38. RIGHT TO FAMILY REUNIFICATION
(COM (99) 638)
Letter from Lord Tordoff, Chairman of
the Committee to Barbara Roche MP, Minister of State, Home Office
Sub-Committee F of the European Union Committee
considered the above proposal on 26 January. The members of the
Committee are concerned about various aspects of the Government's
response.
We note that Article 63(3) of the EC Treaty,
under which this proposal has been brought forward, has to be
read in the context of the purpose of Title IV, described in Article
61 as "to establish progressively an area of freedom, security
and justice". The UK enjoys the right to opt out of any measures
based on Title IV but may, if it so wishes, exercise a right to
opt-in. However, we also note that the UK was party to the Conclusions
of the Special European Council at Tampere last October, which
acknowledge (para 20) "the need for approximation of national
legislations on the conditions for admission and residence of
third country nationals" and call (para 21) for the legal
status for third country nationals "to be approximated to
that of Member States' nationals." In the light of these
commitments, we would welcome the Government's comments on the
following points:
The Explanatory Memorandum identifies no
fewer than nine significant differences from the UK's existing
policy which the Government intend to "draw to the attention
of the Commission and other Member States". It is the Government's
intention to resist change by relying on its opt-out to mitigate
the extent of any changes by negotiating a more acceptable text?
The Commission offers a reasoned defence
for the compatibility of the proposals with subsidiarity—in
essence, they argue that an area of "freedom, security and
justice" is inconceivable without establishing common rules
on immigration policy applicable in all the Member States and
that this imperative necessitates Community action. The Committee
would welcome a fuller explanation of the Government's grounds
for disagreeing with the Commission.
The Government argue that to extend the
right of family reunification to Union citizens who have not exercised
their right to free movement "in an economic capacity"
would "significantly weaken the UK's marriage rules and the
efforts which are being made to tighten them up against marriage
abuse for immigration purposes". While acknowledging the
Government's legitimate concerns, the Committee takes the view
that the difference in the rights enjoyed by EU citizens who have
exercised their right to free movement and those who have not
has become anomalous. Does the Government wish to preserve this
anomaly?
Article 7 provides that the application
for reunification should come from the third country national
resident in a Member State, whereas under current UK rules the
applicant must not be the resident but the "person seeking
entry or leave to remain". Our view is that the Directive
(Article 1) confers a new right on legally resident third country
nationals, and that therefore only the "right-holder"
is able to exercise the right conferred. Even under the present
proposal, third country nationals outside the EU would have no
autonomous right of entry under EU laws.
Article 9 suggests a common minimum standard
should be set for proving that an applicant is in a position to
maintain his family, whereas the Government's approach hitherto
has been to decide each case individually on its merits. Article
9 is in effect an anti-discrimination clause—it does not
itself fix the minimum standards, and in fact the commentary on
Article 9 (p.16) specifies that "evaluation of the accommodation
is left to the discretion of the Member State". Do you accept
that there is the potential for discrimination in the Government's
present approach?
On Article 11, the EM notes that the cost
of considering applications overseas is partly funded by the fees
charged and that their elimination "might result in a poorer
service". This objection seems not to take account of other
changes in that application procedure, notably those set out in
Article 7 (see above), which would ensure that applications were
considered within the UK. We would welcome further explanation
of the Government's view.
The EM states that "Article 12 prohibits
those admitted to the Member State as dependent relatives from
taking employment or vocational training and requires them to
remain dependent upon their sponsor". It goes on, "This
is clearly undesirable in settlement cases involving young people.
These need to become fully integrated into society and able to
support themselves". Article 12 in fact refers to "children
of full age" (ie adults) who are defined in Article 5 as
"objectively unable to satisfy their needs by reason of their
state of health". How could those covered by Article 12 "support
themselves?"
You claim that Article 13 "provides
that settlement be given to family members who have been in the
UK for more than one year and whose family situation is changed
by separation, divorce, or death". Article 13 states that
family members in such circumstances "may apply for an autonomous
residence permit", while providing that Member States shall
accept such applications where there are "particularly difficult
situations". Our interpretation is that the judgement of
what constitutes such a situation will be left to the Member State,
so that the proposed Article will leave the Government complete
discretion in granting or refusing rights of settlement in these
circumstances.
