Select Committee on European Union Minutes of Evidence


Examination of Witness (Questions 1 - 19)

TUESDAY 17 JULY 2001

PROFESSOR ELSPETH GUILD

Chairman

  1. Good morning, Professor Guild. Thank you so much for coming and talking to Sub-Committee F again. You are a welcome visitor, and one we have had the great pleasure of having on these committees previously. We are most grateful to you; you have become our resident person. I wonder whether you would like to give a brief outline of your views about the Directive before the sub-committee asks you questions; it would be helpful to us.

  (Professor Guild) Thank you very much for such a warm invitation and welcome here. It is a pleasure to be before you again. I think the work of your Committee is extremely important. The proposal of the European Commission for a Directive on the legal status of resident third-country nationals has two sources which I think are important to bear in mind: one is the political source—why are we getting this proposal now; and the other is the legal source. I will deal with the first one first. Why has this proposal been put forward? Under the provisions of the EC Treaty, the new Title IV, there is no time limit on introducing a measure for long-resident third-country nationals. So why has it come forward now? The answer to that question comes from the increasing pressure which has been brought to bear on the European institutions and on the Member States to try to equalise the rights for long-resident third-country nationals. It was agreed and all Member States, including the UK, very strongly considered that the question of acquisition of national citizenship remained within the control of the Member States. To compensate for allowing that to remain, the decision was taken, "We need to do something with the long-resident third-country nationals in Europe". It is not fair that a third-generation Turkish national born in Germany should have completely different rights from a second-generation one born in the UK. That was the political rationale which was picked up by an increasing number of non-governmental organisations and resulted in this proposal being put forward. Secondly, the legal basis: the legal basis is of course Article 63, the right to reside, and from that the Commission has brought in various other rights as well. The most important aspects of the proposal as I see it are, first of all: how the status is acquired; what are the rights which attach to it; and how is it lost. Those are the three fundamental issues of interest to any third-country national, to see whether this actually has any added value for him or her. The first issue on acquisition: what is the scope, and who can acquire it? The answer is:-Virtually any third-country national resident in the European Union. The weakness of the scope, as I see it, is the exclusion of persons who have a subsidiary form of protection—what would be here our Exceptional Leave to Remain holders who do not start clocking up time until after they have been recognised. The Directive quite correctly recognises that there are groups of third-country nationals who will have better rights. The basic principle is, once you have done five years as a third-country national resident in a Member State you will be eligible for the status of a long-resident third-country national. It is a five-year position, usually starting from day one when you arrive but delayed for temporary protection subsidiary protection people. It is also delayed for students; they may have to clock up ten years before they get long-term resident status. The acquisition is by right. Once you have done your time you get the status with, of course, an exclusion for what is called "public order", (but in some parts of the proposals it is called "public policy" there is a bit of confusion there), and domestic security. Those are the exclusion provisions. That probably gives the Member States as much leeway as they need to exclude people who they legitimately feel will be a danger and should not get the status. What are the other requirements? You have to have at least minimum social security resources of your own, unless you are a refugee; and you need to have health insurance. The sickness insurance part is not particularly relevant in the UK framework. Moving on then to the second part: what are the rights you get? First, you get a whole series of rights, basically non-discrimination rights in your own Member State, These are unlikely to have very substantial consequences in the UK, although one says that and then of course a case comes forward where we see there is some discrimination which is taking place against the third-country national. By and large, they cover equal treatment at work, equal treatment in benefits etc. The more radical part of the rights, of what you get, is that you get a right to go and live in any other Member State, and with that right to move and reside comes the right to engage in economic activities, to be employed or self-employed or to be a student. That is perhaps the most revolutionary part. That is what third-country nationals at the moment do not have; so that is what is of particular interest. The provisions are set out to permit a third-country national who goes to exercise the right of residence and the economic rights in another Member State gradually to acquire the status of long-resident third-country national in that second Member State, at which point they lose the status in the first—so you will not have it in two countries at the same time. What then are the bases for loss of the status: absence from the territory for more than two years; fraud in acquisition; acquisition of status in another Member State; and there is a right to withdraw the status or to expel on the basis of public order and domestic security. Again, the same reasons for refusing to give it in the first place also become reasons for withdrawing the status in the end. The limitations on expulsion are that the person must be a sufficiently serious threat to require some kind of enforcement action if the same activities had been carried out by own nationals; criminal convictions in themselves are not enough to take the status away; nor are economic considerations—so being on the dole does not mean you lose the status. The weaknesses of the Directive from the perspective of UK law: first, the UK is permitted to continue its national provisions of providing Indefinite Leave to Remain. That status will not be the equivalent of long-resident status for the purposes relevant to other Member States. The Directive is unclear on whether that status can have the effect of triggering rights within the State itself. That is unclear from the wording. What is very clear is that if you get Indefinite Leave to Remain under domestic proceedings you do not automatically get your right to go and establish yourself in another Member State. It lacks a beneficial side of cross-recognition of statuses which would be useful, and which would also permit a streamlining of domestic administrative processes. Perhaps I will stop there. I think I have identified what I think are the key elements, and what I think is the key weakness of the proposal. Perhaps I shall leave it to you to tell me which bits you would like further clarification on.

