FAMILY REUNIFICATION (8628/02)
Letter from the Chairman to the Lord Filkin,
CBE, Under-Secretary of State, Home Office
Sub-Committee F (Social Affairs, Education and
Home Affairs) of the European Union Committee considered this
draft Directive at its meeting on 3 July. (I have delayed sending
this letter until the Select Committee had considered the draft
report by Sub-Committee E referred to below.)
We noted that it is a further compromise proposal,
which presents little difficulty for the UK (which nevertheless
has not yet decided whether to opt in to it). The Sub-Committee
has no specific comments on the changes from the previous proposal,
but there are two broader issues on which it would like to comment.
First we are concerned about the omission from
the proposal of those with subsidiary protection status. Refugees
are covered in the Directive and have the right to be joined immediately
by their spouses and dependent children, but those with subsidiary
protection have not.
Sub-Committee E (Law and Institutions) of the
European Union Select Committee considered this matter in its
recent inquiry into the Refugee Qualification Directive. We saw
no justification for the distinction between refugees and those
with subsidiary protection in this respect, and Sub-Committee
F strongly endorses this view. We would be grateful for your comments
on this point.
Secondly, the Sub-Committee is pleased to note
that the Government is considering whether to participate in this
proposal. It appears that it would present little difficulty for
the UK, and we very much hope that the Government will consider
with a genuinely fresh mind the case for opting in. To date the
Government has opted in to all the enforcement measures but none
of the more positive immigration measures, which is hardly consistent
with its but none of the more positive immigration measures, which
is hardly consistent with its support for a common immigration
and asylum policy.
We will hold the proposal under scrutiny pending
your observations on these two points.
22 July 2002
Letter from Lord Filkin, Parliamentary
Under-Secretary of State to the Chairman
Thank you for your letter of 22 July, requesting
further information and advising that the document has been held
You expressed concern about the omission of
those with subsidiary protection from the proposal and asked for
comments on this issue.
As you will be aware, the European Commission
had stated that, whilst it considers that persons in this category
must have the right to family reunification and need protection,
it recognises that the absence of a harmonised concept of subsidiary
protection at Community level constitutes an obstacle to their
inclusion in the proposed directive. The Commission had also previously
indicated its intention to present a separate proposal on subsidiary
protection with provisions for family reunification.
Provision for the minimum rights and benefits
to be enjoyed by the beneficiaries of subsidiary protection status
have now been incorporated into the Refugee Qualification Directive.
Conditions for granting subsidiary protection to accompanying
family members are also included within the scope of this Directive.
The Government welcomes this proposal and considers that the draft
Directive adequately sets out provision for the family reunification
of those with subsidiary protection. These provisions are in line
with the UK's current procedure to grant permission to remain
to a family member who is already present in the UK.
The Government's Explanatory Memorandum indicated
that the UK had another period of three months from formal publication
of the proposal in which to decide whether to opt into the draft
Directive. However, since the EM was submitted to the Scrutiny
Committees, legal advice has confirmed that, at this stage, the
UK does not have a further opportunity to opt into the proposal.
31 July 2002
Letter from the Chairman to Lord Filkin
Thank you for your letter of 31 July, which
Sub-Committee F (Social Affairs, Education and Home Affairs) considered
at its meeting on 23 October.
The Committee was disappointed that the Government
was not prepared to press for the inclusion of those with subsidiary
protection in the Directive. The fact that the Commission is not
in favour of doing so is hardly a conclusive argument.
The Committee noted that the United Kingdom
no longer has an opportunity to opt in to the proposal. We were
concerned to learn that the Explanatory Memorandum was mistaken
on this point and would be grateful for an explanation of how
this came about. It is obviously important that the Government
should be absolutely clear about the operation of the opt-in mechanism
to every measure to which it applies and would advise Parliament
accurately. We hope that the Government will ensure that this
is the case in the future.
We were also concerned that the exclusion from
the Directive of those granted subsidiary protection might raise
human rights issues as being in breach of the right to family
life. We would welcome your comments on that.
You refer to the Refugee Qualification Directive,
which you consider makes adequate provision for the family reunification
for those with subsidiary protection. But the draft Directive
provides for the grant of subsidiary protection only to accompanying
family members. Family reunification goes much wider than that,
and the Committee remains firmly of the view that those with subsidiary
protection should enjoy the same reunification rights as refugees.
The Committee may well wish to return to this
issue in the context of the Report on that Directive, and in the
meantime we will continue to hold the Family Reunification Directive
28 October 2002
Letter from Lord Filkin to the Chairman
I am writing in response to Lord Brabazon's
letter of 28 October, requesting further information and advising
that the document has been held under scrutiny.
Lord Brabazon expressed concern that the Government's
Explanatory Memorandum had been mistaken about the opportunity
for a further opt-in and asked for an explanation as to how this
We had assumed that the revised proposal presented
by the Commission was a new proposal and therefore that we would
have to decide afresh whether to opt in. We were subsequently
informed that this was an amended proposal and therefore that
new opt in rights were not triggered. We have now clarified the
position for the future in order that we fully understand what
constitutes a new proposal; this essentially is indicated by whether
the new document has the same or a new inter-institutional number.
Lord Brabazon also expressed concern about the
exclusion of those granted subsidiary protection and asked for
comments on whether this would raise human rights issues as being
in breach of the right to family life.
At the time that the draft Directive was presented
in January 2000 there was no harmonised definition for persons
enjoying a subsidiary form of protection. In September 2000, the
European Parliament adopted several amendments which included
restricting the scope of the Directive. The Commission, recognising
that the absence of a harmonised concept of subsidiary protection
at Community level constituted an obstacle to their inclusion
in the proposed Directive, accepted this amendment and presented
an amended proposal in October 2000. The majority of Member States
have also indicated that they are opposed to the inclusion of
those with subsidiary protection.
The Government does not accept that the exclusion
of those granted subsidiary protection is a breach of the right
to family life. Article 8 of the ECHR guarantees the right to
respect for family and private life but permits the interference
of this right in accordance with the law and as is necessary in
a democratic society. The European Court has not deduced that
there is an unlimited right to family reunification of members
of the family of a third-country national lawfully settled in
a Member State.
The UK's policy on family reunification supports
this view. There is no provision within the Immigration Rules
for a family member of a person granted subsidiary protection
to come to the UK on the basis of family reunification.
20 November 2002
Letter from Lord Filkin to the Chairman
Thank you for your letter of 20 November, which
Sub-Committee F (Social Affairs, Education and Home Affairs) of
the European Union Select Committee considered at a meeting on
We note your explanation why it was mistakenly
believed that there would be a further opportunity to decide whether
to opt in to this measure and are pleased that the position has
been clarified for the future.
We also note the Government's view that the
exclusion from the Directive of those granted subsidiary protection
is not a breach of the right to family life under Article 8 of
the ECHR. Nevertheless, the Committee remains of the view that
people granted subsidiary protection should have the same rights
to family reunification as refugees.
However, this is clearly a matter on which we
shall have to agree to disagree, and as the Government has decided
not to opt into the measure we have cleared it from scrutiny.
11 December 2002