TWELFTH REPORT
The European Scrutiny Committee has made further
progress in the matter referred to it and has agreed to the following
Report:—
THE RIGHT TO FAMILY REUNIFICATION
(20806)
—
COM(99) 638
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Draft Directive on the right to family reunification.
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| Legal base:
| Article 63(3)(a) EC; consultation; unanimity
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| Department: |
Home Office |
| Basis of consideration:
| Minister's letter of 24 February 2000
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| Previous Committee Report:
| HC 23-vi (1999-2000), paragraph 3 (26 January 2000)
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| To be discussed in Council:
| Date not set
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| Committee's assessment:
| Politically important
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| Committee's decision:
| Not cleared; awaiting further information
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Background
1.1 The proposal aims to identify guiding
principles for a common European policy on family reunion, in
order to provide consistency in relation to third country nationals,
and to reduce the likelihood of their selecting a country of residence
purely on the basis of the generosity of the terms available.
1.2 As the legal base falls within Title
IV of the EC Treaty, the UK has three months from the formal publication
of the proposal in which to decide whether to opt in to the measure
(in accordance with the provisions in the Protocol on the position
of the United Kingdom and Ireland now annexed to the EC Treaty
and the Treaty of European Union).
1.3 When we last considered the proposal
(in January), we posed a number of questions to the Minister of
State at the Home Office (Mrs Barbara Roche). She has now responded.
The Minister's letter of 24 February
1.4 The Minister sets her response in the
context of some introductory comments, saying:
"The Government's support
for the Tampere Conclusions (at which the European Council reiterated
that the Member States of the European Union must ensure fair
treatment to third country nationals who reside legally on the
territory of its Member States) is within the context of the Protocol
on the position of the UK and Ireland, annexed to the EC Treaty
by the Treaty of Amsterdam. The UK Government secured this Protocol
for the express purpose of ensuring that it retained the right
to determine its own immigration policies. Whilst the Government
supports co-operation within the European Union, it has indicated
that its guiding principle will be the maintenance of its frontier
controls and effective immigration policies.
"We are taking an active part in the Working
Group discussing this draft Directive in order to assess the UK's
position in relation to that of other Member States and will draw
attention to the policy issues we have identified. We will exercise
our opt-in only if we are satisfied that to do so would not be
detrimental to our own immigration controls."
1.5 The Minister then addresses each of
our questions (repeated below and set in italics), as follows:
"The tenor of the
EM suggests that the UK may not wish to opt in to this measure.
Does the Minister see any disadvantages if that is the case? May
there, for example, be a negative impact on businesses which depend
on attracting professionals from third countries?
"I am naturally concerned that the UK should
be as open as possible to business professionals from third countries.
Arrangements already exist for the UK to attract professionals
from third countries and I am not convinced that the effect of
the Directive, once implemented, would be to make the UK noticeably
more attractive for this category. The Immigration Rules already
make provision for the admission of business visitors, who may
be accompanied or joined by a spouse or unmarried partner and
children under 18. Where a principal applicant qualifies for settlement
in the UK, family members already in the UK may similarly be granted
settlement. I do not anticipate a negative impact on business
if we choose not to exercise our opt-in."
"The Minister suggests that action at the
level of the Member States could be as effective as action at
Community level. How could such Member State action ensure consistency
and reduce the likelihood of third country nationals selecting
a country of residence purely on the basis of the generosity of
the terms of the conditions available (the aims of the measure)?
"Several Member States have mirrored concerns
identified in the Government's Explanatory Memorandum. It is clear
that many countries have difficulty with these proposals and unanimity
will not be easy to achieve.
"If, within the three-month period allowed in
the Protocol, the Government decides not to exercise its opt-in,
this would not prevent us from doing so at a later stage if the
Directive which is finally agreed is acceptable and we decided
that we preferred not to be out of step with measures being operated
in other Member States. In the alternative, where difficulties
remain, we could choose to shadow selected individual measures
through UK Immigration law, whilst not implementing those which
would undermine existing immigration policy.
"A lack of a common approach by all the Member
States was recognised as a potential outcome for Title IV measures
when the UK and Ireland's Protocol was negotiated. In any event,
Denmark's special position under the Treaty means that it cannot
be bound by Community law on this measure."
"The current situation with regard to family
reunion for Union citizens who have not exercised their right
to free movement of persons is clearly anomalous. Does the Minister
see no merit in making it comparable with those who have exercised
this right?
