Documents considered by the Committee on 27 March 2019 Contents

9Stronger EU rules on the return of illegal migrants

Committee’s assessment

Politically important

Committee’s decision

Cleared from scrutiny; further information requested; drawn to the attention of the Home Affairs Committee

Document details

Proposal for a Directive on common standards and procedures in Member States for returning illegally staying third country nationals (recast)

Legal base

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


Home Office

Document Number

(40059), 12099/18 + ADD 1, COM(18) 634

Summary and Committee’s conclusions

9.1The European Commission’s proposal for a Directive responds to a request made by EU leaders in June 2018 to “significantly step up the effective return of irregular migrants”.101 The rate of returns across the EU—that is, the proportion of return decisions leading to the effective removal of illegally staying third country nationals—has fallen from 45.8% in 2016 to 36.6% in 2017.102 The proposal would repeal and replace the 2008 EU Return Directive (in force since December 2010) and introduce changes to make it quicker and easier for Member States to detain and remove failed asylum seekers and illegally staying third country nationals and prevent their re-entry into the EU. The main changes are described in our earlier Report agreed on14 November 2018.

9.2The UK does not participate in the 2008 Return Directive but the Government shares the European Commission’s concern that discrepancies in the way it has been interpreted and applied by Member States have hindered effective returns. In her Explanatory Memorandum of 9 October 2018, the Immigration Minister (Rt Hon. Caroline Nokes MP) indicated that the changes proposed would improve consistency and strengthen return processes in Member States lacking an effective return capability. She confirmed that the UK’s Title V opt-in Protocol applied to the proposed Directive, set out the factors which would inform the Government’s opt-in decision, and underlined the importance the Government attached to maintaining the UK’s “sovereignty over returns procedures and management of UK borders”.103 The three-month deadline for deciding whether to opt into the proposed Directive expired on 16 January 2019.

9.3Whilst recognising that the Government was unlikely to opt in, we noted that post-exit (or at the end of any post-exit transition period) UK nationals found to be staying illegally in an EU Member State would be subject to the amended EU return procedures (and therefore more vulnerable to detention) unless the UK negotiated a future relationship agreement with the EU giving UK nationals a special status equivalent to that of an EU citizen. We requested a more detailed assessment of the safeguards and remedies that would be available to UK citizens subject to a return procedure governed by the proposed Directive.

9.4In her letter of 18 March 2019, the Minister apologises for the delay in informing us that the Government has decided not to opt into the proposed Directive. She reiterates the Government’s commitment to securing “an effective reciprocal partnership with the EU on illegal migration matters, including practical cooperation” as part of the UK’s future relationship with the EU. Turning to the adequacy of the safeguards and remedies for UK citizens who may, post-exit, be subject to return procedures under the proposed Directive, the Minister draws our attention to the provisions of the draft EU/UK Withdrawal Agreement which protect the rights of UK nationals in the EU. She continues:

Without a deal, the UK cannot act unilaterally to protect the rights of UK nationals in the EU; it is for this reason that we have always prioritised agreeing the Withdrawal Agreement and why the Government has written to the European Commission to explore the proposal detailed in the Costa Amendment to ring-fence the Citizens’ Rights element of the Withdrawal Agreement in the event of no deal.104 The European Commission has also published a No Deal Contingency Action Plan, which calls upon EU Member States to take a generous approach to UK nationals who are already resident in their territory.105 This includes a call for Member States to take measures so that all UK nationals legally residing there on 29 March 2019 will continue to be considered as legal residents of that Member State without interruption; I can confirm that all Member States have provided HMG with reassurances that this will be the case and are taking legislative and administrative steps to ensure this. We will continue to work with the EU and individually with Member States on the details of their legislation and ensure that UK nationals are given detailed advice and firm reassurances as soon as possible. In addition, formal agreements guaranteeing citizens’ rights have so far been reached with Switzerland, Norway, Iceland and Liechtenstein.

Our Conclusions

9.5The deadline for deciding whether to opt into the proposed Directive expired more than two months ago, on 16 January. We are disappointed that it has taken the Minister so long to inform us of the Government’s decision not to opt in, not least given that she issued a Written Ministerial Statement and wrote to our counterparts in the House of Lords explaining the reasons for the decision on 31 January.106 As the UK will not be bound by the proposed Directive, or be able to vote on its adoption, we are clearing it from scrutiny.

9.6We note, however, that the Minister’s letter only addresses the safeguards and remedies available to UK nationals already living and working in another Member State on or by exit day who would fall within the scope of Part Two of the EU/UK Withdrawal Agreement, if ratified, or if it is not, bilateral assurances given by each Member State. Our question was also intended to encompass UK nationals whose stay in an EU Member State begins after the UK’s exit from the EU (or after the end of a post-exit transition/implementation period), who would not therefore be protected by Part Two of the draft EU/UK Withdrawal Agreement and who do not meet the requirements for lawful entry, stay or residence. We would welcome some assurance from the Minister that the procedural safeguards set out in chapter III of the proposed Directive are adequate, especially given the risk of inadvertent breaches of national immigration rules while UK nationals adjust to the loss of free movement rights after leaving the EU. We draw this chapter to the attention of the Home Affairs Committee.

Full details of the documents

Proposal for a Directive on common standards and procedures in Member States for returning illegally staying third country nationals (recast): (40059), 12099/18 + ADD 1, COM(18) 634.

Previous Committee Reports

Fifty-third Report HC 301–lii (2017–19), chapter 8 (13 January 2019) and Forty-fourth Report HC 301–xliii (2017–19), chapter 12 (14 November 2018).

101 See the Conclusions of the European Council agreed on 28 June 2018.

102 See p.2 of the Commission’s explanatory memorandum accompanying the proposed Directive.

103 See para 12 of the Minister’s Explanatory Memorandum.

104 See the letter of 4 March 2019 from the Secretary of State for Exiting the European Union (Rt Hon. Steve Barclay MP) to the European Chief Negotiator Taskforce on Article 50 (Michel Barnier).

105 See the Commission Communication, Preparing for the withdrawal of the United Kingdom from the European Union on 30 March 2019: Implementing the Commission’s Contingency Action Plan published on 19 December 2018.

106 See Hansard HCWS1290, 31 January 2019.

Published: 2 April