The Committee looks forward to receiving your
response to these points. In the meantime, the proposed Directive
remains under scrutiny.
2 February 2000
Letter from Barbara Roche MP, Minister
of State, Home Office to Lord Tordoff, Chairman of the Committee
I am writing in response to the comments and
questions raised by Sub-Committee F, with regard to the Explanatory
Memorandum on the Commission's draft Directive on the right to
Family Reunification.
The Government's response to the Committee's
comments and questions is set out below.
We note that the Government was party to the Conclusions
of the Special European Council at Tampere last October . . .
. The Explanatory Memorandum identifies no fewer than nine significant
differences from the UK's existing policy which the Government
intend to "draw to the attention of the Commission and other
Member States". Is it the Government's intention to resist
change by relying on its opt-out or to mitigate the extent of
any changes by negotiating a more acceptable text?
The Government's support for the Tampere Conclusions
[at which the European Council reiterated that the Member States
of the European Union must ensure fair treatment to third country
nationals who reside legally on the territory of its Member States],
is within the context of the Protocol on the position of the UK
and Ireland, annexed to the EC Treaty by the Treaty of Amsterdam.
The UK Government secured this Protocol for the express purpose
of ensuring that it retained the right to determine its own immigration
policies. Whilst the Government supports co-operation within the
European Union, it has indicated that its guiding principle will
be the maintenance of its frontier controls and effective immigration
policies.
We are taking an active part in the Working
Group discussing this draft Directive in order to monitor the
UK's position in relation to that of other Member States and will
draw attention to the policy issues we have identified. We will
exercise our opt-in only if we are satisfied that to do so would
not be detrimental to our own immigration controls.
The Committee would welcome a fuller explanation
of the Government's grounds for disagreeing with the Commission
on the question of subsidiarity.
A lack of a common approach by all the Member
States was recognised as a potential outcome for Title IV measures
when the UK and Ireland's Protocol was negotiated. In any event,
Denmark's special position under the Treaty means that it cannot
be bound by Community law on this measure.
Several Member States have mirrored concerns
identified in the Government's Explanatory Memorandum. It is clear
that many countries have difficulty with these proposals and unanimity
will not be easy to achieve.
If, within the three-month period allowed in
the Protocol, the Government decides not to exercise its opt-in,
this would not prevent us from doing so at a later stage if the
Directive which is finally agreed is acceptable and we do not
wish to be out of step with measures being operated in other Member
States. In the alternative, where difficulties remain, we could
choose to shadow selected individual measures through UK Immigration
law, whilst not implementing those which would undermine existing
immigration policy.
Whilst acknowledging the Government's legitimate
concerns, the Committee takes the view that the difference in
the rights enjoyed by EU citizens who have exercised their right
to free movement and those who have not has become anomalous.
Does the Government wish to preserve this anomaly?
The Government can comment only on any difference
as it applies to British citizens: other EC nationals are automatically
considered on the basis of Treaty rights in the UK. It is recognised
that the situation for British nationals exercising, and not exercising,
Treaty rights may appear anomalous, but in reality the two cases
are not comparable.
The rights provided in EC law for EC nationals
exercising their freedom of movement under the Treaty are designed
to ensure that there are no hindrances put in the way of such
freedoms. The rights of residence are couched in those terms and
assume that the EC national is likely to return to his country
of origin at some time; for that reason, for example, there is
not routinely an entitlement to (in UK terms) settlement. Those
rights are then extended by analogy to a Member State's own nationals
returning after having exercised Treaty freedoms, on the ground
that to do otherwise would similarly deter the exercise of the
right of free movement. The same reasoning cannot extend to those
who have not exercised that right.
Thus the EU rules reflect different policy concerns
from those of domestic immigration law, and the two systems involve
a different balance of rights (although in fact the two systems
work together in practice: see Sahota [1997] Imm AR 429;
Boukssid [1998] Imm AR 270). The provision in the Immigration
Rules for family reunion for British Citizens who have remained
resident in the UK is based on the proposition that the third
country national spouse will settle permanently in the UK; that
is why requirements are made as to the commitment to the marriage
and to the availability of sufficient maintenance and accommodation.
