Select Committee on European Union Fifth Report


THE LEGAL STATUS OF LONG-TERM RESIDENT THIRD-COUNTRY NATIONALS

PART 3:OPINIONS AND CONCLUSIONS OF THE COMMITTEE

THE COMMISSION'S STRATEGY FOR FULFILLING THE TAMPERE MANDATE

36.  The Commission states, in its "scoreboard" on progress towards establishing an area of "freedom, security and justice", that all its proposals on the definition of an asylum and immigration policy, in line with the principles agreed at Tampere, will be presented by the summer of 2001. We welcome this sense of urgency, and hope that it will be matched by the Council.

37.  One consequence of the Commission's strategy is that each proposal, including the present proposal for a Directive concerning the legal status of long-term resident third country nationals in the EU, is just one piece in a jigsaw. A right for third-country nationals to reside throughout the Community would be meaningless if they did not also enjoy the right to travel freely—the present proposal, however, makes no mention of travel or admission. We understand that this issue is dealt with in another recently published instrument. However, this is just one of the apparent omissions in the present text, and only when all the proposals listed in the "scoreboard" are published will Member States, Parliaments or NGOs be able to assess the overall coherence of the Commission's strategy.

38.   The Commission's piecemeal approach may have been unavoidable. However, it has also been confusing: the "scoreboard", while listing proposals and their likely time of publication, provides no guidance on how they fit together. The publication of the proposals in no logical sequence, and with very limited explanation as to their inter-relationships, has proved unhelpful. It has not made for transparency or lucidity, nor has it facilitated the work of this Committee.

39.  Furthermore, the Commission is heavily reliant on the Council not to undermine the coherence of its strategy. The protracted and confidential working group negotiations on the family reunification Directive, yet to be agreed after more than eighteen months, do not bode well. The failure to publish a revised text of that Directive (other than that incorporating the amendments suggested by the European Parliament, which are of limited relevance under Title IV procedures) means that it is almost impossible for national Parliaments or NGOs to keep track of the relationships between proposals.

40.  The Commission's strategy creates particular difficulty for the United Kingdom and Ireland, which are obliged to consider whether or not to opt into proposals on a case-by-case basis. Opting into one proposal, when it dovetails with so many others, would not be feasible. It appears that the Commission has been less than sympathetic towards the United Kingdom's position. However, the Government, for their part, appear to be rather out of touch—it was notable that Professor Guild was able to explain much more clearly than the Government how the apparent lacunae in the current Directive would be filled by other proposals[27]. We fear that these may be symptoms of a breakdown in communication between the Commission and the United Kingdom Government. This should be rectified at all costs.

SUBJECT-MATTER

41.  We support in principle the attempt to grant a minimum level of rights across the Member States for long-term resident third-country nationals. In most Member States third-country nationals will ultimately be able to acquire citizenship, and thus enjoy in full the rights attaching to EU citizenship. However, the terms on which national citizenship is granted remain a matter exclusively for individual Member States, and there is therefore no uniformity across the EU. In addition, many long-term resident third-country nationals may for one reason or another not wish to acquire citizenship of their host country—for example, because they might be deprived of their existing citizenship. Professor Guild suggested that this could in turn affect other rights such as rights to exercise economic activities (Q 1, pp 3-4). In these circumstances it is right that the Community should act to implement Article 63(3) of the EC Treaty, and set out Community-wide standards for the acquisition of long-term resident status, and a set of uniform rights attaching to this status.

42.  The Commission asserts that the Directive is intended "to approximate national legislation and practice regarding the grant of long-term resident status to third-country nationals residing legally". However, this is not strictly accurate, as Article 14 of the Directive specifically permits more generous national arrangements for granting long-term resident status to continue unchanged. The Commission appears not to have fully thought through the relationship between the proposed status of "long-term resident—EC" (Article 9) and the national status referred to in Article 14. In fact, the claim in Article 1 that the Directive determines "the terms for conferring and withdrawing long-term resident status" might more properly read, "the terms for conferring and withdrawing EC long-term resident status".

43.  The approximation of national legislation will in practice apply principally to the very few Member States who currently grant long-term resident status on terms less generous than those set out in the Directive. In implementing the Directive they will have to amend their national arrangements to the extent necessary to give effect to the Directive's rules. Member States with closely comparable arrangements may decide to adopt the EC rules. On the other hand, Member States with more generous arrangements, such as Finland or Sweden, will be permitted by Article 14 to retain them. However, if Member States take advantage of this right, then the Directive as drafted appears to be a recipe for confusion. The relationship between the two types of residence permit—national and EC—does not appear to have been fully addressed. Article 14 states that long-term resident third-country nationals enjoying the more generous national arrangements would not enjoy the Community-wide right of residence in the other Member States. On the other hand, Article 12 sets out a number of rights attached to long-term resident status in internal situations—for example, the right of access to employment. It is unclear whether third-country nationals benefiting from the more generous arrangements permitted under Article 14 would enjoy the protection of the Directive in laying claim to such internal rights. Furthermore, by taking advantage of some of the rights granted them by the Member State concerned, in particular the right to absent themselves from its territory for more than six months, they might unwittingly disqualify themselves from being granted the EC status at the end of five years.

