The EU's Global Approach to Migration and Mobility - European Union Committee Contents

Chapter 8: the united kingdom's involvement with eu ASYLUM AND IMmigration policies

The United Kingdom's partial participation in EU asylum and immigration policies

160.  The GAMM was originally a United Kingdom initiative and the Government remains broadly supportive of it in principle. However, they appear to have grown increasingly sceptical since its 2005 inception, particularly as the GAMM has been extended to cover more areas. While they see the value in a shared approach to managing migration issues between the EU and its partner countries, they do not believe it is appropriate to centre the whole of the GAMM on the rights and empowerment of migrants, and are critical of the "migrant-centred" approach favoured by the Commission.[222]

161.  We asked our witnesses if the Government's decision not to participate in the majority of the EU's asylum and immigration measures undermined their ability to contribute, in a constructive and effective manner, to the EU's external migration policy and the GAMM's objectives.

162.  The Government did not think it did. They instead emphasised the importance of non-legislative initiatives and practical cooperation in areas such as irregular migration and capacity building.[223] Tony Blair once referred to the opt-in as the "best of both worlds". Open Europe seemed to agree, telling us they supported the Government's selective approach to opting in because it drew "a healthy degree of consensus and should remain in place".[224]

163.  Other witnesses argued that the position of the United Kingdom did reduce its influence. The Migrants' Rights Network stated that the Government's "singular interest" in maintaining their own standards of immigration control was not constructive and that it was difficult to see it as anything other than a very minor player in any discussion about immigration policy.[225] Professor Geddes expressed similar views.[226] Charles Clarke stated that, in his experience, British policy makers tended to approach migration policy in a vacuum, and that the "era when Britain could rely upon the white cliffs of Dover to repel all aliens is a long time passed".[227] He considered the obsession about migrant numbers to be the wrong approach and emphasised the importance of improving the "governance" of migration through clear and transparent rules, as well as better enforcement.[228] He also considered that the United Kingdom should opt in to all of the JHA measures and become fully engaged in this area, which would make it stronger and more secure.[229]

164.  Stefano Manservisi agreed that the United Kingdom's partial involvement in this area undermined its ability to influence policy discussions but also stressed that the voluntary nature of initiatives such as Mobility Partnerships still allowed Member States in the United Kingdom's position to become involved. Every time the United Kingdom is present, he remarked, the value added was quite important because of its huge experience and knowledge in these areas.[230] Hugo Brady's view was more nuanced. While he acknowledged that the United Kingdom's "cherry-picking" at times infuriated its EU partners and reduces its influence at the table, he considered that it still "has the ability to wield great influence in this area, and it wields influence to a remarkable degree" partly due to its very clear ideas about what European cooperation should be achieving in this area.[231]

165.  We consider that the United Kingdom's approach to migration policy cannot and should not be formulated and implemented in a vacuum. Migration is a global phenomenon so the United Kingdom's policy needs to take proper account of the European and international policy frameworks in order to achieve a more effective approach.


166.  Generally speaking past governments and the present administration have chosen not to opt-in to the majority of legal and irregular migration measures brought forward by the Commission.[232] Most recently the Government declined to opt-in to the proposed Intra-Corporate Transfer and Seasonal Workers Directives. While we urged the Government to opt-in to the former measure we agreed with its view that the latter proposal raised subsidiarity concerns.[233]

167.  We consider that migration has provided benefits for the EU and can continue to do so while Member States' primary competence in this area is respected. We continue to believe that the United Kingdom should seek to play a full role in the development and implementation of the EU's migration policy.

168.  We see advantage in the United Kingdom's participation in individual EU migration measures brought forward by the Commission where these are broadly consistent with Government policy. While a policy of non-participation may leave the United Kingdom free to frame its own labour migration policy, we believe that this may also place the United Kingdom at a competitive disadvantage in terms of attracting highly-skilled migrants.


