2 Procedure for the adoption of measures
relating to visas, asylum and immigration
| (26128)
14497/04
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| Draft Decision providing for certain areas covered by Title IV of Part Three of the Treaty establishing the European Community to be governed by the procedure referred to in Article 251 of that Treaty
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| Legal base | Article 67(2) EC; consultation; unanimity
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| Deposited in Parliament | 16 November 2004
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| Department | Home Office |
| Basis of consideration | EM of 15 November 2004
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| Previous Committee Report | None
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| To be discussed in Council | December 2004
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| Committee's assessment | Politically important
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| Committee's decision | For debate in European Standing Committee B
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Background
2.1 Title IV (Articles 61 to 69) of the Treaty establishing the
European Community (the EC Treaty) makes provision for the adoption
of measures concerning: the free movement of people within the
Community; visas; asylum; immigration; judicial cooperation in
civil matters having cross-border implications; and police and
judicial cooperation in criminal matters.
2.2 The procedure for adopting such measures is specified
in Article 67 of the Treaty. It provides that, subject to specific
exceptions, "during a transitional period of five years following
the entry into force of the Treaty of Amsterdam" (that is,
until May 2004), measures under Title IV of the Treaty were to
be adopted by unanimity after consultation with the European Parliament.
The following were the exceptions to this procedure:
- measures relating to visas;
- measures relating to civil matters other than
family law; and
- measures relating to asylum where the Council
had already adopted legislation defining common rules and basic
principles.
For these exceptional measures, the voting procedure
since 1999 has been qualified majority voting (QMV).
2.3 Article 67(2) provides that, after May 2004,
the Council, acting unanimously after consulting the European
Parliament, must take a decision with a view to providing that
measures, proposed under some or all of the Articles of Title
IV, are to be adopted by QMV and co-decision with the European
Parliament. The Treaty does not stipulate the date by which such
a decision must be taken. Until the decision is taken, the procedure
specified for the transitional period remains in force.
2.4 A Protocol to the EC Treaty provides that the
United Kingdom is not bound by any measure under Title IV of the
Treaty unless it opts into the measure before or after its adoption.
2.5 The Constitutional Treaty provides for co-decision
and QMV for legislation on:
- border checks, asylum and immigration;
- judicial cooperation in civil matters (other
than family law, for which unanimity would be required);
- judicial cooperation in criminal matters (except
that unanimity would be required for the creation of a European
Prosecutor's Office, and a Member State would be able to refer
to the European Council a framework law which, in its view, would
affect fundamental aspects of its criminal justice system); and
- police cooperation (except that unanimity would
be required for framework laws).
2.6 Protocol 19 to the Constitutional Treaty provides
that the United Kingdom would not be bound by legislation on border
checks, asylum, immigration, judicial cooperation in civil matters
or police cooperation unless the United Kingdom opted into it.
The document
2.7 At its meeting on 4/5 November 2004, the European
Council asked the Council, not later than 1 April 2005, to adopt
a decision based on Article 67(2) of the EC Treaty that co-decision
with the European Parliament and QMV should be the procedure for
the adoption of measures on crossing the Community's external
and internal borders, on Member States sharing the burden of receiving
refugees and displaced persons, and on illegal immigration and
residence. But the European Council took the view that, pending
the entry into force of the Constitutional Treaty, the Council
should continue to act by unanimity in the adoption of measures
on legal migration of third country nationals to and between Member
States.
2.8 The draft Decision gives effect to the European
Council's request from 1 April 2005 or from the first day of the
month following the adoption of the Decision, whichever is the
sooner.
The Government's view
2.9 The Parliamentary Under-Secretary of State at
the Home Office (Caroline Flint) tells us that the Government
intends to opt into the Decision. The Government will continue
to opt into Title IV measures which are in the interests of the
United Kingdom. It is "keen to see such measures adopted
without the delays experienced under unanimous voting in a Council
of 25 Member States. The decision also does not affect the UK's
frontiers protocol, which allows us to maintain our own border
controls".
2.10 The Minister adds that the Dutch Presidency
would like to adopt this Decision by the end of the Presidency.
The last opportunity would be as an A point (i.e. without debate)
at the Fisheries Council on 22/23 December.
Conclusion
2.11 As we understand the position, qualified
majority voting is already the procedure for measures on the
following matters:
- visas;
- asylum (except measures on minimum standards
for procedures for granting and withdrawing refugee status); and
- civil law matters except family law.
The proposed Decision would add the following
matters to the measures for which QMV and co-decision is the procedure:
- illegal immigration and
illegal residence and the return of illegal migrants and residents;
- burden sharing;
- checks on the crossing of the Community's
external border and internal borders (but the United Kingdom would
retain control over its own borders); and
- common standards and basic principles for
granting or withdrawing refugee status when the current draft
Directive on the subject has been adopted.
Unanimity would remain the procedure for measures
on legal migration, on police and judicial cooperation in criminal
matters and on family law. And the United Kingdom would not be
bound by any new measure under Title IV unless the Government
had expressly opted into it.
2.12 On the one hand, the EC Treaty clearly stated
that the requirement for unanimity for Title IV measures was for
a five-year transitional period, after which the Council is required
to decide whether the procedure should become QMV for measures
to be adopted under some or all of the Articles of that Title.
Some Title IV matters which affect national sovereignty —
such as visas and most aspects of asylum — are already subject
to QMV. And QMV might facilitate the adoption of measures which
are in the United Kingdom's interest.
2.13 On the other hand, the matters where unanimity
would cease to be required — such as illegal immigration
and illegal residence and returns — affect national sovereignty,
and adoption by QMV would provide less of a safeguard for Member
States which objected to a measure and which (unlike the United
Kingdom) had no right to decide whether to be bound by it.
2.14 In view of the political importance of the
draft Decision, we recommend the document for early debate in
European Standing Committee B, bearing in mind the wish of the
Dutch Presidency to put the proposal to the Council in December
for adoption.
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