Select Committee on European Scrutiny Fifteenth Report


The European Scrutiny committee has agreed to the following 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:Minister's letter of 3 January 2002
Previous Committee Report:HC 152-i (2001-02), paragraph 6 (18 July 2001)
To be discussed in Council:No date set
Committee's assessment:Legally and politically important
Committee's decision:For debate in European Standing Committee B (together with the draft Directive on the conditions of entry and residence of third-country nationals for paid employment or self-employment)


  1.1  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.

  1.2  As the proposal's legal base falls within Title IV of the EC Treaty, the UK had 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). The UK has decided not to opt in to this measure.

  1.3  When we considered this draft Directive in July, we raised a number of questions with the Parliamentary Under-Secretary of State at the Home Office (Angela Eagle) and kept the document under scrutiny until we received her response. We noted that our sister Committee in the House of Lords was undertaking a short inquiry into the proposal. This has now been published.[1]

The Minister's letter

  1.4  We asked the Minister about some of the issues raised in submissions to the House of Lords. As a supplementary, we asked whether there were other aspects of the measure where she considered more consistency and clarity were needed.

  1.5  As regards those excluded from the scope of the proposal, the Minister explains that the Commission has formally presented a proposal on subsidiary protection to the Council. (We have now reported on this document[2].)

  1.6  The second issue concerned the fact that the proposed five-year residence requirement was out of step with shorter timescales provided to Turkish nationals legally employed in the EU. The Minister tells us:

"The proposal ... is without prejudice to more favourable provisions in Community or mixed agreements that have been or are to be concluded with third countries to govern the legal situation of third-country nationals."

  1.7  She provides a list of relevant agreements.

  1.8  The third issue was concerned with equal rights for family members of long-term residents. The Minister does not fully address this issue (saying nothing, for instance, about the acquisition of long-term residence for family members). However, she spells out the rights granted in the draft Directive and points out that the draft Directive on family reunification[3] is also relevant here.

  1.9  The Minister does not address our supplementary question.

  1.10  In relation to the implications of the draft Directive for the UK, we drew the Minister's attention to the potential benefits to employers in relation to recruitment and transfer of staff from other Member States, and asked whether she agreed that there would be advantages for the UK in this fuller realisation of the internal market. She replies:

"The Government is committed to ensuring that the United Kingdom is competitive in the global economy. This includes ensuring that our employers can obtain highly skilled staff from overseas when required. That is why we have also introduced schemes such as 'Innovators' which facilitates the movement of entrepreneurs to the United Kingdom.

"An individual's decision to migrate to the United Kingdom, or for that matter any other country, is highly complex and involves many factors; any restrictions on movement throughout the European Union will probably form a minor part of that decision. Economic opportunity, family or community ties and the English language are arguably far greater factors in choosing the United Kingdom as a base in Europe.

"It is of course vitally important that third country nationals legally resident in the United Kingdom are able to travel within the Union, not only in relation to their jobs here, but also for recreational and cultural purposes. So, we must ensure that our colleagues in Europe have clear, transparent and quick visa procedures to allow those residing in the United Kingdom to enter the Schengen area.

"It should be noted that the Directive does not provide for movement rights for those who are not long-term residents. Many highly skilled individuals — such as those briefly seconded to a multi-national's UK office — only spend a short time in the United Kingdom as part of their global careers. They would not be considered as long term residents and would not be able to benefit from access to the single market as envisaged by this Directive."

  1.11  In view of the Government's decision not to opt into the Directive, the Minister does not consider it necessary to assess (as we had asked her to) whether there would be disadvantages in moving from the status of Indefinite Leave to Remain (ILR) to the proposed status of long-term resident. Similarly, in response to our suggestion that a regulatory impact assessment would seem a useful tool in helping the Government decide whether to opt in to the measure, she tells us that one has not been completed since the decision has been made.

  1.12  We asked the Minister whether she believed that the measure would have benefits for third country nationals who were long-term residents in the UK. She confirms that, under the Directive, such people would be able to stay in another Member State for a period exceeding three months, but reminds us that the Government has not decided not to opt in to the measure.

  1.13  Finally, we asked the Minister to explain her concerns about Article 4, and to give us her views on the appropriateness of references to the Charter of Fundamental Rights. She replies:

"The Charter is a non-binding instrument, and cannot be said to 'confer' rights. We do not understand the Commission to be saying that the Charter itself confers rights, but at most that it 'enshrines' rights conferred by other instruments. In any event, we do not consider that Article 4 is a necessary or appropriate provision to include in the Directive, for the following reasons.

