Documents considered by the Committee on 24 November - European Scrutiny Committee Contents

19 Seasonal Workers and Intra-corporate Transfers




COM(10) 379

+ ADDs 1-2




COM(10) 378

+ ADDs 1-2

Draft Directive on the conditions of entry and residence of third country nationals for the purpose of seasonal employment

Commission staff working documents: impact assessment and summary of impact assessment

Draft Directive on the conditions of entry and residence of third country nationals in the framework of an intra-corporate transfer

Commission staff working documents: impact assessment and summary of impact assessment

Legal base(Both) Article 79(2)(a) and (b) TFEU; co-decision; QMV
Document originated(Both) 13 July 2010
Deposited in Parliament(a) 13 July 2010; (b) 16 July 2010
DepartmentHome Office
Basis of considerationMinister's letter of 10 November 2010
Previous Committee ReportHC 428-ii (2010-11), chapters 10 and 11 (15 September 2010); HC 428-iii (2010-11), chapter 10 (13 October 2010)
To be discussed in CouncilNo date set
Committee's assessmentLegally and politically important
Committee's decisionCleared


19.1 In July, the Commission proposed two Directives. The first — document (a) — would establish common EU rules for the entry and temporary residence of third country nationals for the purpose of seasonal employment in a single Member State. The second -—document (b) — would establish a common EU framework for the admission of skilled third country nationals employed by a company based outside the EU and seeking a temporary transfer to a branch or subsidiary in one or more Member States. Both proposals would entitle third country nationals, if admitted, to certain rights concerning working conditions and equal treatment with nationals of the host Member State in a number of areas including, for example, freedom of association, access to certain social security benefits and to goods and services (but excluding public housing and employment advice services).

19.2 Both draft Directives were envisaged in the Commission's 2005 Policy Plan on Legal Migration. Last December, the European Council agreed a five-year programme on freedom, security and justice in the EU (the Stockholm Programme) for the period 2010-14 which urged the Commission and Council to continue to implement the Policy Plan.

19.3 The draft Directives share the same legal base — Article 79(2) (a) and (b) of the Treaty on the Functioning of the European Union (TFEU). This Article provides for the adoption of EU measures on the conditions of entry and residence of third country nationals and the definition of the rights of those legally resident in a Member State. Measures based on Article 79(2) must be for the purposes of developing a common EU immigration policy, further defined in Article 79(1) TFEU as ensuring "the efficient management of migration flows, fair treatment of third country nationals residing legally in Member States, and the prevention of, and enhanced measures to combat, illegal immigration and trafficking in human beings".

19.4 EU measures in the field of immigration must also respect the principle of subsidiarity under which "the Union shall act only if and insofar as the objectives of the proposed action cannot be sufficiently achieved by the Member States, either at central level or at regional or local level, but can rather, by reason of the scale or effects of the proposed action, be better achieved at Union level".[89]

19.5 Since the entry into force of the Amsterdam Treaty in May 1999, EU measures on immigration matters do not apply to the UK unless the Government expressly opts in.

Previous scrutiny

19.6 We considered both draft Directives at our meetings on 15 September and 13 October 2010 and decided to keep them under scrutiny while seeking further information from the Government. On document (a), while we accepted that the legal base for the draft Directive on seasonal workers was appropriate, we set out in detail our reasons for doubting whether the action proposed was consistent with the principle of subsidiarity and decided to transmit our views to the Presidents of the European Parliament, Council and Commission.[90] On document (b), we questioned the legal base proposed for the draft Directive on intra-corporate transfers as we thought that its principal objective — to make the EU more commercially attractive to multinational companies based outside the EU — did not fall within the scope of the EU's common immigration policy. We also noted the Government's concern that the inclusion of a provision on mobility between EU Member States once an intra-corporate transferee permit has been issued in one Member State might undermine the Government's freedom to determine who to admit to the UK, but thought that the removal of this provision might diminish the justification for the proposal on grounds of subsidiarity.

The Minister's letter of 10 November

19.7 The Minister for Immigration (Damian Green) informs us that the Government has decided not to opt into either of the proposed Directives because of the Government's concern that participation in the measures might "impact on the United Kingdom's ability to determine who is admitted onto its territory and reduce its flexibility to adjust the criteria for the admission of third country workers in the light of the United Kingdom's needs."

19.8 The Minister says that the Government intends to establish a suitable intra-corporate transfer regime for the UK, working closely with European partners, which will ensure that the UK remains "among the best places in the world for companies to invest and do business. Our arrangements will address concerns regarding the overall level of migration to the UK while maximising the economic benefits that flow from international trade and investment."

19.9 On seasonal workers, the Minister notes our concerns about the draft Directive's compliance with the principle of subsidiarity. He accepts that some of the grounds advanced by the Commission to justify EU action are weak but considers others to be "more arguable". He adds that "it is quite right that Parliament should raise its concerns with the EU institutions." He indicates that the Government has no present intention to opt into the Directive after its adoption but adds that it would take account of our concerns regarding the subisidarity implications if it were to change its position in the future.


19.10 The Government's decision not to opt into either of the proposed Directives comes as no surprise, as the UK has so far chosen not to opt into other EU legislation on the legal migration of third country nationals. We expressed disappointment in our last Report on this subject that the Government had felt unable to inform us sooner of its decision whether or not to opt in, especially as the deadline for reaching a decision was imminent. We think our scrutiny of proposals which have a legal base in Title V of Part Three of the Treaty on the Functioning of the European Union and which are subject to the UK's Opt-In Protocol would be more effective if, wherever possible, the Government was to give us a preliminary indication in its Explanatory Memoranda of whether or not it is likely to opt in. However, in light of the Government's decision not to opt into document (a) and (b) we are content to clear both proposals from scrutiny.

89   Article 5 of the Treaty on the European Union. Back

90   See paragraphs 15-17 of our Conclusion, HC 428-iii (2010-11), chapter 10 (13 October 2010). Back

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