Select Committee on European Scrutiny Thirty-Seventh Report





COM(02) 225

Amended draft Council Directive on the right to family reunification.

Legal base:

Article 63(3)(a) EC; consultation; unanimity


Document originated:

2 May 2002

Deposited in Parliament:

15 May 2002


Home Office

Basis of consideration:

EM of 27 May 2002

Previous Committee Report:

None; but see (22741)12022/01: HC 152-vi (2001-02), paragraph 14 (14 November 2001)

To be discussed in Council:

Date not set

Committee's assessment:

Politically important

Committee's decision:

Not cleared; further information requested.



    1. A draft Directive on family reunification has been under discussion for two and a half years. (The previous Committee first considered a version of it in January 2000[17].) It has proved extremely difficult to negotiate.
    2. As the legal base falls within Title IV of the EC Treaty (Visas, asylum, immigration and other policies related to the free movement of persons), the UK had 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). In July 2000, the then Minister of State at the Home Office (Mrs Barbara Roche) wrote to inform the previous Committee that the Government had decided not to opt in to the proposal, because of concerns that to do so would remove the UK's ability to formulate and adjust policies in relation to family reunification as a matter of domestic law. She assured the Committee, however, that the UK did not intend to be seriously out of line with other Member States in this important area of immigration policy, and would continue to participate in discussions on the text.
    3. In June, the Seville Council urged the Council to adopt the provisions on family reunification by June 2003.
    4. The document

    5. In response to a request from the Council and in an attempt to break the deadlock, the Commission has produced an amended proposal. It incorporates the compromises reached in the Council and proposes a new approach to the points presenting the most difficulties. The draft Directive increases flexibility on the intractable issues, whilst preventing Member States from making use of the new derogations if their legislation does not already provide for them at the time of the Directive's adoption. It also sets a deadline (two years after the transposal of the measure into national legislation) for the review of the most flexible provisions in order to make progress towards harmonisation.
    6. The main changes to the proposal are:

    • the exclusion of EU citizens who have not exercised their free movement rights. (Their rights will be reviewed in the context of a new community law on free movement of persons.)

    • the exclusion of third country nationals in categories unlikely to lead to permanent residence (au pairs and students, for example)

    • the possibility of setting a lower age limit for children as part of the flexibility for existing differences in national legislation. (This limit does not apply to refugees.)

    1. Other amendments include a new provision allowing for the delay of entry by family members for a period of up to three years (to provide a specific exception for certain pieces of national legislation) conditions for withdrawing or refusing to renew a permit on grounds of public policy and domestic security, with the exception of refugees; and the restriction of family reunification of refugees to those whose family relationships existed prior to recognition of refugee status.
    2. The Government's view

    3. The then Parliamentary Under-Secretary of State (Angela Eagle) told us:
    4. "The policy implications as set out in the Government's explanatory memoranda on the previous versions of the text are maintained. An exception, however, is that the amended proposal limits the scope of the Directive by excluding Union citizens not exercising their right to free movement and third country nationals residing on a temporary basis.

      "In addition, with effect from the date of adoption, the UK would be unable to introduce less favourable conditions than those which already exist. There are no policy implications arising from the other proposed changes to the text."

    5. The Minister reminded us that the UK has previously chosen not to opt in to the measure. Were it to participate, there could be some impact on UK immigration legislation, although it is unlikely that primary legislation, or amendment of existing primary legislation, would be needed unless there were further changes to the draft measure.
    6. Finally, the Minister told us:
    7. "Significant amendments have been made to the text since the UK made its decision not to opt into this proposal. The UK now has another period of three months from formal publication of the proposal in which to decide whether to opt into this draft Directive. We will inform scrutiny committees of our position."


    8. It is disappointing that so many compromises have had to be made in negotiating this measure. However, we are encouraged that new efforts are being made to reach an agreement which should, at least, be a starting point for harmonisation.
    9. We share with our sister Committee in the House of Lords a concern that those with subsidiary protection status (in the UK, "exceptional leave to remain") are excluded from the provisions in this draft Directive. We can see no justification for making a distinction between them and refugees in this respect. We ask the Government for its view on this matter.
    10. We shall keep the document under scrutiny until we know whether the UK has decided to opt in to the draft Directive. We ask that, when we are informed about the Government's decision, we are also given a full explanation of the grounds on which it was taken.


17  (20806) - ; see HC 23-vi (1999-2000), paragraph 3 (26 January 2000). Back

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