  2. Thank you very much. That was an absolutely tremendous tour de force of the whole of the Directive. The areas we need to clarify will be clarification of what you have already told us; but perhaps we need to make sure we delve a little deeper into those areas. Could I start by asking you whether you feel that the proposals are radical enough? How radical are the proposals in the Directive?

  A. How long is a piece of string? On the one hand, in terms of creating a status which is durable for third-country nationals in the Member States, there is nothing radical about this proposal whatsoever. The Member States have already agreed the Council of Europe recommendation on a secure residence for aliens, which in some respects is in fact more generous than this proposal. In the study which we carried out at the University of Nijmegen for the European Commission on the national provision of resident status for third-country nationals, in no Member State did we find that this kind of proposal would be terribly dramatic, except in Greece which has a very, very long 15-year period for acquiring the status. From the perspective of rights within the Member States this is not a radical proposal; in fact, it does not even meet the procedure which currently applies in the UK. While it may be useful in one or two Member States—there may be one or two aspects which would give further rights—it would not make much difference here. In terms of the other Member States it should be, from that perspective, quite acceptable and certainly not radical. Chapter 3 of the proposal, which gives a right to reside and exercise economic and study activities in other Member States, is something new. However, it needs to be seen in its context. Already third-country nationals are entitled to go and work in another Member State if their employer based in one Member State sends them to undertake that work in another Member State. That was decided in 1994 by the Court of Justice, and the Commission has put proposals on the table for a Directive giving effect to that. There is also a proposal for a Directive on the table to allow any third-country national who is established in one Member State to go to any other Member State to provide services. Thus we already have a system in place to permit limited free movement for third-country nationals for economic purposes. What this proposal will do is widen that; complete the internal market from the perspective of allowing all workers in the Member States the same right to circulate for the purposes of economic activities; and it will also clarify the position of third-country nationals as recipients of services and whether they can have rights of movement in that respect. It would provide some coherence to existing Community law—bringing everybody under one particular route. From that perspective it should not be perceived as radical to the Member States. Is it radical enough—to move to the other half of the question? It seems to me that one of the aims that the UK Government achieved at the Tampere Summit in 1999 was the commitmentto use the mechanism of cross-recognition in addition to harmonisation in this new Title IV. It would perhaps be more radical for the Member States to include in this proposal that objective so fiercely fought for by the UK Government in Tampere. Jack Straw came back saying, "We won. We've got the principle of cross-recognition in as a central part of new Title IV", and that is not reflected in this proposal. I would say perhaps the place where radicalism is lacking is in that respect. That is to say that this should not only apply with the long-stop of five years to third-country nationals resident in the Union, but this should also include cross-recognition of the earlier grant of a durable resident status in the Member States. That would have a virtuous effect on the Member States, in that it would encourage them to consider whether it is appropriate to grant an early recognition of a long-resident status, rather than introducing legislation as Greece did delaying for 15 years the point at which people become entitled to a long-resident status.

  Chairman: Thank you very much indeed for a very full and very helpful answer.

Baroness Greengross

  3. I wondered if you could see any conflict between Member States' decisions to grant this status, such as Leave to Remain, and the granting of EC status. Would you expect the existing procedure and criteria for granting Indefinite Leave to Remain to remain intact?

