Select Committee on European Scrutiny First Report


COM(01) 127

Draft Council Directive concerning the status of third-country nationals who are long-term residents.

Legal base: Articles 63 (3) and (4) EC; consultation; unanimity of participating Member States
Document originated: 13 March 2001
Forwarded to the Council: 25 April 2001
Deposited in Parliament: 4 May 2001
Department: Home Office
Basis of consideration: EM of 20 June 2001
Previous Committee Report: None
To be discussed in Council: No date set
Committee's assessment: Legally and politically important
Committee's decision: Not cleared; further information requested


6.1  The conclusions of the Tampere European Council called for third-country nationals holding long-term residence permits in a Member State to be granted by that State "a set of uniform rights which are as near as possible to those enjoyed by EU citizens" (paragraph 12). The Directive has been drafted by the Commission in response to that conclusion.

6.2  The UK's equivalent to "long-term residence" is known as indefinite leave to remain (ILR). It is generally granted after four years' legal and continuous residence. The status is of unlimited duration and does not need to be renewed.

6.3  As the proposal's legal base falls within Title IV of the EC Treaty, the UK has three months from its formal publication 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 annexed to the EC Treaty and the Treaty on European Union).

6.4  Our sister Committee in the House of Lords is undertaking a short inquiry into the proposal. It has received written comments from a number of organisations[7] which all generally welcome the measure (while identifying shortcomings in it) and see advantages in the UK's opting into it.

The draft Directive

6.5  The Parliamentary Under-Secretary for Europe, Community and Race Equality (Ms Angela Eagle) helpfully outlines the contents of the proposal as follows:

    "—  Scope

    "The draft Directive would require the grant of long-term resident status to all third-country nationals who request this status, who have resided legally and continuously in the territory of the Member State concerned for a period of five years, and can demonstrate stable and adequate resources and sickness insurance covering all risks. This period would include short absences, or absences for specified purposes such as serious illness or military service. This period would also include residence in a second Member State as a member of a family of a long-term resident exercising the right of residence under this draft Directive, or as a member of the family of a citizen of the Union exercising the right to free movement of persons.

    "Residence as a student would not normally qualify, but half of pre-doctoral students' duration of residence could count towards the duration requirement, provided that the student subsequently switched to a different category. Third-country nationals who had studied for five years for a doctorate would qualify for the duration of residence requirement.

    "The draft Directive would not apply to the following third-country nationals: those who reside in the Member State through temporary protection, or have been granted a subsidiary form of protection, or those who await the outcome of an application for refugee status; au pair or seasonal workers; cross-border service providers or posted workers; members of the family of EU citizens who had not obtained the right of permanent residence in their host Member State; and diplomats or international civil servants.

    "Third-country nationals would have to provide evidence of stable resources and sickness insurance to gain long-term resident status, unless they were refugees or third-country nationals born in the territory of a Member State.

    "Member States could refuse to grant long-term resident status where the personal conduct of the person concerned constituted an actual threat to public order or domestic security.

    "—  Procedure for application for long-term resident status

    "The draft Directive would require Member States to consider an application for long-term resident status within six months. That period would be extended where additional documentary evidence was required of the applicant. The draft Directive would require that long-term residents be issued with an EC residence permit, and would limit the charges that can be required for the permit. It would also provide procedural guarantees for the application procedure.

    "—  Withdrawal of status

    "The draft Directive would require the withdrawal of long-term resident status: where the long-term resident had been absent for two years; where the status had been fraudulently acquired; where long-term resident status had been acquired in a second Member State; or where the long-term resident was subject to an expulsion measure. Long-term residents would have the right to judicial redress where an expulsion decision had been adopted. Member States would be required to have regard to particular factors, such as duration of residence, when deciding to expel a long-term resident, and criminal convictions would not in themselves automatically justify an expulsion decision...

