Examination of Witness (Questions 20 -
TUESDAY 17 JULY 2001
A. So this proposal is intended to deal with
that. If the United Kingdom chose to opt out, as it indicated
it would veto the proposals put forward by the Commission in 1995
on a right to travel for third-country nationals, nonetheless
it could arrange some kind of an addendum or a protocol or an
agreement that UK issued residence documents, long-term residence
permits, would be valid even though the United Kingdom was not
opting into the full range of residence permits that would be
21. Can I just ask a supplementary to that because
Baroness Knight asked whether this had implications for passports.
Does it have any implications for the United Kingdom's practice
of not issuing an identity card?
A. No. In my understanding of this it would
not have any consequences as regards identity cards. One could
say that the long-term residence permit is a form of identity
A. But nonetheless for UK purposes it would
probably need to be supplemented with a passport. The question
of how you cross the border is not dealt with in this proposal,
rather it says you will have a rightlet me just check on
this to make sure I am getting it rightof residence and
in order to exercise the right of residence you have to produce
certain things. In order to get your residence permit in the other
Member State you have to produce your long-term residence permit
and an identity document, but of course for UK purposes that will
be a passport.
23. Or a driving licence.
A. It does not deal with the question of how
you cross the border at all.
Lord Wright of Richmond: Thank you very much
24. Presumably the Explanatory Note will give
examples saying if you leave the territory, when you come back
into the Schengen area do you have to another visa?
A. What may happen is that the documents that
are listed in the annex to the proposal will take the place of
a visa for the purposes of travel in the Member States, or in
those Member States that are participating and, therefore, once
you have got this document you will not need a visa to travel
to any of the Member States, assuming we opt into this and either
we opt in or we make an arrangement regarding validity. I would
have thought that once this is an EC document, it is a document
issued by the UK authorities but it is a European Community document,
then it would be valid for the terms of the Directive even though
issued by the UK Government. One could have that spelt out in
the annex, that long-term residence permits issued by the UK are
one of the documents that are recognised.
25. It certainly needs some explanation. I think
people will be very pleased to hear that there is one forthcoming.
A. The proposals are supposed to dovetail. As
this one is written to dovetail with the family reunification
proposal, so it is supposed to dovetail in with the new one that
has just come out on the right to travel, so hopefully they are
coherent, but we will need to check that.
Baroness Gibson of Market Rasen
26. I am particularly interested in how the
rights and procedures outlined in Articles 17 to 24 compare with
those applying to EU citizens. Also, perhaps you could give us
your feeling about whether it would be desirable or possible to
find a way for long-term residents to enjoy rights, such as that
of access to employment, for example, in a second Member State
immediately. Could they take effect immediately? What do you see
as the pros and cons of this effect?
A. Your Ladyship has definitely picked up on
one of the ambiguities in the proposal because, on the one hand,
in terms of the documents that you have to present to get your
residence permit in your second Member State, in Article 17(2)(b)
you have to show evidence of an employment contract or a statement
by the employer that you are hired, which presupposes that you
are entitled to take employment as part of your right of residence
before you arrive. But then you get to Article 24 that says as
soon as you get your residence permit you get your Article 12
rights. How can these be reconciled? It seems to me what is intended
is that the right to work comes with the right to reside, not
with the residence permit. That comes with your long-term residence
permit that you got in your country of origin before you left
but you have to apply for a residence permit in your second Member
State and then your Article 12 rights and all of the other rights
apply, including the right to change employment or whatever. It
is ambiguous because the first one that you get, the Article 1A
right, access to employment and self-employment, you already have
got, so then presumably you are looking at the other ones. Then
it seems rather odd that you arrive in your second Member State
with your residence card, you take up your job immediately under
completely, ghastly, horrible, dreadful conditions, which are
nowhere near anything that nationals of the state get, and the
Member State can twiddle its thumbs for three months while you
are in these horrible conditions, you get your residence permit
and then all of a sudden you have equal treatment rights. That
seems a bit odd. It would seem to me that would be one of those
occasions when the cross-over between the Non-Discrimination Directive,
Race Directive and Framework Directive would cut in to provide
some kind of protection for the first three months.
27. It would be worth probing a little bit more
in this area?
A. Yes. It is not self-evident to me exactly
how this works. It does seem fairly clear that it is intended
that you would have the right to work immediately but then it
is not entirely clear why you get a delay of the other rights
coming in. On the question about how these rights relate to the
rights of Community nationals who are exercising free movement,
they are less generous, not hugely less generous but less generous.
The difference may become more substantial. The Commission has
put forward a proposal on a right of free movement for Community
nationals, I think it is about a month and a half old, that would
consolidate and strengthen substantially the rights of Community
nationals living in the Member States, at which point we will
see a divergence between the two. We have already considered the
family reunion rights, which are substantially different. What
other rights are different? There is a slightly heavier documentation
requirement, not hugely different. There is a support requirement
which might be said to be more difficult than that which applies
to Community nationals going to work in another Member State.