  A. As the Directive has been put forward we would continue to have two tracks: there would be the Indefinite Leave to Remain track, which would be the national track, which would provide certain rights; and then when and if (what I expect is if) a third-country national wanted to go and live in another Member State at that point he or she would make an application for the EC card. It is highly unlikely that it would become an automatic procedure, unless there were built into the proposals cross-recognition as well, in which case we would have one streamlined provision. What I foresee, as it is at the moment, is that the national provision would continue, and when someone wanted to go and work in Germany they would apply to the Home Office, send the documents in and say, "Give me my card, I'll go to Germany now". There is no reason why that would be complicated or difficult. The requirements are very limited, and there is no reason why it should be more complicated than a passport application, for instance, in terms of getting the card and then going off and travelling.

Chairman

  4. Would that happen in practice? You say it should not be more complicated but whether it would happen in practice with the bureaucratic problems we might have?

  A. Whether an administrative provision, which is set out in clear and precise terms, becomes a practical quagmire depends to a very large extent on the political will to see its fulfilment. For instance, the issue of passports last year around this time turned into a horrible abysmal quagmire which was in fact sorted out quite quickly because the political will was there to get it sorted out. I think that is probably as far as I can go in answering that question.

Lord King of West Bromwich

  5. Given that Member States are pledged to mutual recognition of each others' expulsion decisions, do you see any prospect of a move towards mutual recognition of decisions to grant long-term resident status?

  A. This is a terribly important question, and I am glad you have raised it. We have opted in to the Directive on cross-recognition of expulsion decisions, and it seems to me that that creates quite a strong moral duty also to opt into this proposal, and also to press for the inclusion of cross-recognition of the resident statuses in order to safeguard persons. If we are going to recognise one another's expulsion decisions then we must ensure that people get proper remedies and that their security of residence is properly respected. For instance, if someone who had a long-term resident status in, say, Sweden came on a visit to the UK, while the person was in the UK the Swedish authorities decided there were serious grounds for thinking the person had been involved in criminal offences, giving rise to a minimum penal penalty of over one year and made an expulsion decision, the Swedish Government should not then send that decision to the UK and say, "Please expel him while he is in the UK in cross-recognition of our decision". The UK courts and UK law at that point would look at the affair as expelling someone who is a visitor. Therefore, the kinds of considerations which would come into play about family links, long-residence, etc would not be relevant to the judicial consideration here about whether the person should be expelled or not. That would need to take place in Sweden. You can see this turning into a horrible mess and you can see UK courts becoming quite unhappy about permitting residents' rights to be extinguished. The way round that, as I think you have rightly identified, is to include in this proposal early cross-recognition of long-term residents' rights, but with a five-year long-stop to prevent Member States making long-term resident status impossible to acquire.

Chairman

  6. I wonder if you could comment on perhaps, say, the UK granting Indefinite Leave to Remain to a third-country national who then decides to absent himself from the UK for a period of time, six months, whatever. This would make him ineligible, as I understand it, according to Article 5 for the EC long-term resident status. What are your views on that?

  A. I think this is one of the weaknesses of the proposal. It would be quite easily remedied if Article 5, instead of being written as Article 5, changed itself into or was said to apply the protection against loss of the status which permits absence for up to two years or longer if necessary. It seems to me it is a bit odd that you have this limitation of six months in the acquisition stage and then you have, in the withdrawal of the status in Article 10, that people can be away for up to two years or longer if necessary. It seems to me that should actually be dove-tailed together, which would not be a particularly dramatic change.

  7. You think that should be included?

  A. Yes, I think that would be eminently sensible and would take into account the fact, which would be particularly necessary if the proposal remains in its current form, that it is five years and then you get a permit in the same way you get a travel card. If we get cross-recognition at an earlier stage then of course it is not relevant.