"It should first be noted that Article 4 is not a free-standing non-discrimination provision, but rather requires the Member States to 'give effect to the provisions of this Directive without discrimination [on various specified grounds]'. The principle of equality or non-discrimination is already a general principle of Community law and as such must be complied with by Member States in implementing a Directive (see ECJ Case C-2/97 Societa Italiana Petroli v Borsana, at paragraph 48). In that context, the intended effect of Article 4 ... is unclear. We do not think that it is appropriate to draw on the Charter in this way in framing substantive provisions of a Directive as it leads to legal uncertainty both as to the effect of the Directive and of the Charter itself."

  1.14  The Minister tells us that she intends to raise these points in discussion with other Member States on this and related Commission proposals



  1.15  We share the Minister's concerns about Article 4 and hope that she will be successful in persuading other Member States to drop or amend it. We thank her for her other answers which are obviously affected by the Government's decision not to opt in to the draft Directive.

  1.16  This is one of several proposals concerning third-country nationals in which the Government has decided not to participate, since they would have the effect of extending free movement rights to third-country nationals. On this proposal, the Minister for State for Asylum and Immigration (Lord Rooker) wrote in a letter to Lord Brabazon of Tara (reproduced in the House of Lords report on this document): "We believe that, whilst the proposed Directive contains many provisions which are entirely consistent with our policy on participation in EU immigration measures, giving third-country nationals an enforceable right to enter the UK, without any checks or safeguards, is not."

  1.17  We have several questions about non-participation.

  1.18  First, it is not clear to us how the Government comes to its decision in these cases. In relation to the current proposal, it did not undertake a regulatory impact assessment. Nor does it appear to have consulted employers' organisations. It would be helpful to know whether the decision is simply taken within the Home Office, and, if not, what other bodies are involved.

  1.19  Secondly, the nature and degree of the UK's involvement in negotiations after its decision not to participate is also not clear to us. In his letter, Lord Rooker states "we shall continue to participate fully in discussion of the text". Is this always the case and, if so, why? How much weight do other Member States give to the views of non-participants?

  1.20  More fundamentally, we wonder how possible it is for the EU to have a coherent policy in this area when one (or more) Member State opts out of significant measures. (We note, in this context, the specific request of the European Economic and Social Committee for the UK, Ireland and Denmark to implement this draft Directive.[4] )

  1.21  We also wonder how the other Member States view the UK's non-participation. As well as the question raised above about the influence the UK can exert in the negotiation of these draft Directives, there are wider issues to consider. For example, we find it hard to believe that other Member States will be particularly impressed by UK efforts to "ensure that our colleagues in Europe have clear, transparent and quick visa procedures to allow those residing in the United Kingdom to enter the Schengen area" (see paragraph 1.10 above).

  1.22  We recognise that the situation facing the Government is not an easy one. We have commented before on the difficulties in dealing with these Directives piecemeal without being able to see the relationships between them[5]. Moreover, it may be (as suggested in our sister Committee's report[6]), that the Commission has not taken the position of the UK and Ireland sufficiently into account in the timing and drafting of these measures.

  1.23  The Government has consistently made it clear that its commitment to the Tampere aim of fair treatment of third-country nationals is conditional on the UK's ability to preserve its frontier controls. Now that it has confirmed that position by deciding not to participate in a number of draft Directives, it seems to us timely for the issues we have raised about non-participation to be debated.

  1.24  We therefore recommend this document for debate in European Standing Committee B, together with the Draft Directive on the conditions of entry and residence of third-country nationals for the purpose of paid employment and self-employed economic activities on which we report in paragraph 3. We further recommend that the draft Directive relating to the conditions in which third-country nationals shall have the freedom to travel in the territory of the Member States for periods not exceeding three months, including a specific travel authorisation and determining the conditions of entry and movement for periods not exceeding three months[7] be tagged to the debate.

1  The legal status of long-term resident third-country nationals: Fifth Report from the Select Committee on the European Union, HL Paper 33 (2001-02). Back

2  (22885) 13620/01; see HC 152-xiv (2001-02), paragraph 1 ( 23 January 2002). Back

3  (22741)12022/01; see HC 152-vi (2001-02), paragraph 14 ( 14 November 2001). Back

4  Opinion on the proposal for a Council Directive concerning the status of third-country nationals who are long-term residents: European Economic and Social Committee, CES 1321/2001, 17-18 October 2001. Back

5  In relation to (22627) 11803/01; see HC 152-ix (2001-02), paragraph 8 (5 December 2001). Back

6  See paragraphs 40 and 56. Back

7  (22564) 10865/01; see HC 152-xii (2001-02), paragraph 15 ( 16 January 2002).  Back

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