Select Committee on European Scrutiny Thirty-Eighth 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



Home Office

Basis of consideration:

Minister's letter of 19 August 2002

Previous Committee Report:

HC 152-xv (2001-02), paragraph 1 (30 January 2002)

To be discussed in Council:

14/15 October 2002

Committee's assessment:

Legally and politically important

Committee's decision:

Already cleared, following debate in European Standing Committee B on 1 July 2002




    1. When we last considered this proposal (in January), we considered that the Government's decision not to opt in to it raised important issues about non-participation. We therefore recommended the document for debate in Standing Committee B. The debate took place on 1 July 2002.
    2. The Parliamentary Under-Secretary of State for Race Equality, Community Policy and European and International Policy (Lord Filkin) has now written to us with detailed answers to the questions we asked in our Report.
    3. The Minister's letter

    4. We asked the Minister how the Government came to a decision about participation, and whether bodies other than the Home Office were involved. In response, he says:

"The Government's policy, as announced to Parliament in March 1999, is to look positively at participation, provided the measure in question is consistent with our policy of retaining frontier controls and discretion as to the persons to be admitted to our territory. A decision on each proposed measure is made on its merits in light of this policy.

"The process of consultation and consideration of a draft proposal is set out below:

    • detailed consideration of the text and its potential impact on UK immigration policy;

    • submission of an Explanatory Memorandum;

    • consultation with other Government departments and non-governmental organisations where deemed appropriate;

    • consultation by the Home Secretary/Immigration Minister with Ministerial colleagues;

    • Minister writes to Scrutiny Committees;

    • officials notify the UK's permanent representative (UKREP) in Brussels;

    • UKREP notifies Council contacts;

    • Nigel Sheinwald (UKREP) writes to the Chair of the current EU Presidency."

    1. We also asked whether the UK always continued to be involved in negotiations after a decision not to participate, and how much weight was given by Member States to the views of non-participants. The Minister tells us:
    2. "In those proposals where the UK has not opted in, we have continued to participate fully in discussion of the text. This is because deciding not to opt in at this stage would not prevent us from doing so later, if the Directive that is finally agreed is acceptable and we do not wish to be out of step with measures in other Member States.

      "Non-participants have limited input to negotiations on these measures. They are unable to enter reservations on the text and their views have been sought on few occasions. Other Member States have, however, been willing to accept suggestions for amendments to the text from non-participants where agreement has been reached."

    3. More fundamentally, we queried how possible it was for the EU to have a coherent policy in relation to third-country nationals when Member States opt out of significant measures. The Minister says:
    4. "The Government endorses the principle of fair treatment for third country nationals and supports measures to ensure that the rights of long-term, legally resident third country nationals are broadly comparable to those of Member States' own nationals within their country of residence. This approach would provide the foundation for a coherent EU policy in this area.

      "The Tampere Conclusions[49] referred to 'rights within the Member State of residence'. This directive goes beyond that by conferring rights across all Member States. This is one source of the Government's difficulty with the proposals.

      "The Government wishes to maintain discretion over the admission of third country nationals and the circumstances of their stay. This means that there would need to be substantial amendments to the proposal before we could consider opting in. In particular, the directive would need to be far less prescriptive and move a long way in the direction of providing a flexible common framework."

    5. Finally, we wondered how other Member States viewed the UK's non-participation. We found it hard, for example, to believe that other Member States would 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"[50].
    6. The Minister says that the views of other Member States on the UK's non-participation are not known. He continues:
    7. "Whilst we are not in a position to influence the way in which our EU partners operate the Common Visa List, we can assure you that our EU partners are working together to co-ordinate and speed the issuing of visas.

      "Although the UK does not take part in any elements of the Schengen acquis relating to visa requirements, the UK still exerts pressure and influence in these areas. IND[51] officials represent UK interests at a wide range of EU fora setting policy on visa and other frontier control issues. The UK is able to share its considerable experience in certain areas and so influence developments."


    8. We thank the Minister for answering our questions. We have quoted his response fully because it provides useful information about the way in which decisions about non-participation are reached, and about their consequences.
    9. The response is still not as explicit as we might wish. It would, for example, be helpful to have had specific examples of proposals on which consultation with other Government departments and non-governmental organisations has been "deemed appropriate". We ask the Minister to supply this information in relation to future documents. We are also surprised that the Government is not aware of other Member States' views on UK non-participation. Nevertheless, we are pleased to have been told more about the process.
    10. The document has already been cleared.


49  Conclusions of the Tampere European Council, paragraph12. Back

50  HC 152-xv (2001-02), paragraph 1 ( 30 January 2002). Back

51  Immigration and Nationality Directorate, Home Office. Back

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