44.  Furthermore, while Article 14 would allow Member States to offer long-term resident status on more generous terms than those set out in the Directive, there is no "non-regression" clause. Thus Member States such as Finland or Sweden will have a choice: continue to grant long-term resident status as at present, but overlay this with a new procedure for granting EC long-term resident status; or abandon existing arrangements in favour of those in the Directive. The first option might create a significant administrative and financial burden, and Member States may well be tempted to follow the second option. If this happens, the Directive may contribute to a significant reduction in the rights of third-country nationals in those countries. We cannot believe this to be the Commission's intention.

45.  In our view the only way to overcome these problems is for the Member States to move towards the mutual recognition of national decisions on the granting of long-term resident status to third-country nationals. The Directive would merely set out minimum standards. Such a proposal would be politically sensitive—indeed, it may not at present be feasible to achieve full mutual recognition. However, on 28 May the Member States adopted a Directive allowing for the mutual recognition of decisions on the expulsion of third country nationals. The principle of mutual recognition in immigration matters has therefore been established. At the very least the Council should consider the possibility of qualified mutual recognition—for example, those holding the national equivalent of long-term resident status might, after five years' total residence during which they had observed national rules, have an automatic right to an EC long-term resident's permit, without having separately to satisfy the criteria set out in Chapter II of the Directive. Such a provision would have to be accompanied by a "non-regression" clause—otherwise there would clearly be a temptation for Member States to "level down" to the less demanding standards set out in the Directive. Only by moving towards mutual recognition in this way can the Member States hope to achieve streamlined, transparent procedures for granting Community-wide long-term resident status.

SCOPE

46.  We have heard various concerns about the scope of the proposed Directive, in particular about the exclusion of those enjoying temporary protection or subsidiary protection, and students. We understand, however, that these exclusions must be taken in the broader context of the Community's strategy to create an "area of freedom, security and justice". The exclusion of those enjoying temporary protection draws on the Commission's proposal for a Directive on temporary protection, which sets a two-year maximum duration for the status. At present there is no Community definition of subsidiary protection, and we accept that including those enjoying such protection within the scope of the present Directive might complicate its negotiation. But we look forward to the Commission's forthcoming proposal concerning subsidiary protection, and trust that it will indeed extend access to long-term status to this category of third-country nationals. However, it is unfortunate that the Commission has published its proposals in this order—it would have made more sense to have defined the various categories of third-country national exhaustively before moving on to granting them rights of long-term residence.

47.  On the issue of students, we recognise that peculiarities already exist—for example, the possibility that children sent to boarding school will be entitled to acquire long-term resident status after ten years. Nevertheless, we support the principle of the ten-year "long-stop", which is provided for by the Council of Europe Convention on Establishment. By specifying that time spent as a student will count as half, the Directive would effectively preserve this status quo. However, we are concerned that those third-country nationals who decide to enrol on courses (such as MBAs) after some years' lawful residence may find that their eligibility for long-term resident status is deferred. This defect should be remedied.

THE NUMBERS INVOLVED

48.  It is a matter of grave concern that we know so little about the numbers of third-country nationals who would be affected by the Directive[28]. It seems possible that there may be as many as 10 million long-term resident third-country nationals across the EU, and perhaps as many as a million in the United Kingdom alone. These people make a major contribution to the European economy. However, if they were to take advantage of the right of free movement at the same rate as EU nationals—and we have no reason to believe otherwise—it is likely that the total mobility across the EU of long-term resident third-country nationals would be no more than a quarter of a million. As we said in our Report on A Community Immigration Policy, the fears over extending free movement rights to third-country nationals are overstated[29].

THE RIGHTS ATTACHING TO LONG-TERM RESIDENT STATUS

49.  The rights set out in Article 12 of the proposed Directive are broad. However, they do not match up wholly to those rights enjoyed by EU citizens. As the Immigration Law Practitioners' Association pointed out[30], the Commission has attempted to reach a compromise likely to be acceptable to the Member States. On balance it is a fair compromise, though there are points where it would be desirable to work towards greater consistency with existing instruments defining the rights of EU citizens who have exercised their right of free movement.

50.  We assume, with Professor Guild[31], that the proposed Directive will dovetail with the Article 13 Directives. It is regrettable that the Commission did not include some explanation of how this will work in practice, particularly as those Directives specifically exclude decisions on admission and immigration status. Nor is the position of long-term residents in a second Member State, before they have acquired a residence permit, satisfactorily explained in the Directive. Indeed, the text as it stands appears to be self-contradictory so far as the right to employment in the second Member State is concerned[32]. This must be clarified. One of the objectives of the proposal is to help long-term residents to participate fully in the Single Market. Any confusion surrounding their status during the initial period when they exercise their right of free movement risks undermining that objective.

