Documents considered by the Committee on 29 November 2017 Contents

16A uniform residence permit for third country nationals

Committee’s assessment

Legally and politically important

Committee’s decision

Not cleared from scrutiny; further information requested; drawn to the attention of the Home Affairs Committee

Document details

Proposal for a Regulation amending Council Regulation (EC) No 1030/2002 laying down a uniform format for residence permits for third country nationals

Legal base

Article 79(2)(a) TFEU, ordinary legislative procedure, QMV

Department

Home Office

Document Number

(37915), 10904/16 + ADD 1, COM(16) 434

Summary and Committee’s conclusions

16.1A residence permit is a document issued to third country (non-EU) nationals authorising them to stay legally on the territory of a Member State. Since 1997, Member States have issued residence permits in a uniform format, ensuring that they are readily recognisable by immigration authorities across the EU. Their technical specifications and security features have been strengthened in recent years to reduce the risk of forgery and fraud. Changes agreed in 2008 included the incorporation of a contactless chip containing biometric identifiers—a photograph of the holder and two fingerprint images.215 Member States may include additional security features, as well as an optional contact chip enabling the holder to access e-services in the issuing Member State.

16.2The Commission considers that these optional national features have resulted in considerable variation in the quality and appearance of residence permits issued by different Member States. It accepts that full harmonisation would entail “very high costs” for some Member States. It has therefore proposed a further amending Regulation which would strengthen the security features and technical specifications of the residence permit and harmonise its appearance whilst also making it harder to counterfeit or falsify. Member States would still be able to incorporate additional security features, provided these do not detract from the harmonised appearance of the residence permit or in any way diminish the efficiency of the uniform security features.

16.3The UK participates in the existing EU Regulation establishing a uniform format for residence permits (known as the biometric residence permit in the UK). The Government told our predecessors that it considered the current design to be “very secure” and that evidence of abuse of the UK’s biometric residence permit was “quite sporadic and largely anecdotal”. The Government had nevertheless played an active part in discussions to improve the security features.216

16.4The proposed Regulation is subject to the UK’s Title V (justice and home affairs) opt-in. The then Immigration Minister (Mr Robert Goodwill) informed our predecessors in October 2016 that if the Government were to decide not to opt in to the proposed amending Regulation, the UK would remain bound by the existing EU rules establishing a uniform format for residence permits until the UK’s withdrawal from the EU took effect, but added:

“[…] depending upon our future relationship with the EU we may be able to participate in the Regulation at a later occasion. My officials are examining the UK’s position in context of our wider post-Brexit objectives and I will provide a further update in due course.”217

16.5He wrote again in December to confirm that the Government had decided not to opt into the proposal:

“Whilst the Government welcomes measures that will strengthen immigration and border control, we have taken account of the cost of developing a document that the UK may never use. The UK will continue issuing the current format of the residence permit until we leave the EU and are considering the options following exit.”218

16.6Our predecessors asked the Minister when he expected the proposed Regulation to be adopted and whether a post-adoption opt-in remained a possibility. They also drew attention to serious shortfalls in the Home Office’s handling of the opt-in decision—in particular, a delay of more than two months in informing Parliament of the Government’s decision not to opt in—and sought an assurance that the Home Office was adequately resourced to manage both its Brexit business and its scrutiny business and that Ministers intended to abide by commitments made by the Coalition Government in January 2011 to strengthen significantly Parliament’s oversight of EU justice and home affairs matters.219

16.7In his response of 13 July, the Immigration Minister (Brandon Lewis) apologises for the delay in notifying the previous Committee of the Government’s opt-in decision “during what was a particularly busy period for the Home Office”. He accepts that the scrutiny performance of his Department has “not been up to the standard I would expect” but expresses a commitment to “responding to the Committee in a timely manner and ensuring that the Department is able to deliver its work to enable the UK to have a successful exit from the EU”. Turning to the possibility of future UK participation in the Regulation, he observes:

“Although it is unlikely that the EU will seek to opt into the Regulation post-adoption, we cannot confirm at this stage whether or not we may opt in later on until the negotiations on the UK’s exit from the EU have been conducted.”

16.8We welcome the Minister’s commitment to managing scrutiny of EU documents more effectively and look forward to receiving timely and comprehensive responses to the questions we raise.

16.9The Minister links the question of a possible post-adoption opt-in to the Regulation with the conduct of the UK’s exit negotiations. This suggests that the Government can envisage circumstances in which the UK would leave the EU but still wish to apply EU legislation determining the format of residence permits issued to third country nationals, including (post-exit) EU citizens wishing to reside in the UK. We ask the Minister to set out the particular circumstances or factors which might be relevant in deciding whether or not the UK should seek to opt into the Regulation after its formal adoption and before the UK leaves the EU.

16.10Pending further information, the proposed Regulation remains under scrutiny. We draw this chapter to the attention of the Home Affairs Committee.

Full details of the documents

Proposal for a Regulation amending Council Regulation (EC) No. 1030/2002 laying down a uniform format for residence permits for third country nationals: (37915), 10904/16 + ADD 1, COM(16) 434.

Background

16.11Further details on the content of the proposed Regulation, the Government’s position and the questions raised by our predecessors are contained in the Reports listed at the end of this chapter.

The Minister’s letter of 13 July 2017

16.12The Minister apologises for the delay in responding to the questions raised by our predecessors in January. He continues:

“I apologise for not having notified the European Scrutiny Committee earlier on the Government’s decision not to opt into the Regulation during what was a particularly busy period for the Home Office. I understand your concerns in relation to the Department’s scrutiny performance, which has not been up to the standard I would expect. Moving forward, I want to assure you that we are committed to responding to the Committee in a timely manner and ensuring that the Department is able to deliver its work to enable the UK to have a successful exit from the EU.”

16.13The Minister says that the Commission expected the proposed Regulation to be formally adopted “during the 2017 summer break”, but that this was an indication only since the Commission “cannot decide the date for adoption on its own”. He adds:

“Although it is unlikely that the UK will seek to opt into the Regulation post-adoption, we cannot confirm at this stage whether or not we may opt in later on until the negotiations on the UK’s exit from the EU have been conducted.”

Previous Committee Reports

Twenty-fifth Report HC 71–xxxiii (2016–17), chapter 9 (11 January 2017) and Tenth Report HC 71–viii (2016–17), chapter 6 (7 September 2016).


216 See the Explanatory Memorandum of 16 August 2016 submitted by the then Immigration Minister (Mr Robert Goodwill) and his letter of 12 October 2016 to the Chair of the European Scrutiny Committee.

217 See the Minister’s letter of 12 October 2016 to the Chair of the European Scrutiny Committee.

218 See the letter of 16 December 2016 from the then Immigration Minister (Mr Robert Goodwill) to the Chair of the European Scrutiny Committee and his Written Ministerial Statement of the same date, HCWS 372.

219 See the Written Ministerial Statement of 20 January 2011 made by the former Minister for Europe (Mr David Lidington).




1 December 2017