VISAS TO ENTER THE SCHENGEN AREA (11668/06)
Letter from the Chairman to Joan Ryan
MP, Parliamentary Under-Secretary of State, Home Office
Sub-Committee F (Home Affairs) of the House
of Lords Committee on the European Union examined the proposed
Regulation changing the Common Visa List at a meeting on 11 October
2006.
We were surprised by proposals that the EU should
add British nationals without the right of abode to the common
list of nationals requiring a visa to enter the Schengen states.
While it is true that such nationals are not in the same position
as British citizens for the purposes of UK and EU law, neither
are they in the position of aliens. All hold nationality documentation
issued by the UK government and have the right, subject to some
limits, to call on the UK government to protect them in certain
circumstances. Even if there is no link to the territory of the
UK by birth or previous residence, the link to the government
of the UK which issues nationality documents, affords nationality
status, and has responsibilities towards its "subjects"
must be sufficient to distinguish them from aliens, to whom there
is no duty of protection owed in international law in the absence
of a specific assumption of responsibility.
We are aware that changes in UK law since 2002
have greatly reduced the number of British nationals who will
have no claim to be British citizens automatically. Most British
nationals and protected persons who have no other nationality
or citizenship will have become British citizens with the right
of abode in the UK and will thus be British nationals for EU law
purposes. Those with another nationality can only become full
British citizens by a qualifying period of residence in the UK
and the fulfilment of other requirements. Given that we are dealing
with a residual category of people, it is not obvious to us what
migratory or public policy risks these British subjects might
represent to justify inclusion in the common list of nationals
requiring a visa. Moreover, we wondered whether these British
subjects would require a visa when their sole purpose in entering
the Schengen state was to travel in the UK.
The Committee is not holding this document under
scrutiny but would be grateful if you could let us know what the
Foreign and Commonwealth Office's views are on this matter and
how they differ from the Home Office's views.
12 October 2006
Letter from Joan Ryan MP to the Chairman
Thank you for your letter of 12 October, in
which the Committee asked for further information on this proposal.
The situation concerning this matter has moved
on since an Explanatory Memorandum was submitted for scrutiny
in August. We have recently approached the Commission with regard
to the specific wording on certain British nationals. There have
also been developments on the viewpoint of the FCO in this matter.
The Commission's proposal, we now feel, requires
further explicit reference to those British nationals who are
exempt from the visa requirement and those who are not. Certain
British nationals (who are not British citizens) are deemed to
hold the nationality of a Member State by reason of their association
with the United Kingdom and, therefore, are "citizens of
the Union" under Article 17 of the EC Treaty. As such they
have free movement rights within the EU, and it would be inconsistent
with their status under the Treaty to include them on the Common
Visa List.
The British nationals in question are identified
by the "Declaration by the government of the United Kingdom
on the definition of the term `nationals'" (1982) and also
in the judgment of the ECJ in Case C-192/99 Manjit Kaur. The persons
identified in the 1982 declaration are:
(b) Persons who are British subjects by virtue
of Part IV of the British Nationality Act 1981 and who have the
right of abode in the UK and are therefore exempt from UK immigration
control;
(c) British Dependent Territories citizens who
acquire their citizenship from a connection with Gibraltar.
In addition, the FCO intends to put forward
the case for all British Overseas Territories Citizens
to be given visa free access to the Schengen area on the basis
that each BOTC has a strong link to the UK, in fact stronger than
BN(O)s who will be visa exempt under the Commission's proposal,
and also because they, like BN(O)s, are returnable and therefore
pose less of an immigration risk. The FCO has not expressed concern
over the other categories of British national.
With the above categories in mind, and subject
to the BOTC issue, the UK would therefore continue to support
the Commission and the Schengen States in their wish to include
other categories of British nationals who cannot be considered
EU nationals (ie British Overseas citizens, British protected
persons and British subjects other than those mentioned above)
on the Common Visa List. It must be remembered, howevr, that we
do not participate in the Regulation and therefore have limited
influence over any amendments to the list.
It was intended to raise these issues, in the
first instance, in the SCIFA meeting held in week commencing 16
October. However, UKREP approached the Commission in the margins
and it was decided it would be preferable to put forward our concerns
in the next Visa Working Group on 26 October. It is my understanding
that this will also be discussed further at the SCIFA meeting
on 9 November.
I shall report back to the Select Committee
once I have further developments on this matter.