THE POSITION OF THE UNITED KINGDOM

51.  The Government's policy is clear and has been often stated: they are opposed to the extension of free movement rights to third-country nationals. It might have been possible for the United Kingdom to participate in the adoption of a Directive defining the status of long-term resident third-country nationals in internal situations. However, it is impossible to reconcile existing Government policy with participation in the present proposal, which also covers free movement rights. There was thus no realistic prospect that the United Kingdom would opt to participate in the Directive. Nevertheless, the Government were unable formally to reach their decision not to opt in before giving evidence to this Committee, nor even before the Minister answered an oral question in the House on the Government's response to the Directive on 23 July, just five days before the deadline of 28 July. We were finally informed of the Government's decision in a letter from the Minister to the Chairman of the Committee, dated 7 August[33].

52.  The fundamental principle underlying Government policy is the preservation of the United Kingdom's independent frontier controls. This principle is written into the Frontiers Protocol annexed to the EC Treaty and TEU. The Government, in their Response to our Report on A Community Immigration Policy, drew attention to their wish to "maximise the important social and economic contribution that managed migration can make". In contrast, the Government's evidence to this inquiry makes it clear that when a measure is "so fundamental in cutting across … frontier controls" then social or economic arguments, including the many potential benefits to British businesses described by one witness to this inquiry[34], will take second place.

53.  The Government have rejected the Committee's suggestion that by not participating fully in the development of Community immigration policy their influence upon it will be weakened. However, the present proposal demonstrates just how little influence the United Kingdom in fact has. The Government themselves have conceded that in certain important respects it "builds on Schengen arrangements" on free movement—to which the United Kingdom is not party. So far as the United Kingdom and Ireland are concerned we have already commented on some of its major lacunae—areas where it manifestly fails to take account of their independent frontier control and admission policies. In fact it seems to have been drafted on the assumption that the United Kingdom would not participate. This is partly because of the way the Commission's various proposals dovetail—the possibility of opting into one individual proposal, when it relies on cross-references to so may other proposals, is remote. It therefore comes as no surprise, however regrettable it is, that in bilateral discussions the Commission, by the Government's own admission, took little account of the United Kingdom's views.

54.  Despite the Government's determination to retain control over immigration policy, the United Kingdom has opted into the Directive on the mutual recognition of expulsion decisions, which establishes a procedure whereby the United Kingdom may enforce immigration decisions reached by other Member States. We were told[35] that this had no bearing on the present proposal, in that the Directive on mutual recognition of expulsion decisions imposed no obligation on the United Kingdom: it did not "direct" us to do anything. This is not a plausible argument—if it were it would render the entire Directive nugatory. The procedure for mutual recognition can only have been agreed on the assumption that it would be applied. The Government's decision to opt in to that Directive, but not the present proposal, appears to confirm the impression that they are more concerned with "control" measures than measures that might give third-country nationals enhanced rights.

55.  Nor does the Government's procedure for reaching its decision not to opt in appear to have been particularly thorough. The "consultation" process seems to have been purely inter-departmental—no effort was made, for instance, to consult employer organisations, who might be thought to have an interest in facilitating free movement for third-country national workers. It is not enough for the Government to wait to be lobbied by such organisations, or to rely on the parliamentary Scrutiny Committees to seek out their views.

56.  The development of a Community immigration policy is now proceeding rapidly. Since publishing its proposal for a Directive concerning the legal status of long-term resident third-country nationals in the spring the Commission has published several more major proposals in the fields of immigration policy and free movement. It would be very unfortunate were the United Kingdom not to be able to contribute fully to the debate on these developments. But for this to happen, more serious commitment will have to be shown on all sides. The Commission will have to show itself more willing to take account of the views of the United Kingdom and Ireland, and draft proposals so that it is at least feasible for them to participate. For their part the Government, regardless of the "opt-out", will have to keep in better touch with developments at Community level, contributing more actively and consulting more widely, even where they ultimately decide not to participate in a proposal. The Government's policy is clear and unambiguous—but it carries with it the risk of sidelining the United Kingdom in this important area of Community activity.

Recommendation

57.  The Commission's proposal for a Directive concerning the status of third-country nationals who are long-term residents is a major development in Community immigration policy. Despite the Government's decision not to participate in the adoption of the proposal, it raises important issues for the United Kingdom. We make this Report to the House for information.


27   See paragraph 27, above. Back

28   See paragraph 21, above. Back

29   A Community Immigration Policy, paragraph 165. Back

30   See paragraph 24, above. Back

31   See paragraph 23, above. Back

32   See paragraph 28, above. Back

33   Reprinted in Appendix 4. Back

34   The Immigration Law Practitioners' Association-see their evidence p 35. Back

35   See Questions 63-64. Back


 
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