169.  While they participated in the first phase of proposals to establish a Common European Asylum System (CEAS), the Government have been less inclined to participate in the five proposals that constitute the second phase of the CEAS. Two of these proposals concern the revision of the existing Qualification and Asylum Procedures Directives. We published a report recommending that the Government should opt-in to both, but they declined to do so.[234] They also refused to opt-in to the proposed revision of the Reception Conditions Directive. However, the Government has been more enthusiastic about its continued participation in the Dublin system, which includes the Dublin II Regulation and the EURODAC Regulation and the remaining two proposals aim to revise these. We published another report concerning these three proposals, in which we considered the problems that would arise if the United Kingdom did not opt in to these instruments in their revised form.[235] The Government's view was that if it did not opt-in to the proposal to repeal and replace the first phase measure then it would cease to apply in the United Kingdom once the proposal had been adopted. We took the contrary view on the basis that if the repeal was to be made by a provision of an instrument not applying in the United Kingdom, the first phase measure would continue to apply. The Commission emphatically agreed with our conclusion. We were therefore satisfied when the new Government reviewed their position on this matter and eventually concurred with our view of the legal situation.[236]

170.  We have also consistently advocated the United Kingdom's participation in the majority of individual EU asylum measures. We continue to believe that the United Kingdom should seek to play a full role in the development and implementation of the EU's asylum policy, including the completion of the Common European Asylum System.

171.  We welcome the Government's admission that non-participation in proposed recast asylum measures does not release them from their obligations under the first phase of Common European Asylum System (CEAS) measures, in which they currently participate. This has been our view since the second phase CEAS proposals were brought forward by the Commission.


172.  In the Schengen Area, each participating state manages its external borders not only to control access to its own territory but also to control access to the Schengen Area as a whole. This makes it more important for Member States to take a European and approach to migration and mobility, although this is less relevant in the case of the United Kingdom, which does not participate in the Schengen Area. However, while it does currently participate in some Schengen-building measures, particularly those concerning policing and criminal justice, it is prevented from participating in the immigration measures due to its semi-detached status. This has also ultimately thwarted its attempts to participate in the measure that established Frontex and to access data in the Visa Information System (VIS).[237]

173.  The functioning of the Schengen Area has recently come under strain because of disagreements between the French and Italian governments over Tunisian migrants seeking to cross from Italy into France, which led the latter temporarily re-introducing internal border controls. As a result, a Commission proposal to amend the Schengen Borders Code to re-impose internal border controls in limited circumstances is currently being negotiated.[238] Bulgaria and Romania have still not been admitted as full members of Schengen due to continuing concerns about organised crime in those Member States. With reference to these events, Hugo Brady stated that "if there is chaos inside the Schengen Area, this will have a direct knock-on effect on Britain's own attempts to control its own borders and reform its immigration system". He also cautioned that if the situation in Greece did not become more stable it would be difficult for it to remain a Schengen member, although there was no legal way for it to be expelled.[239]

174.  We asked some of our witnesses if the United Kingdom should ever consider becoming a full member of the Schengen Area. The Migrants' Rights Network suggested that if it became a member then it could help to address some the problems on the EU's southern border.[240] Charles Clarke stated that his "fundamental view (was) that we should join Schengen and seek the conditions to make that happen".[241] Sir Andrew Green disagreed, as did Christopher Chope who told us that "Frankly, I think that this country has played the right cards in not joining Schengen and trying to retain, as much as possible, control over its own borders. Long may that continue".[242]

175.  However, Hugo Brady considered that the United Kingdom's membership of the Schengen Area would be as difficult to achieve as joining the Eurozone, in that the British public would be unlikely to vote in favour of it.[243] However, he saw benefits in pursuing a new co-operation arrangement between the Common Travel Area and the Schengen Area on tourism visas, referring to a paper that the CER had published on this matter.[244] The Minister for Immigration confirmed that the Government had considered such an approach but had decided that it would not be appropriate.[245]

176.  While not being a full member of the Schengen Area, we believe that the United Kingdom should seek to engage with the border-free travel area wherever possible. This can be achieved through continued participation in policing and criminal justice Schengen-building measures, as well as through exploring options for enhanced cooperation between the Common Travel Area and the Schengen Area. We regret the Government's negative attitude to such cooperation and hope they will reconsider.