    "—  Rights of long-term residents

    "The draft Directive would provide for long-term residents to enjoy equal treatment with Member State nationals for, as a minimum: access to employment and self-employed activity; education and vocational training; the recognition of qualifications; social protection including health care; social assistance, social and tax benefits; access to goods and services, including housing; freedom of association, affiliation and membership of workers' or employers' organisations; and free access to the Member State's territory.

    "The draft Directive would not prejudice more favourable national provisions by Member States for the issuance of residence permits.

    "—  Right of residence in a second Member State

    "Under the draft Directive, long-term residents would be able to exercise the right of residence in a second Member State. To do so, they would have to engage in economic activity as an employed or self-employed person, or have sufficient resources to avoid becoming a financial burden on the second Member State. They would also need adequate sickness insurance. Long-term residents would enjoy the same rights that they would have enjoyed in the first Member State, with the exception of the right to social assistance and to study grants. Their family members could accompany them. The second Member State could withdraw the right to residence where the conditions for residence were no longer met.

    "There would be procedural requirements on the Member State and guarantees for the applicant, in the consideration of applications for residence in the second Member State. There would also be evidential requirements, for the applicant, of proof of compliance with conditions for residence in the second Member State. Member States could refuse applications where there was an actual threat to public order or domestic security, or for reasons of public health.

    "Long-term residents exercising their right of residence in a second Member State would retain their long-term resident status in the first Member State, under the draft Directive. After five years' legal residence in its territory, long-term residents who had exercised the right of residence in the second Member State could apply to that Member State for long-term resident status. Where this was granted, the first Member State would be required to withdraw long-term resident status from the individual concerned."

The Government's view

6.6  We concentrate below on the key issues raised in the Minister's full and detailed Explanatory Memorandum. She begins by outlining the impact which the proposal would have on UK law, as follows:

    "The duration of residence requirement differs from the requirements provided for in some cases by the UK immigration rules. The possible grounds to expel long-term residents are narrower than the grounds on which the UK can currently expel those with indefinite leave to remain.

    "The draft Directive would give a qualified right of residence and the right to work as employed or self-employed persons in the UK to third-country nationals who are long-term residents in other EU Member States. They do not have such a right under UK law.

    "Article 4 of the proposed Directive contains a non-discrimination clause, which is modelled on the Charter of Fundamental Rights (Article 21). Further consideration is being given to whether such a provision is within the Community's powers under Article 63 of the TEC, and to its implications in relation to the non-binding status of the Charter of Fundamental Rights."

6.7  The Minister then points out that the definition of third-country nationals includes all those who are not EU citizens within the meaning of Article 17 (1) EC, adding:

    "This would...therefore include those British nationals who do not have the right of abode in the UK, including British Nationals (Overseas), British Protected Persons, British Overseas Citizens, British Dependent Territories Citizens and most British Subjects."

6.8  In relation to Article 12 of the draft Directive, which lists the areas in which long-term residents would be granted equal treatment with nationals, the Minister tells us that most of the benefits would be similar to those granted to people with ILR. Current UK practice in relation to higher education would be incompatible with the requirement, however. The proposed arrangements would have implications for the UK in student support costs and in lost overseas income.

6.9  In relation to those Articles which address the right to residence in a second Member State, the Minister says

    "The rights awarded to the third-country national who was long-term resident in a first Member State, but was exercising their right of residence in a second Member State, would be broader than third-country nationals currently receive in the UK... Long-term residents currently have no rights of residence or rights of access to the labour markets elsewhere in the EU, and vice versa. This is... a potential benefit to UK long-term residents, but also would prejudice the maintenance of our national immigration controls.

    "Long-term residents exercising their right of residence would enjoy equal treatment with nationals apart from in the field of social assistance and study grants. 'Social assistance' covers income-related benefits, including income support and income-based jobseeker's allowance. It is unlikely to include non-contributory benefits. This means that this category of third-country nationals might have access, for example, to Attendance Allowance, Disability Living Allowance and Invalid Care Allowance. Current UK practice is that third-country nationals qualify for non-contributory benefits after 26 weeks' residence, but only if they have no condition or limitation on their leave. This means that the draft Directive would give those long-term resident third-country nationals, who were resident in the UK for a limited period, wider access to benefits.