"It is recognised that the situation for British
nationals exercising, and not exercising, Treaty rights may appear
anomalous, but the two situations are not comparable. The ECJ
has ruled that British citizens who have exercised Treaty rights
in an economic capacity in another Member State may benefit from
Community law when they return, with their spouse, to work in
the UK. The conditions of residence from which the third country
national spouse benefits in such a case (5 year residence document,
with the possibility of applying under the Immigration Rules for
indefinite leave to remain after 4 years) are very different from
those from which a third country national spouse would benefit
under the Immigration Rules (indefinite leave to remain after
one year). Compared to EC law, the timescale for ILR[7]
is far better under the Rules but, of course, the tests are rigorous
(intention to live together; subsisting marriage; maintenance
and accommodation). We see no merit in making arrangements comparable
to the situation where people seek to avoid the requirements of
the Immigration Rules through the EC law route. The Government
could not accept Articles 1-4 of the Directive for this reason."
"By what criteria does the Government distinguish
between a genuine and a spurious exercise of Treaty rights, in
the case of UK citizens relying on such an exercise in another
Member State to found a claim for family reunification?
"There is no EC jurisprudence on what would
constitute a spurious exercise of Treaty rights. The Court did
however say, in the case of Surinder Singh, that 'the facilities
created by the Treaty cannot have the effect of allowing the persons
who benefit from them to evade the application of national legislation
and of prohibiting Member States from taking the measures necessary
to prevent such abuse'[8].
Such abuse could include applications where the marriage is one
of convenience or where the British citizen has not exercised
an economic Treaty right for a reasonable period to justify use
of the Surinder Singh provision."
"We agree that it is undesirable for young
people to be prohibited from taking employment or vocational training.
However, the prohibition appears to apply only to those forced
to remain dependent (through disability, for example). If this
is the case, what are the grounds for the Minister's objection?
Does this objection represent a shift in view from that expressed
in relation to the Commission proposals on free movement of workers[9]
where the Government was opposed to family members (as defined
in those measures) having access to direct rights, including employment?
"This does not represent a change in view from
that expressed in relation to the Commission proposals on free
movement of workers... The definition of family members in that
proposal, who would be entitled to a whole range of rights including
the right to engage in economic activity, was much wider than
currently provided for under the Immigration Rules or EC law.
It encompassed all family members, no matter how distant, and
regardless of whether or not they were dependent on, or living
with, their UK based sponsor. The Government made it clear in
its Explanatory Memorandum that such provisions would have financial
implications for spending departments (e.g. social security funds),
would put pressure on the UK's immigration control, and went beyond
what the Government regarded as reasonable measures to create
free movement for workers.
"Under the Immigration Rules, persons admitted
to the UK on the basis that they are living in compelling compassionate
circumstances overseas and that they are wholly or mainly dependent
upon their UK based sponsor are given settlement on arrival and
are thereby entitled to study or take employment. In the case
of elderly dependants the sponsor is required to sign a five-year
undertaking to support the applicant so that they do not become
a burden upon public funds. Because of their age such people are
not likely to find employment.
"However, the situation for young dependants
is somewhat different. The fact that a person is incapable of
caring for themselves overseas does not necessarily mean that
they would be unable to do so in the UK. I am not satisfied that
Article 12 clearly restricts the prohibition on young people taking
employment or vocational training to those forced to be dependent
by reason of their ill health. This is an issue which needs to
be clarified by the Working Group.
"My concern is that where a third country national
has been admitted for settlement to the UK by reason of his or
her dependency on their UK based sponsor, we should not prevent
them from taking more control of their own lives where the opportunity
arises. They would be regarded as settled in the UK and should
be treated the same as anyone else; therefore being able to take
employment or training should be open to them if their sponsor
is no longer able to support them. If their sponsor should cease
to be able to care for them, it would be far better if they were
equipped to care for themselves to some degree rather than becoming
a burden on the State."
"Several of the Minister's objections concern
a lack of flexibility in the proposals, particularly where time
scales are concerned. Would she agree, however, that there is
a danger that procedures will be long drawn out, unless some time
limitation is imposed?
"Many Member States have expressed concern over
the Commission proposal that the right to family reunification
should be linked to the period of time the third country national
has been legally resident in the Member State. They would prefer
the right to be linked to the purpose for which the sponsor has
been admitted. Most Member States have immigration categories
which do not allow for family reunion, for example au pairs and
working holidaymakers, and yet for which periods of leave in excess
of 1 year are granted. These categories should clearly be excluded
from the Directive.
"The Committee also raised whether the right
to family reunion should be triggered as soon as 12 months' leave
to remain is granted, or only when that period of time has been
spent in the Member State. Concerns were expressed by the Working
Group that a time-related Directive would treat those recently
arrived in a Member State as favourably as those who have lived
there legally for many years, including immediate access to the
labour market. Many countries thought this would be perceived
as unfair. However, under the Immigration Rules, family members
joining a principal applicant (with the exception of spouses of
students admitted for less than 12 months) are entitled to take
employment on arrival in the UK.
