Select Committee on European Union Forty-Ninth Report


Letter from the Chairman to The Lord Filkin CBE, Under-Secretary of State, Home Office

  Sub-Committee F (Social Affairs, Education and Home Affairs) considered Angela Eagle's response to my letter of 11 April (her letters of 20 and 27 May) about the above proposal at its meeting on 19 June. The Committee was disappointed that the Government has decided not to participate in the Directive and invites it to reconsider its decision. Although the Committee identified a number of weaknesses in the Directive when it previously considered it, it regards it as a welcome first step both towards enhancing law enforcement efficiency in the fight against human trafficking and smuggling, and towards providing a degree of protection for the victims of these, often cruel, offences.

  The Committee found the justification for not opting in unconvincing. While it accepts that the Directive is an immigration measure, it is clearly also designed to protect victims of trafficking who co-operate with the authorities as witnesses (as well as facilitating the prosecution of traffickers). The extent of disruption that the measure might cause to UK immigration controls in unclear, and not further substantiated in Ms Eagle's letter. It would be surprising if such disruption were caused by the automatic reflection period (limited to 30 days) and not by the six month residence permit per se. We would be grateful if you could provide us with a detailed analysis of the expected detrimental effects of the Directive on domestic immigration controls.

  The Committee was not persuaded by the Government's justification of its decision on the basis of the perceived ineffectiveness of the measure. If this is the main reason for not participating, we would expect the Government to try to raise the standards of protection by negotiating with a view to opting into the proposal. It is difficult to see how the Government's concerns will be addressed in the negotiations in view of its weakened position as a result of its decision not to opt in.

20 June 2002

Letter from Margaret Hodge MBE MP, Minister of State for Lifelong Learning and Higher Education

  Following a meeting of the Sub-Committee F (Sociate Affairs, Education and Home Affairs) on 15 May 2002, at which the above proposal was considered, you asked for comments on the following matters.

Free movement of sevices

  The Committee welcomes the flexible regime envisaged for service providers but notes that the provision of services is somewhat artificially distinguished from establishment through the use of a 16 week per year threshold. Is the Government satisfied with the use of this criterion? Articule 5(2), on the other hand, does not preclude assessment on a case-to-case basis: would this allow periodic activities exceeding the 16 week threshold to be classified as services in certain circumstances?

  Although time is a criterion used in existing case law, no specific period is mentioned. The 16 weeks' threshold seems arbitrary thereof. However, the European Commission has indicated that this criterion is open for discussion. We are currently consulting with UK regulatory authorities and professional bodies on the practicalities and efficacy of the 16 weeks' threshold, before we reach a formal position.

  The 16 weeks' threshold does not preclude an assessment on a case-by-case basis. This will accord with criteria in ECJ case law, such as duration of the service provision, its freguency, regularity and continuity. Therefore, conditions of full establishment might exist due to activity of less than 16 weeks duration and a provision of service might last more than 16 weeks.

  In your Explanatory Memorandum, you refer to the need to strike the right balance between free movement and public health and safety protection. We would welcome any concrete examples of how public health and safety might be compromised by the current draft and any views on how these potential challenges might be addressed.

  Allowing EU citizens to provide services for 16 weeks without formal registration in the UK would make it easier for visiting EU clinical teams to provide short-term services in the NHS. This does have some attractions. But, the risk to patient safety is real—a doctor, nurse or other health professional without a valid home state title can do a lot of damage in 16 weeks. The provision might also have an impact in the area of consumer protection. An example would be the fitting of gas appliances. In the UK it is a criminal offence for an individual to fit appliances without being registered with the regulatory authority (CORGI). The actions of an unregistered gas fitter could potentially cause explosion resulting in a numberof fatalities. We think that safeguards are needed and we propose to take these up during negotiations. We are considering the following options:

    —  to insist that the individual notifies the regulatory authority in the host Member State, as well as the designated contact point in their home Member State, in advance of providing services; and

    —  to insist that all applications are considered on a case-by-case basis, in advance of the individual providing the services;

thus giving the regulatory authority in the host Member State the opportunity to confirm the individual's credentials (for example that medics have not been struck off their home register).

  In either case, we will probably have to accept, in the spirit of the provision, that decisions are taken much more speedily than the three months allowed in cases of establishment.

  The European Commission has already indicated that public health and safety protection is a sensitive area and that time will be set aside for discussion in Council Working Group. We will keep you informed of progress during negotiations.

Freedom of establishment—common platforms

  The proposal innovates in establishing a flexible mechanism of co-operation between the Commission and the professional associations in Member States in putting forward "common platforms", setting out criteria which, if fulfilled by the applicant's qualifications, would enable the requirement for compensatory measures by the host Member State to be waived. It is however unclear how this assessment is going to be made: will it be done by the Commisssion itself, the Committee referred to in Article 54, or the authorities of the host Member State?

  We too are unclear about how common platforms will be assessed. Article 15(1) suggests the Commission will assess common platforms on notification by professional associations, apparently with no input from Member States on their regulatory authorities. However, a common platform can produce automatic conditions of recognition only on the basis of a decision in the Committee on the recognition of professional qualifications, as referred to in Article 54.

  We will be seeking clarification from the Commission of their intentions under the proposal. We are concerned to ensure that the UK and its regulatory authorities have the opportunity to contribute to the determination of common platforms. We will keep you informed of progress during negotiations.

Freedom of establishment—Knowledge of languages

  The Committee welcomes the incorporation of ECJ case-law in Article 49 of the draft Directive, requiring that knowledge of the language of the host Member State must be proportionate to the practice of the beneficiaries' profession. We further note that, where appropriate, it is for the host Member State to ensure that the applicant can acquire the necessary knowlege of the language. What is the cost, if any, of such obligation to the Member States involved? Is the Government prepared to accept this provision as it currently stands?