31 October 2006
Letter from the Chairman to Joan Ryan
MP
Thank you for your letter of 31 October explaining
the current position of the FCO on the Commission's proposed Regulation
changing the Common Visa List. Sub-Committee F (Home Affairs)
of the House of Lords Committee on the European Union examined
this matter again at a meeting on 22 November 2006.
The FCO seems to have no concerns about some
categories of British nationals being made subject to visa requirements.
We still have doubts, however, about the legitimacy of discriminating
between various categories of British nationals for the purpose
of exemption from, or inclusion in, the Schengen visa list. As
we explained in our letter of 12 October, we hold the view that
under international law the various categories of British nationals,
no matter how strong or weak their link to the UK, cannot be treated
on a par with aliens, as the UK government owes them a duty of
protection. The Committee would be grateful if you could address
this point.
We further questioned whether these categories
of British nationals being made subject to a visa requirement,
ie British Overseas Citizens (BOC) and British Subjects and British
Protected Persons (BPP), in fact pose an immigration risk. Could
you tell us how many British nationals would be affected by the
introduction of a Schengen visa requirement, where these British
nationals are currently resident, and why it is believed they
pose an immigration risk? If they do pose such an immigration
risk, this risk is arguably felt more strongly by the UK than
by Member States in the Schengen area. British Overseas Citizens,
British Subjects and British Protected Persons who want to come
to the UK have visa-free access. Would the government therefore
consider bringing its own visa requirements into line with the
Schengen visa list in respect of these categories of UK nationals?
22 November 2006
Letter from Joan Ryan MP to the Chairman
Thank you for your letter of 22 November 2006
in which you raised several points arising from a Commission proposal
for amending Regulation 539/2001 listing the third countries whose
nationals must be in possession of a visa when crossing the external
borders of Schengen Member States and those whose nationals are
exempt from that requirement.
This matter has progressed since our Explanatory
Memorandum last August. I would like to take this opportunity
to update the Committee on the outcomes of the two meetings to
which I referred in my letter of 31 October 2006, namely the Visa
Working Group (VWG) and the Strategic Committee on Immigration,
Frontiers and Asylum (SCIFA) meeting.
At the VWG meetings of 26 October 2006 and 14
November 2006 it was agreed—after UK intervention—to
remove reference to those British Subjects (BS) and British Overseas
Territories Citizens (BOTC) with a right to abode in the UK from
Annex I thereby removing the obligation for a visa. This proposal
was accepted by the SCIFA/Mixed Committee of 9 November 2006 and
the Permanent Representatives Committee (COREPER) of 23 November
2006, where agreement was reached on the text of the draft Regulation.
A general approach on the Regulation was taken
at the JHA Council of 4/5 December 2006. Committee members will
want to be aware that the European Parliament (EP) voted—this
is a consultation rather than co-decision matter—on the
amendment of Regulation 539/2001 on 14 December 2006, and suggested
several amendments; two were rejected—Amendment 1: a reference
to when 539/2001 is next considered for review, the visa status
of other small island states should be examined and Amendment
4: a reference to special passports was inserted—by the
Presidency who assessed the amendments and requested delegations
to approve their position by silent written procedure. The Presidency's
assessment was shared by the Commission whose position was confirmed
according to internal Commission procedures. The draft Regulation
was submitted to COREPER/Council as an I/A point item on 20 December
2006. The Council Regulation amending Regulation 539/2001 was
adopted at the Agriculture/Fisheries Council on 20 December 2006
and was published in the Official Journal on 30 December 2006.
Regulation 1932/2006 amending Regulation 539/2001 entered into
force on the 19 January.
Turning now to the points you raised; your first
point concerned the question of the level of assistance certain
British nationals could expect from HM Government. As you pointed
out in your letter of 12 October 2006, holders of certain British
national passports—with a right of abode in the UK—can
rely on assistance from HM Government under certain circumstances.
However, those British nationals who do not have a right of abode
in the UK are eligible for consular protection and assistance
only. HM Government will help British nationals whether or not
they normally live in the UK. As the overseas territories are
"crown possessions" under British sovereignty, British
nationals should contact the local authorities if they are in
difficulty in these areas. We provide the same help to BOTCs living
or travelling outside the overseas territory as we do to any other
British national in difficulty.
