.gov.uk.

What the provision says

1 Subject to paragraph (2), an accession State national subject to worker authorisation who works in the United Kingdom during the accession period shall be guilty of an offence if he does not hold

a valid accession worker authorisation document.

Text as made, from legislation.gov.uk. © Crown copyright, reused under the Open Government Licence v3.0. This is the text as originally made; later amendments are not shown here.

Who it binds, and what has to be proved

Binds
a person
Conduct
breaching the provision
Fault element
Strict liability
Burden of proof
No statutory defence — prosecution proves everything

The prosecution must prove that the conduct happened. This is a strict liability offence as drafted: the provision uses no word of intention, knowledge, recklessness or negligence, so there is no need to show that a person meant to do it, knew about it, or was careless.

Intention, knowledge and carelessness are irrelevant to guilt. They may still matter a great deal to sentence.

The provision states no defence, so the prosecution bears the burden on every element of the offence.

Classifier’s reasoning: no word of intention, knowledge, recklessness or negligence in the offence or its provision.

What would breach regulation 16(1)?

These are illustrations, not law. They are generated from the provision’s own words to show the shape of the offence. Whether any particular conduct is caught depends on the full text, on any amendment since, and on the facts.

  1. On these words an offence is committed where a person works in the United Kingdom during the accession period.
  2. Doing what the provision prohibits, or failing to do what it requires under the Accession of Croatia (Immigration and Worker Authorisation) Regulations 2013.

Penalty

Mode of trial
Summary only — tried in a magistrates’ court
Maximum fine
£5,000
Standard scale
Level 5
Maximum prison (summary)
11.77 months

this is the level 5 value when the instrument came into force (2013-07-01); the standard scale is keyed to the date the offence was committed, and for conduct today the same words mean an unlimited fine.

Sentencing

Offences of this kind are usually sentenced under the guidelines below. This is a mapping by subject, not a finding about this provision, and the links go to a search of the Sentencing Council’s own site.

Prosecution figures

No published per-offence figure was found for this provision, and it could not be matched to a Ministry of Justice offence code. Offences created by statutory instrument very largely do not have one. Absence of a figure is not evidence that the offence is unused.

Status and lifecycle

Current status
Status not determined
Made
12 June 2013
In force from
1 July 2013
Extent
Not stated

How this was established: read from the text as made; no revised version available, so later revocation could not be ruled out.

What the instrument is for

(This note is not part of the Regulations) — the explanatory note published with the instrument, © Crown copyright.

These Regulations make provision in relation to the entitlement of nationals of the Republic of Croatia (“Croatian nationals”) to reside and work in the United Kingdom on the accession of that State to the European Union (“EU”) on 1st July 2013. They give effect to Annex V to the treaty concerning the accession of the Republic of Croatia to the European Union, signed at Brussels on 9th December 2011. That Annex permits member States to derogate from various provisions of freedom of movement of persons provisions under EU law relating to access to their labour markets by Croatian nationals for a transitional period. Part 1 of these Regulations (regulations 1 to 3) contains interpretative provisions. In particular, regulation 2 defines “accession State national subject to worker authorisation” and sets out a number of different classes of Croatian nationals who do not fall within that definition. Croatian nationals who are accession State nationals subject to worker authorisation require authorisation under these Regulations during the accession period (1st July 2013 to 30th June 2018) in order to be able to work in the United Kingdom. Part 2 of these Regulations (regulations 4 to 7) make provision in relation to various existing legal instruments. Regulation 4 states that these Regulations derogate from the free movement of worker provisions in EU law. Regulation 5 provides that, under the Immigration (European Economic Area) Regulations 2006 (S.I. 2006/1003, as amended) (“the EEA Regulations”), accession State nationals subject to worker authorisation cannot be treated as jobseekers and only have a right to reside in the United Kingdom by virtue of their worker status whilst they are duly authorised to do so. Regulation 6 makes transitional provision to take account of the fact that on 1st July 2013 Croatian nationals and their family members will generally fall to be treated for immigration purposes under the EEA Regulations rather than under the third country national immigration regime set out in the Immigration Act 1971 (“the 1971 Act”). Regulation 7 makes provision in relation to EEA registration certificates and residence cards issued under the EEA Regulations to certain Croatian nationals during the accession period. Part 3 (regulations 8 to 10) sets out the requirements for accession State national subject to worker authorisation to obtain authorisation to work. Regulation 8 provides that an accession State national subject to worker authorisation is only authorised to work in the United Kingdom if he or she holds an accession worker authorisation document and is working in accordance with the conditions set out in the document. A passport or other travel document suitably endorsed under the 1971 Act before accession will count as such a document. In other cases, worker authorisation registration certificates issued under regulation 10 are required. Regulations 9 and 10 set out procedure for applying for worker authorisation registration certificates and the issuing of worker authorisation registration certificates. Such certificates can only be issued where a person meets relevant requirements for certain authorised categories of employment.The relevant requirements are set out in the Statement of relevant requirements published by the Secretary of State.In relation to an authorised category of employment, the Statement sets out the relevant requirements which, subject to any necessary modifications, a person in that category of employment was obliged to meet under the immigration rules in force on 9th December 2011 in order to obtain entry clearance or leave to enter or remain in the United Kingdom. Part 4 of these Regulations (regulations 11 to 19) deals with the penalties and offences for breaching the worker authorisation requirements in these Regulations. Regulation 11 provides for the issuing of penalty notices where an employer employs an accession State national subject to worker authorisation in breach of these Regulations. Regulations 12 and 13 set out how an employer can object to, or appeal against, such a penalty notice respectively. Regulation 14 sets out an enforcement provision for the Secretary of State to recover a penalty imposed under regulation 11.Regulation 15 makes it an offence for an employer knowingly to employ an accession State national subject to worker authorisation in breach of the Regulations.Regulation 16 ensures that the Code of Practice issued in accordance with section 23 of the Immigration, Asylum and Nationality Act 2006 has effect in relation to related provisions under these Regulations. Regulation 16 makes it an offence for an accession State national subject to worker authorisation to work in breach of the Regulations. Regulation 17 makes it an offence for a person to obtain a worker authorisation registration certificate by deception. Regulation 18 applies various enforcement provisions in the 1971 Act for the purposes of offences under regulations 16 and 17. The Schedule makes various consequential amendments to the EEA Regulations. An Impact Assessment in respect of the Government’s decision to apply transitional restrictions to Croatian nationals was published on the UK Border Agency’s website on 18 October 2012 and can be found at http://www.ukba.homeoffice.gov.uk/sitecontent/newsarticles/2012/october/39-croatia.

Read the full note and every offence in this instrument

What Parliament said

Mentions of this instrument in Hansard. Parliamentary material is reused under the Open Parliament Licence v3.0.

Other offences in the same instrument

How this was identified as an offence

Everything above rests on the judgement that this provision creates a criminal offence, rather than mentioning one. That judgement is made by rule, from the words of the provision, and this is the rule that made it — with a confidence of 0.92.

Basis
the provision says a person is “guilty of an offence”
Confidence
0.92 of 1.00

A provision that states a penalty for an offence created elsewhere can read very like one that creates an offence, and the rules can mistake the one for the other. If the text quoted above sets a penalty for something made an offence by another provision, treat the classification on this page with that in mind, and read the instrument.

Check the source