Free movement of persons

177.  Free movement of persons for economic purposes is one of the four fundamental freedoms of the EU, along with the free movement of goods, services and capital. Under the Treaties, Member States are only permitted to restrict free movement in exceptional circumstances, including where an individual poses a "genuine, present and sufficiently serious threat affecting one of the fundamental interests of society". Therefore any attempt by the Government to restrict immigration from other Member States would violate their obligations under the Treaties. However, Treaties of Accession for new Member States allow the existing Member States to impose temporary restrictions on workers from those new Member States for a specified period of time. The Minister for Immigration confirmed that the United Kingdom would impose temporary restrictions on workers from Croatia when it joins the EU at the beginning of 2013 and would look at doing the same regarding any future accessions. His view was that the previous government's failure to do the same before the 2004 enlargement process had undermined public confidence in the state's ability to control migration.[246]

178.  In July 2012, the Government announced a Review of the Balance of Competences between the United Kingdom and the EU.[247] This will include a review of the application of the free movement of workers in the United Kingdom, which will take place between spring and autumn in 2013. Christopher Chope supported the review and hoped that it would examine instances of the free movement of labour being abused, with respect to housing benefit claims from European workers.[248] Sir Andrew Green was less enthusiastic, stating that "to interfere with the free movement of European citizens is probably the wrong target. I doubt it is negotiable and I doubt if it is desirable". He considered that the priority should instead be "to reduce or delay the benefit entitlements of European citizens coming to work here".[249] Professor Boswell and Professor Geddes could not see how the United Kingdom could remain in the EU if it opted-out of free movement as one of the fundamental freedoms.[250]

179.  The Minister for Immigration confirmed that the forthcoming review would indeed include the perceived abuse of free movement rights within its scope, which the Government was also seeking to tackle with its European partners.[251]

180.  The free movement of persons is fundamental to the structure of the EU and an integral part of the Single Market. We believe it would be neither desirable nor feasible to seek to revise its terms. However, we support any efforts by the Government to tackle benefit fraud as long as it complies with their obligations under the Treaties.

International students and net migration targets

181.  The GAMM states that greater mobility for students and researchers from third countries could help to meet the needs of the EU's labour market if some of these individuals were able to work after completing their studies.[252] The EU has already adopted two Directives in this area to facilitate the legal migration of students and researchers from outside the EU.[253] While we urged them to opt-in to both measures, the previous administration declined to do so.[254] As a result, we considered carefully whether the Government's decision to pursue an independent policy in this area affected its competitiveness in terms of attracting international students. We previously examined this matter in our report on European higher education. In it we urged the Government to be vigilant about increased competition and engage actively with its partners across the EU in promoting the strengths of the higher education sector in the United Kingdom.[255]

182.  In May 2012 Universities UK launched a campaign calling on the Government to remove international student numbers from the net migration reduction targets as they are concerned that the reduction cannot be achieved without considerable cuts to the numbers of legitimate international students coming to the United Kingdom. This matter has since received considerable attention in both Houses of Parliament. A report by the Business, Innovation and Skills Committee in the House of Commons supported the call by Universities UK[256] and a report by the Science and Technology Committee in the House of Lords was also sympathetic.[257] The Government's response to the latter report made clear their commitment "to the sustainable growth of a sector in which the UK excels".[258]

183.  Peter Sutherland expressed concern about negative signals being sent out which may discourage students or academic staff from coming to the United Kingdom.[259] Charles Clarke considered the inclusion of international students within migration statistics to be "ridiculous",[260] while Professor Skeldon considered the policy to be "totally counterproductive".[261] However, Sir Andrew Green was strongly opposed to such a move as he considered that their removal would undermine the credibility of the Government's reduction targets. He stressed that the debate was really about "genuine students" and urged more action to detect and deter the entry of "bogus" students and those students who stay on illegally after their period of study has finished.[262]

184.  Universities UK emphasised that the majority of international students left the United Kingdom within five years of arriving. It also stressed that international students brought other benefits including helping to create an international learning environment on university campuses and contributing to the United Kingdom's "soft power" by generating future research, diplomatic and business opportunities. The number of international student enrolments had increased from 2.1 million to 4.1 million between 2000 and 2010, and the total figure is projected to rise to 7 million by 2020. The United Kingdom is currently the second most popular destination for international students after the US, having enjoyed a 13 per cent market share just before the recent immigration reforms were implemented. However, data from University UK's recent surveys suggested negative future trends, and there had already been significant reductions in applications to the United Kingdom from countries such as India and Pakistan, which had been largely obscured by increased demand from China.[263] On 29 November 2012, the Office for National Statistics published provisional figures, which appeared to confirm this trend.[264]

