Documents considered by the Committee on 23 May 2018 Contents

7Preventing document fraud and identity theft

Committee’s assessment

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 on strengthening the security of identity cards of EU citizens and of residence documents issued to EU citizens and their family members exercising their right of free movement

Legal base

Article 21(2) TFEU, ordinary legislative procedure, QMV


Home Office

Document Number

(39646), 8175/18 + ADDs 1–2, COM(18) 212

Summary and Committee’s conclusions

7.1According to the European Commission, identity cards and residence documents “have an intrinsic European dimension” because they are instrumental in exercising free movement rights within the EU. They are also “a key element in the fight against terrorism and organised crime”—many of the EU’s security measures, such as enhanced checks at the EU’s external border, depend on secure travel and identity documents.63

7.2Twenty-six EU Member States issue identity cards to their nationals. These can be used instead of a passport to travel within the EU as well as to enter the EU from a third (non-EU) country. Under the EU Free Movement Directive, EU citizens who are not nationals of the Member State in which they live (“mobile EU citizens”) may be required to register with the authorities in their host Member State and will be issued with a registration certificate. They are entitled to obtain a permanent residence document after five years of continuous lawful residence. Family members of mobile EU citizens who are not themselves EU citizens must obtain a residence card to prove that they have a right to live in the host Member State. These residence documents cannot be used as travel documents, but a residence card used with a passport gives a third country family member the right to enter the EU without a visa when accompanying or joining an EU citizen.64

7.3The absence of common EU-wide standards on the format and security features of national identity cards and residence documents issued by Member States in accordance with the EU Free Movement Directive has resulted in significant differences and, the Commission believes, increased the risk of falsification and identity fraud. It has therefore proposed a Regulation which seeks to make them less susceptible to fraud, close security gaps within the EU and create the trust needed to underpin free movement. The proposal would:

7.4Identity cards and residence cards issued to the family members of mobile EU citizens that do not meet the new standards would be phased out over a five-year period (two years for the least secure documents). This should reduce the cost for Member States as, in most cases, the timetable for implementing the new requirements would coincide with the natural replacement cycle of existing identity and residence documents.

7.5The proposed Regulation is based on Article 21(2) of the Treaty on the Functioning of the European Union (TFEU), a default legal base to be used when EU action is necessary to facilitate the free movement of EU citizens within the EU but the EU Treaties have not provided the necessary powers. It would apply to all Member States but the Commission makes clear that the Regulation would not require them to introduce identity cards or residence documents where they are not provided for in national law, nor would it introduce a uniform EU identity card.66 The Regulation would apply in Member States 12 months after the date on which it enters into force.67

7.6In her Explanatory Memorandum, the Immigration Minister (Caroline Nokes) says that the Government supports measures to strengthen the external EU border and make travel documents and identity cards more secure. She agrees with the Commission’s assessment that better document security will yield “direct savings and a reduced administrative burden for citizens and their family members, public administrations and public and private service operators”, as well as contribute to a reduction in document fraud and identity theft and improved security within the EU and at its external borders. She accepts that a common approach “would be better achieved through action at EU level than by Member States acting alone”.

7.7The Minister confirms that the proposed new requirements for national identity cards would not apply to the UK as the UK does not issue identity cards. They would, however, apply to Gibraltar which does operate an identity card system. Gibraltar’s identity cards are not compliant with the proposed standards as they do not contain an ICAO-compliant biometric chip. The Minister says the Government is “exploring what this might entail for Gibraltar”.

7.8Residence documents issued to EU citizens in the UK already conform to the proposed standards. Residence cards issued to the non-EU family members of EU citizens use the current format for a Biometric Residence Permit. The Minister anticipates that negotiations on the proposed Regulation are likely to conclude before the end of the year. Whether the UK will be bound by the proposed changes to residence documents and cards will be:

“[…] dependent on negotiations around the implementation period which is due to end 31 December 2020, with a grace period of a further six months. The soonest the Regulation as drafted could be operational is late 2019, with non-compliant documents phased out by late 2024.”

7.9The Minister notes that the requirement for identity cards to include biometric information will assist with the implementation of the Withdrawal Agreement which will set out the terms on which the UK will leave the EU. The draft agreed by EU and UK negotiators in March stipulates that, five years after the end of the transition/implementation period, the UK and other Member States may decide only to accept the use of a national identity card as a travel document if it includes an ICAO-compliant chip containing biometric identifiers.68 The Minister explains: “If the Regulation as drafted becomes operational as expected, all EU identity cards will meet this requirement by 2025”.

7.10We agree with the Minister that efforts to strengthen the security of documents linked to the free movement of EU citizens and their families should be supported, but would welcome further information on the impact on the UK and on Gibraltar during and after the transition/implementation period.

Impact on the UK

7.11Most Member States issue identity cards to their nationals. The UK has a clear interest in ensuring that national identity cards are as secure as possible, even after Brexit. This is because EU citizens whose rights are protected under the Withdrawal Agreement will retain the right to use their national identity cards to enter and leave the UK long after the UK has ceased to be a member of the EU. We ask the Minister whether the changes proposed to national identity cards would make them as secure as passports. We also ask the Minister to explain how border control authorities will be able to differentiate between EU citizens who are entitled, under the Withdrawal Agreement, to use their national identity cards to travel to and from the UK and those who are not and will need to travel with a passport.

7.12We ask the Minister to clarify whether the proposed Regulation would necessitate changes to the UK’s Biometric Residence Permit when issued to third country family members of EU citizens.

Impact on Gibraltar

7.13We note that identity cards issued by the Government of Gibraltar can be used to travel within the European Economic Area. We would welcome further information on the Government of Gibraltar’s position on the proposed Regulation, including its assessment of the impact that issuing non-compliant identity cards after 2025 would have on movement across the Spain/Gibraltar border.

The transition/implementation period

7.14The Minister expects the proposed Regulation to become operational (meaning that it would have to be applied by Member States) during the transition/implementation period and says this period is “due to end [on] 31 December, with a grace period of a further six months”. We understand the “grace period” to mean the six-month period after the end of the transition/implementation during which EU citizens in the UK whose EU citizenship rights are protected by the Withdrawal Agreement can apply for settled status.69 We ask the Minister whether she means that the proposed Regulation would also apply during this “grace period”, unlike other EU laws which would cease to apply at the end of the transition/implementation period.

7.15Pending 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 on strengthening the security of identity cards of EU citizens and of residence documents issued to EU citizens and their family members exercising their right of free movement: (39646), 8175/18 + ADDs 1–2, COM(18) 212.

Previous Committee Reports

None on this document.

63 See pp 1 and 5 of the Commission’s explanatory memorandum accompanying the proposed Regulation.

64 See Directive 2004/38/EC on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States.

65 Children under the age of 12 would not be required to give fingerprints.

66 See recital (6) of the proposed Regulation.

67 The Regulation will enter into force 20 days after its publication in the EU Official Journal.

68 See Article 13(1) of the draft Withdrawal Agreement.

69 See Article 17(1)(b) of the draft Withdrawal Agreement.

Published: 29 May 2015