The requirement to have sickness insurance cannot be applied to
nationals of other Member States who are going as workers or as
self-employed. There are a few areas where there are differences
to the detriment of third-country nationals.
Chairman: Thank you.
28. A bit of a technical question, Professor
Guild. We have heard about how a person considered a threat to
public order or domestic security can be refused a long-term residence
permit. How does this differ from the provisions of the Directive
64/221/EC on the co-ordination of special measures concerning
the movement and residence of foreign nationals which are justified
on the grounds of public policy, public security or public health?
Are there any differences?
A. This, I think, is an important question which
will need to be answered and is not yet adequately answered by
the document. Article 7 says that third-country nationals can
be refused status if they are an actual threat to public order
or domestic security. The concept of public order and domestic
security is given a bit of further clarification in Article 13
when we are looking at protection against expulsion. I would assume
that we are talking about a single concept of public order and
domestic security, not one that changes depending on where you
are in the process, although that is possible. If one takes Article
13 as a guidance, what are the grounds to be refused or to lose
your status? The measure must be one in respect of which you take
enforcement action against your own nationals. The criminal convictions
in themselves do not warrant an automatic expulsion decision and
the decision cannot be founded on economic considerations. So
we have three guidance notes about what public order and domestic
security mean. How does that compare then with Community nationals
under Directive 64/221? There we have certainly in Article 3 that
criminal convictions in themselves do not warrant exclusion or
expulsion, also that such a decision cannot be taken on economic
considerations. We have the clarification which the Court of Justice
has given in a number of cases on the meaning of public policy,
public security and public health which limit fairly substantially
the scope for manoeuvre of the Member States when deciding on
expulsion, not excluding the power of Member States to exclude
or expel Community nationals. The use of different words, public
order and domestic security, would indicate that a different test
is being applied. The examples which are given do not clearly
indicate where the difference in content is supposed to lie, so
the question remains open as to how far apart or how close the
two concepts should be. I did not mention the question of public
health. In the proposal for a Directive public health is also
included and limitations on the basis of public health are in
Article 20, so they come into play when you are moving to the
second Member State. There it is fairly similar to the limitation
on public health in 64/221 in the Directive on Community nationals.
Baroness Greengross: Thank you.
29. But we do have mutual recognition of expulsion?
Lord King of West Bromwich
30. With all these procedures in these Articles
is it possible that in practice it could make it difficult for
third-country nationals to exercise the right of free movement
and gain access to the Single Market on equal terms with EU citizens?
A. I think your Lordship has asked one of the
fundamental questions: will we achieve the objective, as the Heads
of Government stated in Tampere, of seeking to align third-country
national rights with Community national rights through this Directive?
There are two points which we need to consider. The first is the
state of origin of the third-country national, so when the third-country
national is applying for the long-term residence permit so that
he or she can go to another Member State, what facilitation is
given or what obstacles are placed in the way of the individual?
The Directive does set out the requirements that the Member States
must fulfil. As we know from experience in the United Kingdom,
under Directive 64/221 Member States are required to issue residence
permits to Community nationals as soon as possible and in any
event within six months, and yet we still have cases every day
where Community nationals have applied for their residence permits
to the IND and it has been six, eight, ten months and they have
not got their residence documents. A question about implementation:
are we going to give a priority to this or not at the national
level? Are we going to comply with the requirements? It would
seem to me very sensible to include, to assist Member States to
comply, a sanction for failure to comply, which we do not have
at the moment, for instance a penalty. If the Member State has
not issued the document within three months of receiving it then
it will have to indemnify the individual or there will be some
nasty penalty which will encourage the national authorities to
give sufficient priority to these applications. The second point
where we run into difficulty is what happens when a third-country
national arrives in the other Member State and applies for the
residence permit there to show that he or she is exercising this
right? The Commission will need to monitor very closely and think
about how to ensure proper implementation so that third-country
nationals who go, for instance, to France with their long-term
residence permit, are able to take up employment immediately,
that employers are informed that these documents have the validity
of a national residence permit for the purposes of employment,
and that in all Member States provisions on sanctions against
employers specify that these are among the permitted documents.
That having been achieved, the individual will need to apply for
the residence permit and will want to see the same kind of sanction
for failure to issue a permit within three months that we would
have at home to encourage the Member State to which the person
has gone to apply the Directive correctly. It would seem to me
probably the most critical issue is that the circulars and regulations
that are issued in the Member States to employers, schools, etc.,
make it clear that this residence permit permits individuals to
take up these rights and then if there is a bit of a delay in
getting the residence permit that is not so important because
the person is beginning to exercise the right immediately.