    "The draft Directive provides for family members who are joining a long-term resident who has exercised his/her right of residence in a second Member State. It does not include the UK's requirements for entry clearance or evidence of accommodation."

6.10  Turning to the issue of frontier control, the Minister explains:

    "It would be necessary to explore further the practicalities of how UK controls would operate in respect of those exercising rights under this draft Directive. In practice, the UK would probably have to allow a long-term resident from another Member State to enter and remain while their right of residence was considered.

    "Questions would also arise as to whether the UK could continue to subject to immigration control someone who had achieved long-term resident status in the UK, who was re-entering the UK from another Member State.

    "The UK would be required to accept back a third-country national long-term resident of the UK where another Member State had withdrawn that person's residence permit, without imposing immigration control on that individual.

    "Acceptance of this Directive would result in third-country nationals long-term resident in other Member States, having greater access to the UK labour market through the exercise of their right of residence. Other Member States' selection processes would, therefore, affect the UK's non-EEA labour force."

6.11  The Minister tells us that the Government has not yet decided whether to opt in to the draft Directive. It will inform us of its decision.


6.12  We thank the Minister for her full and detailed Explanatory Memorandum on this draft Directive. At a later stage, we may wish to recommend it for debate. Meanwhile we have a number of questions.

6.13  First, in relation to the draft Directive itself, we note that the organisations that have written to the House of Lords have raised several issues. In particular they have concerns:

  • about the categories of third-country nationals excluded from the scope of the proposal (see paragraph 6.5 above), especially those granted temporary, or a subsidiary form of, protection;

  • that the proposed five-year period is out of step with the shorter timescales provided to Turkish nationals legally employed in the EU by Decision 1/80 of the EC-Turkey Association Council and its subsidiary legislation;

  • that several aspects of the proposal do not provide equal rights for family members of long-term residents.

6.14  We ask the Minister whether she shares these concerns, and whether there are other aspects of the measure where she considers more consistency or clarity is needed.

6.15  Turning to the implications of the draft Directive for the UK, we note that the key question for the Government is whether participation would be consistent with the maintenance of border controls. We are surprised to see no reference to consultation with industry about this proposal. We draw the Minister's attention to the potential benefits to employers in relation to recruitment and transfer of staff from other Member States, and ask whether she agrees that there would be advantages for the UK in this fuller realisation of the internal market.

6.16  The Minister points out a number of ways in which indefinite leave to remain differs from the proposed status of long-term resident. We ask her to assess whether there would be significant disadvantages for (a) third-country nationals and (b) the UK government in moving from the former to the latter.

6.17  In several instances, the Explanatory Memorandum suggests that implementation of the draft Directive would involve the UK in increased costs. We ask the Minister why a regulatory impact assessment "remains under consideration"; it would seem a useful tool in helping the Government come to a decision over whether to opt in to the measure.

6.18  There is only one reference in the Explanatory Memorandum to "the potential benefit to UK long-term residents". In view of the particular problems faced by the UK's long-term resident third-country nationals as a result of the UK's non-participation in the Schengen area, we ask whether the Minister believes that, in this respect, the measure would have benefits.

6.19  We ask the Minister to explain further her concerns about whether Article 4 of the draft Directive is within the Community's powers under Article 63EC. We note that the Commission's Explanatory Memorandum refers to Article 4 of the draft Directive as being 'in accordance with' Article 21 of the Charter of Fundamental Rights, and that recital (4) also refers to the Charter, and we ask the Minister for her views on the appropriateness of such references to the Charter, given its non-binding status.

6.20  We shall keep the document under scrutiny until we have the Minister's response.

7  Joint Council for the Welfare of Immigrants; Statewatch; Advice on Individual Rights in Europe. Back

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