Select Committee on European Scrutiny Fifteenth Report




COM(01) 387

Commission Communication on an open method of co-ordination for the Community immigration policy.

Legal base:
Document originated:11 July 2001
Forwarded to the Council:16 July 2001
Deposited in Parliament:12 September 2001
Department:Home Office
Basis of consideration:Minister's letter to Lord Brabazon of 3 January 2002
Previous Committee Report:HC 152-ix (2001-02), paragraph 3 (5 December 2001)
To be discussed in Council:No date set
Committee's assessment:Legally and politically important
Committee's decision:Cleared


  8.1  This Communication proposes employing the open method of co-ordination (already used in relation to the Employment Strategy and the EU Social Policy Agenda) to support the development of the Community immigration policy. This method involves an annual cycle of adoption of guidelines by the Council, the development of National Action Plans by Member States, and the drafting of a synthesis report evaluating the Plans against the guidelines.

  8.2  When we considered the document in December, we noted a certain caution in the Government's approach to the proposal, despite its general welcome for the open method of co-ordination. We also noted that our sister Committee in the House of Lords had asked the Parliamentary Under-Secretary of State at the Home Office (Angela Eagle) a number of questions about the proposal. We decided to keep the document under scrutiny until we saw her response.

The Minister's letter

  8.3  The Minister has now provided a very full response to our sister Committee's questions, and copied it to us. The Committee asked whether the Communication represented a first step towards harmonisation of immigration policies across the EU. The Minister contrasts the immigration situation with that relating to asylum, where Member States are seeking a high degree of convergence. She says:

"In the field of immigration, the open co-ordination method recognises that whilst the multi-dimensional international nature of migration requires consultation, co-operation and a degree of policy consensus, Member States should remain responsible for national policy and implementation. The Commission will propose guidelines to constitute a framework within which Member States will be encouraged to co-ordinate their policies with the emphasis on information exchange.

"The final guidelines have not yet, however, been tabled and neither these nor the Communication itself have been discussed in any depth. So it is rather difficult to judge either the level of prescription the Commission might eventually seek to impose or the reaction of the majority of Member States. We know only that a number have expressed some concern that the reporting obligation should not be too burdensome.

"The UK considers gradual policy harmonisation is an appropriate approach in this area, but re-affirms the right of Member States to determine immigration policy in accordance with national interests. The UK approach to measures proposed in this area will be influenced by its Protocols secured at Amsterdam which enable the UK to participate in measures provided they are consistent with our ability to determine admissions policy and maintain our frontier controls."

  8.4  The Minister then addresses our sister Committee's questions about the nature of "soft law" (as represented by policy guidelines), and the extent to which it is really distinct from "hard law". She comments:

"The Committee has raised some legitimate concerns about the impact 'soft' law can have on 'hard' law, for example, if used by the ECJ to construe 'hard' law. This is a complex area, but the Government does not consider that simple policy co-ordination will affect this. The guidelines themselves will be based on objectives already agreed at Tampere which cover the four key areas: partnership with countries, common European asylum system, fair treatment of third country nationals, and more efficient management of migration flows. Co-ordination will be a gradual process which will involve evaluation of Member States' progress in implementing legislative measures they have signed up to. Even where the UK does not participate in EU measures, the Government aims to ensure, where appropriate, that UK immigration policies are broadly in line with those of other Member States. The open method of co-ordination is an appropriate approach to achieving this."

  8.5  Our sister Committee asked whether the Government favoured the open method of policy co-ordination in any other areas. The Minister cites the recent proposal by the Commission that this method should be used for the common asylum policy[30]. She considers the open method of co-ordination a useful way to share best practice, and thinks it may well be of benefit in other fields.

  8.6  Our sister Committee asked for information on the reporting cost (an issue raised by the Minister in her Explanatory Memorandum) and the timing and process involved in submitting the National Action Plan. The Minister responds:

"Whilst it is difficult to quantify the precise burden this process will place on Government, particularly in the absence thus far of the guidelines, we envisage the cost will be relatively small. In any case, there is a need for greater co-ordination of policy and the Government does not consider that an annual reporting requirement, which evaluates progress in the previous year and provides a forward look for the upcoming year, is an undue burden. Further information is needed on the process that will be involved, but the Commission is hoping to agree proposals for the guidelines as soon as possible in 2002. Once these have been agreed, Member States will be invited to prepare their first National Action Plans. When preparing the reports, Government will seek to include the views of those affected. We envisage this will include not just other government departments, but also NGOs and other groups based in the community that work with migrants.


  8.7  In her letter to our sister Committee, the Minister's approach to this proposal seems more positive than in her earlier Explanatory Memorandum. She does not appear to envisage any threat to the Government's position in relation to Title IV measures,[31] nor does she consider the annual reporting requirement to be unduly costly or burdensome. She reaffirms the Government's positive stance in relation to the open method of co-ordination.

  8.8  We share with our sister Committee the view that the "soft law" contained in documents such as this needs scrutinising as carefully as proposals for legislation. However, given the Minister's full and positive response, we now clear the document.

30  (23018) 14860/01; see paragraph 10 of this Report. Back

31  The Protocol on the position of the United Kingdom and Ireland provides that measures developed under Title IV EC (Visas, asylum, immigration and other policies related to the free movement of persons) do not apply to these States. However, either may decide to opt in to any proposed measure.


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Prepared 11 February 2002