The conditions of residence from which the third
country national spouse benefits under Community law (five year
residence document, with the possibility of applying under the
Immigration Rules for indefinite leave to remain after four years)
are very different from those from which a third country national
spouse would benefit under the Immigration Rules (indefinite leave
to remain after one year). It is therefore difficult to compare
the two systems and why the requirements for admission under the
Immigration Rules for a spouse are more rigorous. The Government
could not accept Articles 1-4 of the Directive for this reason.
Article 7 provides that the application for reunification
should come from the third country national in a member state,
whereas under current UK rules the applicant must not be the resident
but the person seeking entry or leave to remain. Our view is that
the Directive (Article 1) confers a new right on legally third
country nationals, and that therefore only the "right-holder"
is able to exercise the right conferred. Even under the present
proposal, third country nationals outside the EU would have no
autonomous right of entry under EU law.
Under the Immigration Rules, prior entry clearance
is mandatory for all persons seeking admission to the UK for settlement,
or in a category leading to settlement. The Rules require that
an applicant for entry clearance must be outside the UK and Islands
at the time of the application. Our current position is that it
is the applicant's case which must be considered, since he or
she is the person applying for entry clearance to come to this
country. The position of the sponsor in the UK may be relevant
to that but legally the sponsor has no "locus" in the
consideration of the application.
The Government does not accept that it is desirable
for this position to be changed. Where family reunion is sought,
the wishes of the person in the UK may be of the utmost importance,
but they cannot be the sole consideration. We must be satisfied
that the admission of family members is appropriate and in accordance
with the Government's published policies on immigration control.
The necessary interviews and enquiries into the claimed relationship
of the parties concerned and the personal circumstances of the
family members living overseas can only be made effectively overseas.
Moreover, settlement entry clearance applications are required
to be made in a person's country of origin, or the country where
they are ordinarily or habitually resident, to ease the process
of obtaining documents and verifying facts.
The Government cannot accept Article 7 for these
reasons.
Do you accept that there is the potential for
discrimination in the Government's present approach to Article
9, which suggests a common minimum standard for maintenance and
accommodation?
In the Government's view, the potential for
discrimination could only arise if two applications with identical
facts were to be decided differently. The Government's present
policy recognises that in respect of maintenance and accommodation,
applications for family reunion in the UK can rarely be deemed
identical. Every family reunion application turns on its own particular
facts and must therefore be decided on its own merits, in order
to make a fair and balanced decision.
The Immigration Rules governing admission to
the UK contain maintenance and accommodation criteria that require
an applicant to have the basic means to support themselves and
any dependants without resource to public funds.
The finances required by each individual will
vary according to their purpose of entry, how long they intend
to stay and how many dependants they need to support. The Government
therefore considers that it is neither possible nor desirable
to set a blanket baseline figure for the majority of applications
for entry to the UK.
The draft Directive takes this a step further
and seeks to set a minimum standard across the Member States.
This concept is even more difficult. Living costs vary not only
between Member States but also across the regions of individual
countries.
Whilst the Commentary on Article 9 leaves it
to the discretion of Member States to evaluate the adequacy of
accommodation, with regard to maintenance it states that the minimum
amount of resources required to be sure that the applicant will
be able to satisfy the family's needs may not be higher than the
minimum income guaranteed by the State. This makes no allowance
for the current expenditure of the sponsor, or the projected costs
of supporting the family unit.
In deciding whether or not a sponsor will be
able to maintain and accommodate themselves and their dependants
in the UK, the Government takes into account both the current
and potential financial position of the sponsor and the family
unit. Applications need to be considered on this basis in order
to be fair to the individuals concerned whilst ensuring that there
will not be an additional burden on state funds. In the Government's
view this does not sit well with the concept of a common minimum
standard across the Member States.
The Government's objection to the prohibition
on charging for family reunification applications does not seem
to take account of other changes in the application procedure,
notably those set out in Article 7, which would ensure that applications
were considered in the UK. We would welcome further explanation
of the Government's view.
