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.
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.
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".
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. Professor Geddes
expressed similar views.
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".
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
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.
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.
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.
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.
EU IMMIGRATION MEASURES
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
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.
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.
EU ASYLUM MEASURES
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. 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.
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
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.
THE SCHENGEN AREA
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).
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.
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.
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.
Charles Clarke stated that his "fundamental view (was) that
we should join Schengen and seek the conditions to make that happen".
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
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.
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. The Minister
for Immigration confirmed that the Government had considered such
an approach but had decided that it would not be appropriate.
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
178. In July 2012, the Government announced a
Review of the Balance of Competences between the United Kingdom
and the EU. 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.
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".
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.
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.
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
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.
The EU has already adopted two Directives in this area to facilitate
the legal migration of students and researchers from outside the
EU. While we urged
them to opt-in to both measures, the previous administration declined
to do so. 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.
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
and a report by the Science and Technology Committee in the House
of Lords was also sympathetic.
The Government's response to the latter report made clear their
commitment "to the sustainable growth of a sector in which
the UK excels".
183. Peter Sutherland expressed concern about
negative signals being sent out which may discourage students
or academic staff from coming to the United Kingdom.
Charles Clarke considered the inclusion of international students
within migration statistics to be "ridiculous",
while Professor Skeldon considered the policy to be "totally
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
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.
On 29 November 2012, the Office for National Statistics published
provisional figures, which appeared to confirm this trend.
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.
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
UK Government Back
Q 121 Back
Migrants' Rights Network Back
Q 232 Back
Q 138 Back
QQ 139-141 Back
Q 169 Back
Q 326 Back
Q 205 Back
See Appendix 4 for a complete list Back
EU Committee, Subsidiarity assessment: admission of third-country
nationals as seasonal workers (1st Report of Session 2010-12,
HL Paper 35) Back
EU Committee, Asylum directives: scrutiny of the opt-in decisions
(1st Report of Session 2009-10, HL Paper 6) Back
EU Committee, The United Kingdom opt-in: problems with amendment
and codification (7th Report of Session 2008-09, HL Paper
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
The Government challenged each decision before the European Court
of Justice but lost in both instances. Back
Commission Communication, Schengen governance-strengthening
the area without internal border control, COM (2011) 561,
Q 195 Back
Migrants' Rights Network Back
Q 169 Back
Q 217 Back
A referendum would also be required under the European Union Act
Q 204. See Campaign for European Reform, Britain, Ireland and
Schengen: Time for a smarter bargain on visas, July 2011 Back
Q 299 Back
Q 296 Back
FCO, Review of the Balance of Competences between the United
Kingdom and the European Union, Cm 8415 (July 2012) Back
Q 217 Back
Q 218 Back
Q 233 Back
Q 292 Back
GAMM, p. 14 Back
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
These measures were considered by the Committee in 2003 and 2004.
See Appendix 4 for further information. Back
EU Committee, The Modernisation of Higher Education in Europe
(27th Report of Session 2010-12, HL Paper 275) Back
Business, Innovation and Skills Committee, Overseas Students
and Net Migration (Fourth Report of Session 2012-13, HC Paper
Science and Technology Committee, Higher Education in Science,
Technology, Engineering and Mathematics (STEM) subjects (2nd
Report of Session 2012-13, HL Paper 37) Back
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
Q 15 Back
Q 149 Back
Q 231. Professor Geddes agreed with him. Back
Q 214 Back
Universities UK Back
ONS, Migration Statistics Quarterly Report, November 2012 Back
QQ 274-290 Back