Select Committee on European Union Minutes of Evidence


Examination of Witness (Questions 20 - 35)

TUESDAY 17 JULY 2001

PROFESSOR ELSPETH GUILD

  20. No.

  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 recognised.

  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 card.

  22. Right.

  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 right—let me just check on this to make sure I am getting it right—of 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 indeed.

Chairman

  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.

Baroness Greengross

  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.

Chairman

  29. But we do have mutual recognition of expulsion?

  A. Yes.

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 British Government?

  A. Your Lordship has asked me indeed a hypothetical question.

  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 problem here?

  A. I would point out that this is very much a UK problem.

  35. Yes.

  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 very much.





 
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