185.  At a Universities UK conference on 13 September 2012, the Universities Minister, David Willetts MP, made a commitment to disaggregate international student numbers within headline migration figures. However, the Minister for Immigration was clear with us that he did not agree with the removal of international student numbers from the net migration reduction targets. He stated that there was no cap on international students coming to the United Kingdom and that the Government's policy was to attract the "best and the brightest" to British universities, as long as they fulfilled specific language, academic and funding criteria, and that ministers took every opportunity to emphasise that international students were welcome to come and study in the United Kingdom. He referred to past abuses of the student visa route into the United Kingdom, with many overstaying their visas and staying on illegally, and emphasised that it was a problem that had to be addressed in order to gain public support for a properly functioning and controlled migration system.[265]

186.  We welcome the Government's commitment to the sustainable growth of the higher education sector. While we also welcome their intention to disaggregate the statistics on student migration within headline migration figures as a small step in the right direction this does not address the heart of the problem, which is not purely statistical in nature.

187.  We consider that the current policy creates the perception that overseas students are not welcome in the United Kingdom. We therefore believe that it harms both the quality of the United Kingdom's higher education sector and its ability to compete in an increasingly competitive global market for international students, particularly with other English-speaking countries and some EU Member States, thus reducing much needed income from tuition fees for our universities and damaging the United Kingdom's international influence in the longer term.

188.  We recommend the removal of international students from the public policy implications of the Government's policy of reducing net migration. If the Government genuinely favour an increase in bona fide students from outside the EU they should make this clearer and ensure that all policy instruments support this objective.

222   UK Government Back

223   UK Government Back

224   Q 121 Back

225   Migrants' Rights Network Back

226   Q 232 Back

227   Q 138 Back

228   QQ 139-141 Back

229   Q 169 Back

230   Q 326 Back

231   Q 205 Back

232   See Appendix 4 for a complete list Back

233   EU Committee, Subsidiarity assessment: admission of third-country nationals as seasonal workers (1st Report of Session 2010-12, HL Paper 35) Back

234   EU Committee, Asylum directives: scrutiny of the opt-in decisions (1st Report of Session 2009-10, HL Paper 6) Back

235   EU Committee, The United Kingdom opt-in: problems with amendment and codification (7th Report of Session 2008-09, HL Paper 55) Back

236   Letter from the Rt. Hon Theresa May MP, Home Secretary, to the Chairman of the EU Committee regarding the JHA Opt-in dated 8 February 2012, Correspondence with Ministers, 1 December 2011-16 March 2012 Back

237   The Government challenged each decision before the European Court of Justice but lost in both instances. Back

238   Commission Communication, Schengen governance-strengthening the area without internal border control, COM (2011) 561, 16.9.2011 Back

239   Q 195 Back

240   Migrants' Rights Network Back

241   Q 169 Back

242   Q 217 Back

243   A referendum would also be required under the European Union Act 2011. Back

244   Q 204. See Campaign for European Reform, Britain, Ireland and Schengen: Time for a smarter bargain on visas, July 2011  Back

245   Q 299 Back

246   Q 296 Back

247   FCO, Review of the Balance of Competences between the United Kingdom and the European Union, Cm 8415 (July 2012) Back

248   Q 217 Back

249   Q 218 Back

250   Q 233 Back

251   Q 292 Back

252   GAMM, p. 14 Back

253   Directive 2004/114/EC on the conditions of admission of third-country nationals for the purposes of studies, pupil exchange, unremunerated training or voluntary service, OJ L375 (23 December 2004) p 12, and Directive 2005/71/EC on a specific procedure for admitting third-country nationals for the purposes of scientific research, OJ L289 (3 November 2005) p 15. Back

254   These measures were considered by the Committee in 2003 and 2004. See Appendix 4 for further information. Back

255   EU Committee, The Modernisation of Higher Education in Europe (27th Report of Session 2010-12, HL Paper 275) Back

256   Business, Innovation and Skills Committee, Overseas Students and Net Migration (Fourth Report of Session 2012-13, HC Paper 425) Back

257   Science and Technology Committee, Higher Education in Science, Technology, Engineering and Mathematics (STEM) subjects (2nd Report of Session 2012-13, HL Paper 37) Back

258   Government Response to the House of Lords Select Committee on Science and Technology Report: Higher Education in Science, Technology, Engineering and Mathematics (STEM) subjects, November 2012 Back

259   Q 15 Back

260   Q 149 Back

261   Q 231. Professor Geddes agreed with him. Back

262   Q 214 Back

263   Universities UK Back

264   ONS, Migration Statistics Quarterly Report, November 2012 Back

265   QQ 274-290 Back

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