As explained above, the Government is not prepared
to accept that the application for family reunion should be made
by the family member living in the UK. As far as fees are concerned,
processing applications in the UK would not reduce the amount
of work to be processed by diplomatic posts abroad. Indeed, it
is possible that there might even be additional resource implications
attached to such a suggestion, as there would be a certain amount
of duplication of effort in overseeing the application in the
UK whilst carrying out interviews and detailed enquiries overseas.
As far as applications for variation of leave
in the UK are concerned, I invite the Committee's attention to
the fact that section five of the Immigration and Asylum Act 1999,
which makes provision for the Secretary of State to charge fees
for processing applications, is scheduled for implementation in
October 2000.
How could those covered by Article 12 (children
of full age "objectively unable to satisfy their needs by
reason of their state of health") "support themselves"?
Under the Immigration Rules, persons admitted
to the UK on the basis that they are living in compelling compassionate
circumstances overseas and that they are wholly or mainly dependent
upon their UK based sponsor are given settlement on arrival and
are thereby entitled to study or take employment. In the case
of elderly dependants the sponsor is required to sign a five year
undertaking to support the applicant so that they do not become
a burden upon public funds. Because of their age they are not
likely to find employment.
However, the situation for young dependants
is somewhat different. The fact that a person is incapable for
whatever reason (including their state of health) of caring for
themselves overseas does not necessarily mean that they would
be unable to do so in the UK. I am not satisfied that Article
12 clearly restricts the prohibition on young people taking employment
or vocational training to those forced to be dependent by reason
of their ill health; the commentary refers to applicants who have
been eligible for reunification solely on the basis of their dependence
on the applicant. This is an issue which is being clarified by
the Working Group.
My concern is that where a third country national
has been admitted for settlement to the UK by reason of his or
her dependency on their UK based sponsor, we should not prevent
them from taking more control of their own lives where the opportunity
arises. If their sponsor should cease to be able to care for them,
it would be far better if they were equipped to care for themselves
to some degree rather than becoming a burden on the State.
Our interpretation of Article 13 (applications
for autonomous residence for family members who have been in a
Member State for more than a year and whose family situation is
changed by separation, divorce or death) is that the judgement
of what constitutes such a situation will be left to the Member
State, so that the proposed Article will leave the Government
complete discretion in granting or refusing rights of settlement
in these circumstances
The commentary refers to an obligation to issue
an autonomous residence permit after one year's residence where
the family member is in a particularly difficult situation. It
is difficult to see how the quoted examples could not be regularly
presented as "particularly difficult situations". The
Government's interpretation is that in practice Members States
will not have discretion over when an autonomous residence permit
should be granted. This is in direct conflict with present policy
and is not acceptable.
8 March 2000
Letter from Lord Tordoff, Chairman of
the Committee to Barbara Roche MP, Minister of State, Home Office
Thank you for your full response to my letter
of 2 February regarding the above proposal. Sub-Committee F of
the European Union Committee has now looked again at the proposal
and at your answer. The members of the Committee are unconvinced
by the detailed arguments put forward by the Home Office, and
feel that within the context of Title IV the proposed Directive
could make a positive contribution to the Community's objective
of establishing "an area of freedom, security and justice".
Nevertheless, we accept that your criticisms of the proposal represent
current Government policy, and therefore we do not wish to challenge
them further at this stage. However, we remain concerned about
some of the broader issues raised:
Under the Protocol on the position of the United
Kingdom and Ireland, the United Kingdom is required to notify
the President of the Council "within three months after a
proposal or initiative [under Title IV] has been presented to
the Council, . . . that it wishes to take part in the adoption
and application of any such proposed measure". Article 3.2
of the Protocol, however states that if agreement cannot then
be reached within a "reasonable time", the other Member
States may proceed without the United Kingdom. This draft Directive
is dated 1 December 1999. Has the United Kingdom notified the
President of the Council that it wishes to take part in the adoption
of this measure?
If the answer to this first question is yes,
then we remain unclear as to the Government's strategy. Your letter
contains a full account of the current policies of the United
Kingdom on family reunification, and offers no hint that the Government
is willing to change these policies. Would the Government contemplate
opting in to a proposal which would entail any change in existing
policies? If not, what objective have the Government set themselves
in their negotiations with those Member States who are bound by
Title IV measures?