Baroness Knight of Collingtree

  8. I want to know some answers to questions that come into my mind in reading this. For instance, at present the Immigration and Nationality Directorate does indeed have at least a degree of discretion in assessing applications for Indefinite Leave to Remain. To what extent would this discretion be removed, were the Directive to be adopted and the UK to opt in? There are a number of questions in my mind about this. I particularly want to touch on (as you did yourself, Professor) the situation with regard to students. In paragraph 3 it says, "Residence as a student would not normally qualify", but then goes on to say that, yes, it would because "half of pre-doctoral students' duration of residence could count ..." Here is something which is a very big concern to a number of people who, firstly, do not want to deter universities and colleges in this country from offering places to students from overseas; and, secondly, because of the concern there is in those countries of origin, that the students go away, learn a skill or profession which would be of immense value in their own country but do not choose to go back. There are two worries there, and they are just two of many I thought I would mention.

  A. If I could deal first with the student question and then go back to the discretion question. For students, the pre-doctoral ones, a half year counts as a year. Basically at the end of ten years they would get this status. That is consistent with UK policy at the moment. The UK provisions permit someone who has resided lawfully for ten years to get Indefinite Leave to Remain.

  9. Is it normal for a student to take ten years to complete his or her studies?

  A. It is not that uncommon, particularly when you have students who come over to attend boarding school, for instance. They have started at ten or 12 at boarding school and then gone on to do their university studies. I think the Home Office can give you figures on how many people a year get Indefinite Leave to Remain on the basis of ten years' residence. Almost all of them are students because it is really the only basis on which you are likely to live in the UK lawfully without getting the status otherwise. I think it may be a few hundred a year. I am sure the Home Office can clarify that. The second source of the ten-year policy is the Council of Europe Convention on Establishment, and the UK has ratified that. That provides that Member States have the choice of three different ways of recognising a long-term resident's right—the long-stop being ten years' lawful residence. In the Home Office information about the ten-year policy it explains that it is based on the Council of Europe Convention on Establishment. I would assume that all Member States which have ratified that Convention will have some kind of similar provision in their law. Whether students actually stay or not is another matter. After ten years' residence they will be eligible to apply to remain on the basis of domestic law. They will come within the Council of Europe Convention on Establishment and it is, therefore, not surprising that provision is made for them in this Directive on that basis.

  10. Surely there is a blurring of the line here between schoolchildren and students? Professor, what you have said is that any parents abroad who choose to send their children to school in this country are actually preparing for them to remain here always. I cannot believe that a schoolchild who is sent over to school in Britain is actually classed as a grown-up adult person establishing the period of time for residence. Is it so?

  A. In my experience, in practice, in making these applications, in reading the immigration rules, the answer to that question is, yes, they are treated the same way; but you may wish to clarify the point with the IND officials when they arrive. The fact is very few students actually take it up. Although they may have the right, they may come within the provisions, there are very few who actually do take it up. It is for that reason in practice it does not actually cause problems. Perhaps I could return to the first part of your question, which is the issue of discretion, and the discretion of IND in granting Indefinite Leave to Remain. What this Directive would do, would be that it would reverse the situation of what we have at the moment in the UK. At the moment an individual applies for Indefinite Leave to Remain and it is for the State to decide whether or not to grant that in accordance with the law but also in accordance with the fairly wide discretionary grounds. The Directive would say, "If you fulfil the criteria, you will have a right"; so we say that instead of it being for the State to grant the benefit to you, you would have a right but the State can refuse you that right, if it thinks on the basis of public order or domestic security that it would not be right to give you the status. In our community we like to have certainty so that people who are making applications are fairly confident about what the outcome will be. Because of that need for legal certainty when people are arranging their lives, and the understanding of this, in actual practice in the UK anyone who fulfils the requirements to get Indefinite Leave to Remain almost always gets it; it is very, very rare for it to be refused. What the Directive would do would be to say, "In the interests of legal certainty we will say you have a right, and then it is for the State to explain why that right should not be given to you on the basis of your particular circumstances". I do not think that it would create a dramatic difference either in law and certainly not in practice. Already where the IND refuses Indefinite Leave to Remain to an individual that individual will have a right of appeal. The way in which the Immigration Appeal Tribunal looks at these matters is very much balancing—has the individual fulfilled his requirements; what are the reasons the State is giving for refusing status. Thus, in effect, the difference once it becomes a matter of judicial concern becomes very similar to what we have in this proposal.

Chairman

  11. Could you just tell me, in your experience, is the exercise of discretion by the IND generally in favour of applicants or against them?