  The current sectoral directives make provision that persons should acquire the linguistic knowledge necessary to work in the profession in the host country. Whilst it is obviously in the interests of the public and the potential employer as well as the professional that she/he speaks the local language well enough to do the job safely, this provision has not been interpreted to mean that the UK's authorities should provide, or pay for, any tuition. We expect the same interpretation to apply under the new proposal. However, EU nationals are eligible, under the Learning and Skills Council's criteria, for funded places at colleges.

The Committee on the recognition of professional qualifications

  The Directive states that this Committee is there "to assist" the Commisssion and the Commission's EM adds that the Committee "can also be seized of all questions concerning the work of the Directive" (p 15). But its exact tasks are far from clear. You will not in your Explanatory Memorandum that the full implications of this development will need to be discussed in detail. We would welcome any further information on the role, powers and functions of this body.

  The functions of the Committee on the recognition of professional qualifications will be limited by Council Decision 1999/468 of 28 June 1999, which lays down the procedures for the exercise of implementing powers conferred on the Commission. The Committee will be responsible for techical up-dating of the Annexes to the proposed directive; the consideration of the appropriateness of requests from professional associations for common platforms; and for consideration of a Member State's request to derogate from a particular provision of the directive. The Commissions, in conjuction with the professional bodies, are considering how information, comments and views can feed into this committee process. We will keep you informed of the exact roles and procedures of the Committee, as they are articulated during negotiations.

3 July 2002

Letter from Lord Filkin, Parliamentary Under Secretary of State to the Chairman

  Thank you for your letter of 20 June reporting the Committee's further consideration of this proposed Directive.

  I note the Committee's disappointment at our decision not to participate in the proposed Directive at this stage. As you will now, following the publication of a draft Directive, the United Kingdom has three months to notify the Presidency if it wishes to opt in to the measure. There is no need to notify them formally if we do not wish to take part. Where we choose not to opt in to a measure, we have a further opportunity to apply to participate once the measure has been finalised.

  In her letter of 27 May, Angela Eagle mentioned that we would be following the negotiations closely, and would seek to opt in at this later point if our objections to the present text can be overcome. However, the deadline for opting in having passed, it is not possible for us to opt in at this stage. As you are also aware, having opted in, it is not possible to opt out if we have concerns about the final text, and our concerns about the present version were such that we concluded it was preferable not to commit ourselves at this point.

  The Committee also sought clarification of the exact nature of the Government's concerns about the impact of the proposed measure. Our concerns arise mainly from the very wide definition of "victim" employed in the draft Directive. As Article 1 explains, the purpose of the Directive is to introduce a residence permit for third country nationals who are victims of offences constituted either by the action to facilitate illegal immigration or by trafficking in human beings, and who co-operate with the competent authorities. Article 2 defines "offences of facilitating illegal immigration" as the offences defined in Articles 1 and 2 of the Council Directive on defining the facilitation of unauthorised entry, transit and stay. This means that any adult illegal entrant whose entry had been facilitated by another person would be a victim for the purposes of the proposed Directive on short-term residence permits, and would therefore be entitled to the automatic 30 day "reflection period". This would apply even if the illegal entrant had no intention of providing any information about the facilitators—something which would only become apparent at the end of the 30 days—or had no useful information, which again could only be assessed at a later stage.

  We estimate that around 70-75 per cent of those entering the United Kingdom Illegally have their entry facilitated by another person. If it were to their advantage to claim to have had such assistance, it is likely that even more would claim to have been helped. However, even taking the 70-75 per cent figure would mean that in 2000, more than 30,000 people would have met the definition of a victim for the purposes of the draft Directive.

  Unlike the proposed residence permit, the reflection period applies automatically. There is no assessment of the individual's potential usefulness as a witness or source of information or of their willingness to co-operate. As soon as it became clear that an individual qualified as a victim, any action to remove them would have to be suspended for the length of the reflection period.

  It is clear why the reflection period has to operate in this way. However, although it is difficult to estimate the number of people who might eventually qualify for a short-term permit under the terms of the proposed Directive, it seems equally clear that the impact of allowing the majority of illegal entrants an automatic 30-day reflection period would far outweigh the likely effect of granting six months leave to remain to those who are subsequently found to qualify for the proposed permit. The fact that the reflection period does not create any entitlement to residence under the proposed Directive does not affect this position. The fact that the Immigration Service would be unable to take any action against the illegal entrant for 30 days is disruption enough.

  In her letter of 27 May, Angela Eagle mentioned that the Government shared the doubts expressed by the Committee about the extent to which the possibility of being given a short-term residence permit would, of itself, be a sufficient incentive to persuade victims to bring themselves to notice if they did not think they might qualify for leave to remain on other, less uncertain, grounds. However, our primary concern was the effect of the automatic reflection period on the ability of the Immigration Service to deal immediately with those victims caught trying to enter the United Kingdom illegally. It was for this reason that we chose not to opt in.

  I hope this clarification will assist the Committee.

12 July 2002

Letter from the Chairman to the Lord Filkin

  Thank you for your letter of 12 July explaining in more detail the reasons for the Government's decision not to opt in to this measure. Sub-Committee F considered your letter at its meeting on 24 July.

  The Committee was grateful for this as it provided a clearer explanation of the Government's objections to this measure than it had previously received. For the reasons I have already given, the Committee would still have preferred the Government to opt in to the measure and negotiate to secure amendments to meet its concerns, but, as you have explained, the opportunity to do so has now passed. The Committee has accordingly cleared the document from scrutiny.

25 July 2002

previous page contents next page

House of Lords home page Parliament home page House of Commons home page search page enquiries index

© Parliamentary copyright 2003