We remain puzzled by the Government's interpretation
of subsidiarity. The "Protocol on the Application of the
Principles of Subsidiarity and Proportionality" states that
the subsidiarity principle will be met when "the objectives
of the proposed action cannot be sufficiently achieved by Member
States' action in the framework of their national constitutional
system and can therefore be better achieved by action on the part
of the Community". We note that all measures under Title
IV are proposed with the intention to establish "an area
of freedom, security and justice", in which the rights of
third country nationals will be safeguarded (Article 61(b)). In
this context, we cannot see how the Commission's objective to
create "common criteria" for the right to family reunification,
giving improved certainty as to the law and ensuring that third
country nationals are less likely to select their country of destination
purely on the basis of more generous conditions available there,
can be achieved by Member States acting independently. The Protocols
enjoyed by the United Kingdom, Ireland and Denmark have no bearing
on the issue as measures under Title IV are addressed either at
those Member States who have no Protocol or at those who choose
to opt in to the measure. We would welcome a fuller explanation
of the Government's grounds for arguing that the current proposal
does not comply with the principle of subsidiarity.
The Committee looks forward to receiving your
response to these points. In addition, we note that the Government
has discussed the issues raised by this proposal with a range
of NGOs. Along with the House of Commons Scrutiny Committee we
ask that we may be kept informed of the progress of these consultations,
and in due course of the tenor of any comments submitted to the
Government. In the meantime, the proposed Directive remains under
scrutiny.
23 March 2000
Letter from Barbara Roche MP, Minister
of State, Home Office to Lord Tordoff, Chairman of the Committee
I am writing in response to your letter of 23
March, in which you raise further questions from Sub-Committee
F with regard to the Government's position on the Commission's
proposal for a Council Directive on the right to Family Reunification.
The Government's response to the Committee's
questions is set out below.
This draft Directive is dated 1 December 1999.
Has the United Kingdom notified the President of the Council that
it wishes to take part in the adoption of this measure
The Commission proposal was formally presented
to the European Parliament and the Council on24 January 2000.
We have three months from such presentation of the proposal (until
24 April) in which to decide whether we wish to opt into these
proposals. A letter advising the Committee of the Government's
decision will follow shortly.
Would the Government contemplate opting into a
proposal which would entail any change in existing policies? If
not, what objective have the Government set themselves in their
negotiations with those member States who are bound by the Title
IV measures
The Government has not made a pre-emptive decision
never to opt into any proposals or category of proposals.
Where adopting a proposal would entail a change
in existing policies, we might still decide to exercise our opt-in
if the proposal met with immigration objectives and inclusion
in the measures would be in the best interests of the United Kingdom.
Where a proposal raises fundamental policy concerns, we are not
likely to exercise our opt-in, but this would not preclude us
from broadly aligning ourselves with the policies of our fellow
Member States.
Before opting into any proposals, we would need
to be satisfied that to do so would not be detrimental to the
maintenance of our frontier controls and our ability to set our
own immigration policies. Against this background, each proposal
would be considered on its merits.
We would welcome a fuller explanation of the Government's
grounds for arguing that the current proposal does not comply
with the principle of subsidiarity.
We do not dispute that Union Institutions are
entitled to engage in proposals aimed at improving the integration
of third country nationals into the societies of their Member
States of residence. However, we are not convinced that, in the
case of the present proposal, the Commission has adequately demonstrated,
including by means of qualitative or quantitative indicators that
its objectives cannot be met by action at the level of the Member
States.
The Committee has also asked to be informed
of the progress of the Government's consultations with NGOs. I
attach a copy of JCWI's report on the Government's Explanatory
Memorandum together with my reply and a copy of the comments received
from UNHCR (not printed). The next meeting with NGOs is
scheduled for 2 May.
18 April 2000
Letter from Barbara Roche MP, Minister
of State, Home Office to Lord Tordoff, Chairman of the Committee
I refer to the Government's Explanatory Memorandum
of 10 January on the Commission proposal for a Council Directive
on the Right to Family Reunification.
