Select Committee on European Union Fifth Report


6 November 2001

By the Select Committee appointed to consider European Union documents and other matters relating to the European Union.


8237/01Proposal for a Council Directive concerning the status of third-country nationals who are long-term residents


1.  The Commission's "Proposal for a Council Directive concerning the status of third-country nationals[1] who are long-term residents" has a two-pronged purpose. In the words of the Commission's commentary on Article 1, the first purpose is "to approximate national legislation and practice regarding the grant of long-term resident status to third-country nationals residing legally". This is intended to "enable all third-country nationals to enjoy long-term status on equivalent terms in all the Member States". The second purpose is "to … determine the conditions in which third-country nationals who are long-term residents within the meaning of the Directive may reside in a Union State other than the one which first granted them the status".

2.  These two purposes reflect the two legal bases for the proposal, Articles 63(3) and 63(4) of the Treaty establishing the European Community ("TEC"). Both these provisions derive from the Treaty of Amsterdam, signed in June 1997, which called on the Council to adopt measures on various aspects of immigration policy. These are to include measures on "conditions of entry and residence, and standards on procedures for the issue by Member States of long term visas and residence permits" (Article 63(3)(a)), and "measures defining the rights and conditions under which nationals of third countries who are legally resident in a Member State may reside in other Member States" (Article 63(4)).

3.  The establishment of Community competence in these areas at Amsterdam has since been reinforced by political commitments made by the European Council, meeting at Tampere on 15 and 16 October 1999. Member States agreed that "the legal status of third country nationals should be approximated to that of Member States' nationals". They also agreed that "a person, who has resided legally in a Member State for a period of time to be determined and who holds a long-term residence permit, should be granted in that Member State a set of uniform rights which are as near as possible to those enjoyed by EU citizens"[2]. However, the European Council did not specifically endorse the objective implied by Article 63(4) TEC, that such long-term residents should enjoy the right to reside in other Member States.

4.  Despite the reticence of the European Council, the Commission, when publishing its proposal for a Directive on family reunification in December 1999, stated its intention to "tackle all aspects of entry and residence of third-country nationals in turn", and in particular to "look into the legal position of third-country nationals holding a long-term residence permit, and into the application of Article 63(4)"[3]. The Commission requested a group of academics at the University of Nijmegen to undertake a study into the legal position of long-term resident third-country nationals across the Member States, the results of which were published in April 2000[4]. It also took account of related developments, including the adoption by the Committee of Ministers of the Council of Europe of a Recommendation concerning the security of residence of long-term migrants[5]. The Commission's proposal for a Directive concerning the status of third-country nationals who are long-term residents was adopted on 13 March 2001, though it was not published until the end of April.

5.  The present inquiry was undertaken by Sub-Committee F (Social Affairs, Education and Home Affairs), under the Chairmanship of Baroness Harris of Richmond. The Members are listed in Appendix 1. At the end of the 2000-01 Session Sub-Committee F had concluded an inquiry into the Commission's Communication on a Community Immigration Policy[6]. Our Report, examining the many issues of policy and principle raised in this Communication, was published on 25 April[7] and debated on 23 July[8]. Readers who are interested in a fuller account of the development of Community immigration policy, and of the background to the present proposal, should refer to that Report. It not only expresses the prevailing view of the Committee concerning Community immigration policy, but also reveals the issues on which a minority within Sub-Committee F dissented from that prevailing view[9].

6.  Our intention in the present inquiry was not to revisit the controversial issues explored in our earlier Report, in particular the desirability or otherwise of a Community immigration policy. However, in the course of that inquiry questions were raised concerning the legal status of long-term resident third-country nationals, and in particular whether or not they should enjoy the right of free movement within the Single Market. The Sub-Committee therefore decided that it would be appropriate to look at the present proposal, which would give long-term residents such rights, in more detail. In addition, it wished to examine the way in which the Government reached their decision on whether or not to exercise their right to opt in or out of a measure brought forward under Title IV of the EC Treaty[10]. The Sub-Committee also invited witnesses to consider whether the Commission had approached the question of free movement for third-country nationals in the right way. Written evidence was received from a number of NGOs (Advice on Individual Rights in Europe, the Immigration Law Practitioners' Association, the Joint Council for the Welfare of Immigrants and Statewatch), and oral evidence was taken on 17 July from Professor Elspeth Guild of the University of Nijmegen and Partner in Kingsley Napley Solicitors, and on the following day from the Home Office. Additional written evidence was submitted by both Professor Guild and the Home Office. We express our thanks to all these witnesses for helping us in our inquiry. All the evidence is printed with this Report, and a full list of witnesses appears in Appendix 2. In addition, the text of the proposed Directive itself is reprinted in Appendix 3.

1   In the words of Article 2 of the Directive, a third-country national "means any person who is not a citizen of the Union within the meaning of Article 17(1) of the Treaty". Article 17(1) of the EC Treaty states "Citizenship of the Union is hereby established. Every person holding the nationality of a Member State shall be a citizen of the Union. Citizenship of the Union shall complement and not replace national citizenship". Back

2   Presidency Conclusions, paragraph 21. Back

3   Proposal of 1 December 1999 for a Council Directive on the right to family reunification (COM(1999) 638 final), paragraph 1.5. Back

4   Kees Groenendijk, Elspeth Guild, Robin Barzilay, The legal status of third country nationals who are long-term residents in a Member State of the European Union (Nijmegen, Centre for Migration Law, 2000). Back

5   Recommendation Rec(2000)15 of the Committee of Ministers to member states concerning the security of residence of long-term migrants, adopted 13 September 2000. Back

6   Communication of 22 November 2000 from the Commission to the Council and the European Parliament on a Community Immigration Policy (11529/00, COM(2000) 757 final). Back

7   A Community Immigration Policy (13th Report, Session 2000-01, HL Paper 64). Back

8   See HL Deb cols. 1705-48. Back

9   See A Community Immigration Policy, Appendix 1. Back

10   Title IV of the EC Treaty, introduced by the Amsterdam Treaty, covers "Visas, asylum, immigration and other policies related to free movement of persons". The Protocol on the position of the United Kingdom and Ireland was at the same time annexed to the EC Treaty and the Treaty on European Union. According to the Protocol, the United Kingdom and Ireland are not bound by any measure brought forward under Title IV; however, they may notify the Presidency, within three months of the presentation of a proposal to the Council, of their intention to participate in its negotiation and adoption. Back

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