"As far as time scales for considering applications
are concerned, I appreciate that applications should not be allowed
to remain unresolved for a disproportionate period of time. However,
whilst we are happy to make every effort to meet time targets,
I am not prepared to sign up to a mandatory maximum time scale
for decisions. There must always be flexibility to cater for sudden
unprecedented surges in applications as well as the regular seasonal
fluctuations. We need to maintain overall control of our casework
operation. You will be aware that we are making great efforts
to reduce our backlogs, particularly where applications relate
to the admission of family members. The Committee may be assured
that all applications involving family reunion are dealt with
as quickly as possible within that framework."
"We welcome the information about consultation,
and ask that, in due course, we may know the names of the organisations
with which the issues have been discussed, and the broad tenor
of their comments.
"The NGOs who are being consulted on this Directive
are the RLC[10], the
IAS[11], UNHCR[12],
the Refugee Council, ECRE[13],
ILPA[14], Justice, Scottish
Refugee Council, Amnesty International and JCWI[15].
As yet, they have not provided us with any feedback on the proposals.
We will update the [Committee] with their comments when received."
Conclusion
1.6 We thank the Minister for her detailed
response, which we have quoted in full. It is helpful to have
such a clear statement of the priority which the Government accords
to the maintenance of its frontier controls and effective immigration
policies. We presume that the other Member States are aware of
the UK position and there is therefore no need for it to be spelled
out in Council Conclusions. Nevertheless, it is somewhat disconcerting
that the apparent unanimity of such Conclusions masks significant
differences in Member States' standpoints.
1.7 In relation to our first question
(about possible disadvantages to the UK if it does not exercise
its opt-in), we note that, as UK policy clearly distinguishes
between third country nationals who are business professionals
and others, the Minister does not anticipate a negative impact
on business if the Government should decide not to participate
in the measure.
1.8 Although the Minister does not directly
answer our second question, we infer from her comments
that she accepts that action at the level of the Member States
cannot be as effective as action at Community level, difficult
as that may be to achieve. The fact that other Member States have
special positions under the Treaty does not affect the argument.
1.9 We address the Minister's answers
to our third and fourth questions together since
whether or not it is justifiable to continue to apply different
rules to UK citizens who have, and those who have not, exercised
Treaty rights in another Member State depends crucially , in our
view, on whether there are available to the Government sufficiently
robust criteria by which it can make a workable distinction between
genuine and spurious exercises of such rights. The Government
proffers two criteria on which it relies to identify abusive reliance
on Treaty rights:
(1) applications
where the marriage is one of convenience; and
(2) applications where the UK citizen has
not exercised an economic Treaty right for a reasonable period.
As to (a), the Government has to face
the obstacle of the ECJ judgment in Diatta v Land Berlin[16].
Admittedly, that concerned an apparently genuine marriage in terminal
decline. But the ECJ's preference for form over substance (upholding
the continuing Treaty rights of a third country national spouse
separated from a husband she intended to divorce) should give
the Government pause for thought. We invite the Minister's further
views. As to (b), the Minister gives no indication of what she
regards as a reasonable period. Would it vary according to the
nature of the occupation or the Treaty right relied on? We ask
the Minister to elucidate.
1.10 In relation to our fifth
question (concerned with the prohibition of some young people
from taking employment or undergoing training), we accept that
there is a distinction between the proposals in this draft directive
and that in the Commission proposal on free movement of workers.
While we agree that the issue needs clarification, we also agree
with the Minister's approach, as helpfully set out in her answer.
1.11 We are puzzled by much of the Minister's
response to our sixth question, since she appears to be
addressing matters which we did not raise. Nor are we reassured
by the last part of the response — where she does deal with
our question. It is not always apparent that the Government does
"maintain overall control of [its] casework operation",
and it is at least arguable that the current backlogs might not
have been allowed to develop had maximum time scales for decisions
been in place.
1.12 We are grateful to learn the names
of the organisations which are being consulted on this draft Directive
and thank the Minister for her undertaking to update us with their
comments, once these are received.
1.13 We will keep the document under
scrutiny until we have the Minister's answers to our questions
in 1.9 above , the comments from the NGOs, and more information
about the Government's decision over the exercise of its right
to opt in to the measure.
7 Indefinite leave to remain. Back
8 Case
C-370/90,1992 [ECR] I - 4265. Back
9 (19478)
12122/98; see HC 34-iv (1998-99), paragraph 1 (16 December 1998)
and HC 23-vi (1999-2000), paragraph 5 (26 January 2000). Back
10 Refugee
Legal Centre. Back
11 Immigration
Advisory Service. Back
12 UN
High Commissioner for Refugees. Back
13 European
Council on Refugees and Exiles. Back
14 Immigration
Law Practioners' Association. Back
15 Joint
Council for the Welfare of Immigrants. Back
16 Case
267/83, 1985 [ECR] 567. Back
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