On the second point raised, how many British
nationals would be affected by the introduction of a Schengen
visa requirement, I can confirm that there are about 1.5 million
British Overseas Citizens (BOC), 10,000 British Protected Persons
(BPP) and 200,000 BSs. This figure includes all those affected
by the proposal including those with and without a right of abode
in the UK.
With regards to your third point, BOCs, BPPs
and BSs passport holders are mostly resident in the Indian sub-continent,
Malaysia and East Africa.
Your fourth, fifth and sixth points refer to
why BOCs, BPPs and BSs (without a right of abode in the UK) "pose
an immigration risk", their "visa free access"
to the UK and the need to align the UK's visa requirements with
the Schengen Member States' Common Visa List; I will answer the
three points together. The three categories of British nationals
referred to do not have visa free access to the UK when, for example
they are seeking entry for a period exceeding six months or are
seeking entry for a purpose for which prior entry clearance is
required under the Immigration Rules. Those British nationals
who do not have a right of abode in the UK are subject to UK immigration
control and to any restrictions endorsed in their passports. With
the exception of a few hundred BOTCs who are not British citizens,
and some BSs, the Commission's proposal will mean that Schengen
visa requirements for the relevant British nationals will be more
closely aligned to the UK's immigration control. We believe that
this is a significant achievement.
In its report of 11 October 2006 (37th report,
2005-06) on this process, the European Scrutiny Committee asked
that I provide the views of the FCO on the proposal to require
BOCs, certain categories of BSs and BPPs to possess visas for
entry into the Schengen area. The FCO has been consulted throughout
the process and are content. As these categories are subject to
immigration control in the UK it is difficult to argue against
similar requirements being put in place by our EU partners. BOCs,
certain categories of BSs—primarily those who have a connection
with India and Pakistan and BPPs, cannot automatically be returned
to their country of origin.
7 February 2007
Letter from the Chairman to Joan Ryan
MP
Thank you for your letter of 7 February which
Sub-Committee F (Home Affairs) of the House of Lords Select Committee
on the European Union examined at a meeting on 7 March 2007.
The Committee is very grateful for your comprehensive
reply. We note that in the meantime the Regulation was adopted
and has entered into force but would be grateful if you could
address one further query on the information you have provided.
You very helpfully provide the figure of all British nationals
affected by the introduction of a Schengen Visa requirement, whether
or not they have a right of abode. Could you give us, in the case
of each of the categories involved, the breakdown of those who
have a right of abode in the UK, and those who do not?
7 March 2007
Letter from Joan Ryan MP to the Chairman
Thank you for your letter of 7 March in which
you requested further details on the numbers of certain categories
of British nationals who may be affected by the amendment to the
EU Common Visa List, and whether they have the right of abode
or not.
The Immigration and Nationality Directorate
(IND) does not collect this data. However, it does hold data on
grants of right of abode (ie, where an application has been submitted
to IND for a certificate of entitlement to the right of abode)
relating to categories of British nationals from October 2001
to 18 March 2007. The figures covering this period are below.
These statistics are based on data extracted from management information,
are provisional, and are subject to change; they are not National
Statistics.
BOTCs number approximately 160,000. These are
British nationals by connection with one of the British overseas
territories listed in Schedule 6 of the British Nationality Act
1981 (with the exception of those with a connection to the UK
Sovereign Base Areas of Akrotiri and Dhekelia (in Cyprus)). A
person who was a BOTC immediately before 21 May 2002 became a
British citizen automatically on that date under the British Overseas
Territories Act 2002. As British citizens, these BOTCs have a
right of abode in the UK. The FCO estimates only several hundred
BOTCs do not have a right of abode in the UK. There was one grant
of right of abode by IND during the period in question.
British Overseas Citizens number approximately
1.5 million and do not have an automatic right of abode in the
UK. There were 11 grants of right of abode by IND during the period
in question.
British Protected Persons number approximately
10,000 and do not have an automatic right of abode in the UK.
There was one grant of right of abode by IND during the period
in question.
BSs number approximately 200,000 and may have
a right of abode in the UK on the basis of a pre-1983 ancestral
or marital connection with the UK (under section 2(1) (b), of
the Immigration Act 1971 as amended). Figures indicate there were
six grants of right of abode by IND during the period in question.
Please note that applications, with supporting evidence, for BS
passports are processed separately by the Identity and Passport
Service (IPS). BS passports issued by the IPS indicate whether
the holder has a right of abode in the UK. IPS does not collect
information on the number of documents so marked.
3 April 2007
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