19 Seasonal Workers and Intra-corporate
Transfers
| (a)
(31801)
12208/10
COM(10) 379
+ ADDs 1-2
(b)
(31802)
12211/10
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
|
| Department | Home Office
|
| Basis of consideration | Minister's letter of 10 November 2010
|
| Previous Committee Report | HC 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 Council | No date set
|
| Committee's assessment | Legally and politically important
|
| Committee's decision | Cleared
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Background
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.
Conclusion
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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