Select Committee on European Scrutiny Twenty-Seventh Report





COM(02) 59

Draft Council Regulation extending the provisions of Regulation (EEC) No. 1408/71 to nationals of third countries who are not already covered by these provisions solely on the ground of their nationality.

Legal base:

Article 63(4) EC; consultation; unanimity


Deposited in Parliament:

22 February 2002


Work and Pensions

Basis of consideration:

Minister's letter of 22 April 2002

Previous Committee Report:

HC 152-xxiii (2001-02), paragraph 9 ( 10 April 2002)

To be discussed in Council:

June 2002

Committee's assessment:

Politically important

Committee's decision:





  23.1  Regulation (EEC) No.1408/71 co-ordinates the operation of Member States' social security schemes so as to provide protection of rights to social security (including health care) when persons covered by the Regulation move from one Member State to another. It is a detailed piece of legislation which has been the subject of regular interpretation by the European Court of Justice (ECJ). It currently applies to Community nationals, refugees, stateless persons and third-country nationals who are family members of Community nationals.

  23.2  The Commission first proposed an extension of the Regulation to cover third-country nationals in November 1997[35]. It originally cited Article 42 EC — a legal base to which the UK was strongly opposed. The previous Committee questioned the Government on a number of occasions about its opposition to the legal base.

  23.3  As the legal base of the current proposal falls within Title IV of the EC Treaty (Visas, asylum, immigration and other policies related to the free movement of persons), 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).

  23.4  When we considered the document earlier this month, we decided not to clear it until we knew more about the Government's view of the measure, and whether or not it intended to opt in. We also asked the Minister to confirm that the present proposal carried no threat to the UK's border controls.

The Minister's letter

  23.5  The Parliamentary Under-Secretary of State at the Department of Work and Pensions (Mr Malcolm Wicks) has responded promptly to tell us that the Government has agreed to opt in to the proposal, and is notifying the President of the Council of its decision.

  23.6  He explains:

"The Government has said to Parliament and to our European partners that our general policy is to participate positively in Title IV measures, subject to any conflict with our frontier controls or admission policy. It is the view of the Government that this measure does not infringe on [either]. The proposal will not affect our rights to exercise at our frontiers such controls on third country nationals seeking to enter the United Kingdom, as we consider necessary for the purposes of determining whether or not to allow them to enter the United Kingdom. The proposal itself states at page 7, 'Whereas' No 10:

'The application of Regulation 1408/71 to these persons must not give them any entitlement to enter, to stay or to reside in a Member State or to have access to its labour market'.

"We consider that this proposal carries no threat to the UK's border controls and this is one of the arguments in favour of participating in this measure. Any third country national who wishes to enter the UK will have to meet exactly the same immigration requirements as at present. Any access they may have to the provisions of Regulation 1408/71 will be a factor when they are legally resident in the UK and not before."

  23.7  The Minister then details the reasons for opting in, as follows:

"—  The measure does not confer rights of entry to the UK to third country nationals, as I explain above;

"—  The cost is not excessive, estimated to be around 13.5 million annually. (Costs for [Department of Work and Pensions] around 11 million, Inland Revenue (tax credits) 2 million and Department of Health 0.5 million.) This cost may fall if the agreed extension contains exclusions for certain provisions. Although the cost is not high in terms of the expenditure of the Government, we still had to seriously consider whether this expenditure was justified.

"—  The third country nationals that will be affected are most likely to be working here, having worked in another Member State previously. The aim of Regulation 1408/71 is to improve the mobility of the labour market in Europe and ensure that those who are mobile are not disadvantaged. We see no reason to reject any proposal that may encourage the mobility of this group of third country nationals."

  23.8  Finally, the Minister tells us:

"Turning to the provisions of the proposed extension of Regulation 1408/71, it will give those third country nationals not already covered by the regulation access to the provisions of coordination. [These] will be people who have moved between Member States and who fall within the scope of the Regulation as a whole.

"We propose to support the contents of the Commission's proposal as it stands.

"Discussions on content have already commenced in the Council Working Group and we intend to participate fully in those discussions.

"I hope that this explanation of the Government's position will be helpful to you in your deliberations. The proposal is expected to be put before the Employment and Social Policy Council on 3rd June. It would therefore be very helpful if the Committee could give its view in advance of that date."


  23.9  We thank the Minister for his prompt and helpful response. We are pleased to learn that the Government has decided to opt in to this measure, which protects legally resident third-country nationals moving between Member States, and that it is prepared to support the Commission's proposal as it stands.

  23.10  We understand that the Government's decision has been made on the basis that the application of Regulation 1408/71 does not give third country nationals any entitlement to enter the UK, and that those covered will be third country nationals who have moved between Member States and who fall within the scope of the Regulation as a whole.

  23.11  On that understanding, we are prepared to clear the document. We expect, however, to be informed if the Government's position changes before the June meeting of the Employment and Social Policy Council, or if the scope of the proposal is significantly changed during negotiations.


35  (18743) 13485/97; see HC 34-xi (1998-99), paragraph 2 (24 February 1999). Back

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