I am writing now to let you know that the Government
has decided not to opt into this proposal.
We have given full and careful consideration
to the UK's position and have taken into account all the comments
made by NGOs and the Scrutiny Committees.
We reached the decision not to opt into the
proposal because of concerns that doing so would remove the UK's
ability to formulate and adjust policies in relation to family
reunification as a matter of domestic law.
I can, however, assure the Committee that in
remaining outside this proposal it is not the Government's intention
that the UK should be seriously out of line with our European
partners in this important area of immigration policy. For that
reason we shall continue to participate fully in discussion of
the text.
26 April 2000
Letter from Lord Tordoff, Chairman of
the Committee to Barbara Roche MP, Minister of State, Home Office
Thank you for your letter of 18 April, responding
to my letter of 23 March. I am grateful for your clarification
of the Government's approach to Title IV measures. Thank you also
for your letter of 26 April, informing me that the Government
has decided not to opt in to the proposed measure. Sub-Committee
F considered this correspondence at its meeting on 17 May and
has asked me to raise the following concerns.
First, the Committee noted that a briefing supplied
to UK members of the Economic and Social Committee set out the
Government's current position in rather more detail than your
letter of 26 April. The briefing alludes to some of the options
open to the Government—either to opt in to a final agreed
Directive, should it be acceptable, or to "shadow selected
individual measures through UK Immigration law". While the
Committee welcomes the assurance that the UK will not be seriously
out of line with our European partners, the fact that the Government,
while opting out of a Community proposal, may nevertheless contemplate
adopting the substance of that proposal by means of domestic legislation,
is clearly a matter of some importance. The Committee would be
grateful to receive some indication of the elements of the present
proposal which the Government may be minded to take over into
domestic law.
Secondly, you state that the Government intend
to "participate fully in the discussion of the text",
despite having no say in the final adoption of the measure. What
is the Government's goal in these discussions—to monitor
progress, or to influence the final agreed text? If the latter,
I would welcome some further indication of the extent to which,
and how, the Government would wish to see the text amended.
Given that the Government has decided not to
exercise its right to opt into the proposed measure, the Committee
has agreed to clear it from scrutiny. However, the Committee expects
to be kept informed to the progress of negotiations. Any revised
text should be deposited together with a new Explanatory Memorandum
in accordance with the usual scrutiny procedures.
18 May 2000
Letter from Barbara Roche MP, Minister
of State, Home Office to Lord Tordoff, Chairman of the Committee
I am writing in response to your letter of 18
May, in which you raise further questions from Sub-Committee F
with regard to the Government's position on the Commission's proposal
for a Council Directive on the right to Family Reunification.
The Government's response to the Committee's
questions is set out below.
While the Committee welcomes the assurance that
the UK will not be seriously out of line with our European partners,
the fact that the Government, while opting out of a Community
proposal, may nevertheless contemplate adopting the substance
of that proposal by means of domestic legislation, is clearly
a matter of some importance. The Committee would be grateful to
receive some indication of the elements of the present proposal
which the Government may be minded to take over into domestic
law.
Until a final text is agreed, it is not possible
to identify which particular measures might be suitable for adoption
into domestic legislation. In general terms, consideration will
be given to "shadowing" any agreed measures which are
not already covered by our immigration laws, provided that they
would not undermine existing immigration policy. We will keep
Parliament informed about any measures we might seek to adopt.
Secondly, you state that the Government intend
to "participate fully in the discussion of the text",
despite having no say in the final adoption of the measure. What
is the Government's goal in these discussions—to monitor
progress, or to influence the final agreed text? If the latter,
I would welcome some further indication of the extent to which,
and how, the Government would wish to see the text amended
Our intentions are twofold. First to monitor
the progress of the draft Directive and to evaluate the UK's position
in relation to the final agreed text. Secondly, to assist where
possible in negotiation of amendments to the text in an effort
to find acceptable solutions to the difficulties raised by other
Member States. This could be of particular benefit since many
Member States have expressed policy concerns similar to those
identified in our own Explanatory Memorandum.
I confirm that any revised text of the draft
Directive will be deposited with a new Explanatory Memorandum
in line with usual scrutiny procedures.
5 June 2000
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