Chairman: Thank you very much. Lord Wright,
I understand you have a question.
Lord Wright of Richmond
31. I wonder if I could just ask you a hypothetical
question. All the submissions we have seen so far on this subject
argue either implicitly or explicitly that the United Kingdom
should opt into the Directive. If the British Government decided
at the end of the day to opt out, what consideration do you think,
above all, would influence them in wanting to opt out? In other
words, what aspect of the Directive is most difficult for the
A. Your Lordship has asked me indeed a hypothetical
32. It is perhaps not fair to ask you to answer
it but you could have a shot at it.
A. I would expect that the formal reason would
be border controls.
33. Would be?
A. Border controls. Border controls will be
the reason, it would seem to me, that the United Kingdom will
choose to opt out of everything, although it did not prevent them
at all from opting into the Directive on carrier sanctions, which
is in fact part of the Schengen Acquis, which was adopted
two weeks ago. The fact that it was stated specifically to build
on Article 26 of the Schengen Implementing Agreement did not stop
us from opting in. So on some parts of the Schengen Acquis
we are happy to opt in but on others we are not. I think the formal
legal reason will be borders. If I might speculate about the kinds
of concerns that officials in the Immigration and Nationality
Directorate may have. There would seem to me to be two. The appearance
of loss of discretionary power, even though that power in fact
no longer exists, as it has already been circumscribed by the
rules and by the courts, the appearance, the symbolic importance
of discretion may be a factor which carries some weight in the
consideration. I would imagine that the other difficulty which
officials in IND may have is the question of trust of the authorities
of other Member States. The lack of trust in the counterparts
in other Member States makes it quite difficult for officials
here to agree measures which will have any kind of beneficial
effect for the internal market. If I might add as a footnote:
our experience with the Dublin Convention has been particularly
unfortunate in this regard because the decision to try and move
asylum seekers around Europe has brought officials in the INDs,
in the interior ministries of different Member States, into terrible
conflict with one another and it has had the effect of really
destroying a substantial degree of the trust now which had been
built up in previous periods. I think if there is one criticism
above all which I would make at this time of the Dublin Convention
procedure it is exactly that. We have got farther away, we have
less trust now in the officials of other Member States, in their
practices, in how they fulfil their duties, than we had before
we engaged in the Dublin Convention.
Lord Wright of Richmond: Thank you very much.
Chairman: Professor Guild, one more question.
Baroness Gibson of Market Rasen
34. It is actually in relation to something
in your submission to us which I find quite worrying. It is about
the lost status and expulsion where you say when someone is coming
back into the country, possibly they have been a student and are
coming back, an immigration officer may ask them what the purpose
of their arrival is and they might, as you have put it, incautiously
suggest that it is a visit to family or relatives, at which point
the immigration official may quite properly under the Immigration
Rule refuse to permit the continuation of long residence status.
It seems to me that people may well say exactly what you have
outlined here and that will be quite a worrying aspect of the
whole issue of the second state. Would you think that there would
be guidance given to people? What is normal under circumstances
like this because I think you have identified a really important
A. I would point out that this is very much
a UK problem.
A. When we did our study on long residence status
in other Member States everyone we spoke to found this very peculiar,
that you have a residence document which is valid and if it is
going to become invalid that does not happen at the border, that
happens instead in the state. You pass through the state, you
go to renew it and then you get into the squabbling, or it has
already expired when you are abroad and you go to the consulate
to renew it and you get into squabbling over whether it should
be renewed but you do not do it at the border. Everyone else considered
this a not particularly helpful way to go about dealing with residence
status. This problem arises with unfortunate regularity, at least
once every two or three months I hear about another case of someone
coming back as a returning resident with Indefinite Leave to Remain
and getting into difficulties at the border with the immigration
official about whether or not he or she have lost their status.
The move towards granting leave to enter and recognising leave
to enter abroad before people come to the UK and immigration officials
limiting their duty to checking that the visa has been obtained
and leave has already been granted by the embassy in New Delhi
or wherever should limit the number of times that this arises.
The IND is in the process of putting into effect a mechanism of
transferring the border abroad. The regulations are in place but
only the provisions in respect of visas have been implemented.
For non-visa nationals this has not yet been done but we can expect
it to come soon. When it does, it will be increasingly less likely
that people will run into difficulty at the border. The problem
will then arise within the state.
Chairman: Professor Guild, thank you very much
indeed for coming and talking to us and helping us with this very
complex but vitally important area of our work. In particular
I would like to thank you for your very frank but sensitive remarks
in response to Lord Wright's question. I found it very interesting
and very helpful because tomorrow we will have the Home Office
in front of us so we will see what they have to say. Once again,
on behalf of the Committee, can I thank you for your tremendous
help to this Committee both in the past and for today. Thank you