9 Entry and residence of third country
nationals
| (34791)
7869/13
COM(13) 151
+ ADDs 1-2
| Draft Directive of the European Parliament and of the Council on the conditions of entry and residence of third country nationals for the purposes of research, studies, pupil exchanges, remunerated and unremunerated training, voluntary service and au pairing
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| Legal base | Article 79(2) (a) and (b) TFEU; co-decision; QMV
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| Department | Home Office
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| Basis of consideration | Minister's letter of 12 July 2013
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| Previous Committee Report | HC 86-xxxviii (2012-13), chapter 9 (17 April 2013)
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| Discussion in Council | No date set
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| Committee's assessment | Politically important
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| Committee's decision | Not cleared; further information requested
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Background and previous scrutiny
9.1 The draft Directive would repeal and replace two Directives,
adopted in 2004 and 2005, which establish common rules on the
entry and residence of third country (non-EU) nationals to pursue
a full-time course of study at a higher educational establishment
or to carry out post-graduate research at an approved research
organisation within the European Union. Both are intended to
promote Europe as a centre of excellence for academic study and
research but the Commission considers that there are significant
weaknesses in their operation which its new proposal is intended
to address. It says that a more coherent legal framework is needed
to attract talent to the EU, boost the competitiveness of the
European economy through research and innovation, foster the transfer
of skills and promote the development of human capital and cultural
exchanges.
9.2 The draft Directive would extend the scope
of existing EU rules to include third country nationals participating
in training programmes, voluntary or au pair work, and
pupil exchange schemes, as well as students and researchers.
The conditions for admission largely reflect existing rules, but
there are new provisions on au pairs and trainees which
are intended to address their vulnerability to exploitation.
The draft Directive would increase the hours that students are
entitled to work (from a minimum of 10 to at least 20 hours per
week) and introduce a right for students and researchers to remain
in the host Member State after completion of their studies or
research for up to 12 months in order to look for work or set
up a business. There are more favourable provisions on mobility
within the EU in order to pursue studies, training or research
in a second Member State and on the right of family members accompanying
third country researchers to access the labour market. Our Thirty-ninth
Report of Session 2012-13, agreed on 17 April 2013, provides further
background.
9.3 The UK does not participate in the 2004 and
2005 Directives which the new proposal would replace. The draft
Directive is subject to the UK's Title V (justice and home affairs)
opt-in. The Government told us that, in deciding whether or not
to opt in — it had until 4 July to do so — it would
consider the impact of the draft Directive on immigration control,
its financial implications, the extension of jurisdiction to the
Court of Justice, and the balance of UK and EU competence. The
Government suggested that arrangements for the entry and stay
of third country nationals are best determined at national level
so that they can be adjusted to reflect economic needs and to
support the objective of reducing net migration to the UK.
9.4 We noted that, while some elements of the
draft Directive were broadly in line with the UK's Points Based
System, others appeared to go against the grain of recent immigration
reforms. The Explanatory Memorandum submitted by the Minister
for Immigration (Mr Mark Harper) highlighted a number of areas
in which the draft Directive would be at odds with existing Government
policy and few countervailing benefits which would result from
UK participation. He indicated that the Government's consultation
on the content of the draft Directive would help to inform its
opt-in decision. We therefore asked him to inform us of the outcome
of the consultation exercise and the Government's opt-in decision.
The Minister's letter of 12 July 2013
9.5 The Minister (Mr Mark Harper) informs us
that the Government has "decided not to opt in at this stage"
and sets out his reasons.
"The Government recognises that some elements
of the proposal are broadly in line with the UK's Points Based
System; however having analysed the contents of the proposal we
have identified a number of issues that are not compatible with
the reforms we have made and give rise to particular concern.
These include the requirement to provide all non-EU nationals
completing higher education studies and research in the UK with
a 12-month extension for the purpose of seeking work; the potential
to undermine the UK's ability to apply additional sponsorship
requirements and a genuineness test to applicants; and the extension
of social security entitlements.
"The Home Office consulted key corporate partners
on this proposal. Only two responses were received, each from
the education sector. The responses encouraged the Government
to ensure that the UK remains as competitive as possible in this
area, but did not advocate the UK's participation in this proposal.
"Having analysed the proposal and following
the consultation we have concluded that the measure would undermine
the UK's ability to control immigration in the national interest
and we have decided that the best course of action is not to opt
in at this stage.
"The decision is in no way an indication that
we do not take seriously the issue of attracting talent, boosting
competitiveness through research and innovation and ensuring the
protection of those that may be vulnerable to exploitation. The
Government considers it to be of the greatest importance. That
means, however, that we must get the detail right and be fully
cognisant of the operational impact of any legislative changes."
9.6 The Minister adds that the Government intends
to play a full part in negotiations on the draft Directive "and
will seek to shape it in the national interest." He continues:
"We will keep you updated on the progress of
negotiations and once the text of the Directive has been adopted
we will carefully consider the case for a post-adoption opt in.
Any such decision will be subject to Parliamentary scrutiny in
the normal way."
Conclusion
9.7 The Government's decision not to opt into
the draft Directive at this stage means that the UK will be unable
to vote for, or oppose, its adoption. We note, however, the Government's
intention to participate actively in negotiations and the possibility
that it may seek to opt into the draft Directive after it has
been formally adopted by the European Parliament and Council.
Given this possibility, we intend to hold the draft Directive
under scrutiny. We welcome the Minister's offer of progress reports
on the negotiations and ask him, when he provides his first update,
to provide some indication of the Government's negotiating objectives.
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