  A. It is very rare in my experience that I have seen what appears to be an arbitrary refusal to grant Indefinite Leave to Remain. I have been practising since 1989 and I have seen one or two cases where I have been unable to understand the rationale about why Indefinite Leave to Remain has been refused. On the other hand, there are quite a number of borderline cases with compassionate circumstances where the person does not fulfil the criteria but where the Home Office has granted Indefinite Leave to Remain; this happens not that infrequently on family breakdown, or where there are family members and the person who has arrived is a visitor and does not come with any category but there are compassionate reasons to allow the person to stay. In effect in my experience it tends to be more in favour of the individual than against the individual.

  12. The numbers are very small in that category of discretion?

  A. Both on the positive and negative side it is a bare handful of cases, in my experience.

Baroness Gibson of Market Rasen

  13. In Article 4, which is the non-discrimination clause, it is very similar to Article 21(1) of the Charter of Fundamental Rights which, the Commission argues, "enshrines a number of rights conferred on the nationals of the Member States and on third-country nationals residing there". Can you explain in what sense the Charter confers rights; and would it be appropriate to attempt to implement the Charter by means of a Directive, given that the legal base is Article 63 TEC?

  A. I think that the wording used by the Commission is somewhat ambiguous about Article 4. As far as I understand it, the Charter does not confer rights. What the Charter does is it sweeps up a whole lot of rights people may have from a whole variety of sources. In this case Article 4 adds in a bit of salt and paper, some extra bits. You can say that parts of these are rights already conferred, and then other bits have drifted in from other sources. The other sources are, for instance, genetic characteristics and fortunes which are two I am not accustomed to in the EC context. Otherwise the majority of the other provisions come from Article 13 of the EC Treaty and the Directives which have now been adopted. You could say, "Okay, those are rights which are already conferred by Community law". One might say that there are certain rights which are conferred by Article 14 of the European Convention on Human Rights, but then that is drifting a little bit off into the wilderness, if one might say. It would be an interesting idea to commence to implement provisions of the Charter through Directives. It would seem to me there would be a competence question, because Article 13 of the EC Treaty does not provide an "any other grounds" phrase as, for instance, Article 14 of the European Convention on Human Rights. One could easily see a whole competence issue coming up. It would seem to me a source of substantial conflict between the Member States in any event between those who wanted the Charter to have legal effect immediately and those who wanted to delay the issue. Insofar as it might be argued that Article 4 is seeking to implement the Charter by the back door, that would seem to me to be perhaps opening up a mare's-nest, which is not terribly helpful at this time. Cutting down Article 4 might be a better way to avoid disagreements.

  Baroness Gibson of Market Rasen: That is very helpful. Obviously with this particular Article there will be a lot of concentration on it.

Chairman

  14. Could you explain how the Race and Framework Directives link in to this?

  A. I have not particularly compared the two. It would seem to me there would be substantial overlap in that the Race and Framework Directives apply to persons in the territory; they exclude immigration control questions. Therefore, in terms of rights which are granted to long-resident third-country nationals within the territory of their own Member State there will be substantial overlap, I would have thought. Where there is not overlap is, of course, in the question of acquiring the status, the immigration status, and in acquiring the status to go to other Member States. Those will be the two aspects where there is no overlap, and where one would need to bring in the equivalent of Article 4, or a provision just extending the Race and Framework Directives to this one which would probably have unexpected consequences which might go wider than intended.

Baroness Knight of Collingtree

  15. The Government's Explanatory Memorandum does refer to the UK's right to "impose immigration controls on individuals entering the country". That, of course, is guaranteed by the frontiers protocol to the EC Treaty. What are the implications of the Directive for the UK's exercise of immigration controls and frontier checks? Particularly, I would like to know, to what extent, if any, the Directive is going to conflict with Article 1(b) of the frontier protocol, which permits the UK to determine "whether or not to grant persons permission to enter the UK". I would just like to touch on point 6 which says that "Member States could refuse to grant long-term resident status where the personal conduct of the person concerned constituted an actual threat to public order". An "actual threat" might be a person waving a samurai sword who gets shot, with no intention of hurting anybody; or it might well be, surely, that the government of this country would consider that a person would not be a fit or proper person to come an stay here. To what extent will the powers of the country be curtailed by what is in here?

  A. First, on the frontiers protocol, Article 1, the legal answer is that the protocol is permissive; it allows the UK to retain border controls; it does not require it to retain border controls. Should the UK decide not to exercise border controls over a particular category of persons that would be compatible with the protocol. Let us leave then to one side the legal question and turn to the political question. Would the UK have to allow people into the country? What would be compatible with this proposal would be the maintenance of border controls for third-country nationals with the residence card as are carried out at the moment on Community nationals and on British citizens returning to the UK. You would have a control to check that the person did indeed have the status, has the document that proves the status, and therefore is entitled to cross the border. You would also be entitled, as the UK is entitled in respect of Community nationals, to prevent crossing the frontier if the person would be a threat to public policy, public security or public health. These third-country nationals will not get a greater right than Community nationals, as I understand the Directive. For instance, the UK stopped at the border and refused admission to a Dutch national a couple of years ago; the case was referred to the Court of Justice, and the Court of Justice spelled out the circumstance in which the UK is entitled to refuse admission to a Community national seeking to come to the UK to exercise economic activities. So that would remain, that power to check at the border and where there are grounds which are justified on the basis of public policy or domestic security to refuse entry. That would not be under Article 7, which is what we have to grant our third-country nationals—but it would probably be more under Article 3, which would be expulsion.

  16. Could I be absolutely sure what "entitled" means. You say "entitled", does that mean we must do it, or that we can choose, and to what extent could we still choose

  A. It seems to me that what we have done is we have again reversed the way in which it works, that a person who has got this right will be someone who is entitled to come in unless the state says "here are the reasons why we do not think you should be allowed to come in". Instead of the state saying "well, the power is in our hands, we will admit you or not depending on whether we like the look of you", the individual will say "I have completed this time period, I have fulfilled these criteria and, therefore, I have a right to come in". It may be easier to see this in terms of what happens to people who have Indefinite Leave to Remain in the United Kingdom and who go off for six months or a year abroad and come back. They are what are called returning residents. When they come back they have a presumption that they will be allowed back into the United Kingdom and they will resume their residence. They have done their time, they have got the long-term resident status, they are entitled to come in, but that can be lost and that can be lost in circumstances which are set out.

  17. That is very helpful. Could I finally just ask would it be fair to say that the difference is like saying in a court at the moment the person is innocent until he is proved guilty but it would reverse it to say that the opposite were true when it comes to the immigration policy?

  A. Yes. I think one might put it that way or one might say that we choose to recognise third-country nationals resident in other Member States as we recognise our own third-country nationals with Indefinite Leave to Remain. So we could say that this is like a form of cross-recognition, we are going to recognise that they have a right to come in and they will recognise that our third-country nationals have a right to come in.

  18. Finally, the question of passport granting, is that affected at all by the Directive? Must a country also afford with Indefinite Leave to Remain a passport of the country concerned?

  A. No. This would not have consequences for passports or who is entitled to passports. It would not transform a third-country national into a national with an entitlement to a national passport.

  Baroness Knight of Collingtree: Thank you.

  Chairman: Thank you very much. Lord Wright?

Lord Wright of Richmond

  19. Professor Guild, I wonder if we can just pursue another aspect of immigration control and that is visas. There is no mention of visas in the Directive at all. Is it your understanding that a holder of a long-term EC residence permit would have the effect of a Schengen visa, or would they still need a Schengen visa running in parallel with the permit? In other words, if the United Kingdom opts in with the Directive will the Schengen visa requirement fall away for long-term residents?

  A. Thank you, your Lordship. I think this is a point of substantial confusion. The Commission has just published in the last week a proposal on the right to travel which is based on recognition of residence status in the Member States. It is unclear as yet whether the United Kingdom will be opting in or opting out. I have not yet had a chance to analyse it in depth, however we were assured by the Commission that of course one of the statuses which would give the right to travel and take the place of a visa would be the EC residence permit. There are numerous other statuses. This proposal may replace the Schengen Executive Committee decision on what statuses give an individual the right to be in the territory of another Schengen state. The abolition of the border control of course then did not mean that you automatically had a status in the other country.


 
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