Select Committee on European Scrutiny First Report



Draft Council Directive on the mutual recognition of decisions on the expulsion of third country nationals.

Legal base: Article 63(3) EC; consultation; unanimity
Deposited in Parliament: 1 February 2001
Department: Home Office
Basis of consideration: EM of 15 February 2001; Minister's letters of 11 May and 6 June 2001
Previous Committee Report: HC 28-viii (2000-01), paragraph 4 (14 March 2001)
Discussed in Council: 28-29 May 2001
Committee's assessment: Legally and politically important
Committee's decision: Cleared


26.1  Article 63(3)(b) EC requires the Council to adopt measures on illegal immigration and illegal residence, including repatriation of illegal residents, by 1 May 2004. One such measure is a draft Directive on the mutual recognition of decisions on the expulsion of third country nationals.

26.2  The previous Committee considered an earlier version of the draft Directive on 22 November 2000 and the revised version on 14 March 2001. It asked the Minister to explain the purpose and effect of the exclusion from the scope of the Directive of 'family members of citizens of the Union who have exercised their right of free movement'. It also asked the Minister to inform it of the results of any consultations with relevant non-governmental organisations on the revised draft Directive, and maintained the scrutiny reserve.

26.3  The then Minister of State at the Home Office (Mrs Barbara Roche) copied to the Committee her letter of 11 May to our sister committee in the House of Lords, and we have since seen a copy of her letter of 6 June to the Leader of the House of Commons stating that the Directive had been adopted at the Justice and Home Affairs Council notwithstanding the scrutiny reserve.

The Minister's letters

26.4  In her letter of 11 May, the Minister attached an annex containing detailed comments on the questions raised by our sister committee and the submissions made by NGOs. The annex does not deal with our questions directly, but it does comment that the exclusion of family members from the scope of the Directive should also apply to EEA and Swiss nationals and their family members. The annex also refers to views expressed by Statewatch and the Immigration Law Practitioners' Association, but it is not clear whether the views relate to the revised draft Directive or its predecessor.

26.5  In her letter of 6 June, the Minister explained the reasons for agreeing to the adoption of the Directive at the Justice and Home Affairs Council on 28-29 May as follows:

    "I recognise that the directive on mutual recognition of decisions on the expulsion of third-country nationals is a more significant instrument, and that the Scrutiny Committees have taken a close interest in it. Particularly following the deaths at Dover, the United Kingdom strongly supported the Council's determination to address the issues of illegal immigration and human trafficking, and we welcomed the package of measures tabled by the former French Presidency on the mutual recognition of expulsion decisions, facilitation of illegal entry and residence, and carrier penalties. Successive European Councils have called for results in this area. We therefore considered it important that this measure should finally be adopted. There was also an important legal consideration which we took into account. Under the terms of Article 3 of the Protocol on the position of the United Kingdom and Ireland, if we opt into the adoption and application of a measure, as we did in the case of this directive, but are the only Member State preventing adoption, it is open to the other Member States to proceed without us. We did not want to risk the possibility that the other Member States would discuss proceeding without us."


26.6  Although the Minister had already dealt with most of our concerns, we regret that she did not find it possible to answer the points we had raised when we considered the Directive in March. In our view, this could have been done in sufficient time for us to clear the document before the matter was considered at the Justice and Home Affairs Council.

26.7  We do not find the then Minister's invocation of an 'important legal consideration' under Article 3 of the Protocol on the position of the United Kingdom and Ireland at all persuasive to justify the overriding of the scrutiny reserve in this case. We do not consider that postponing the adoption of a measure until a subsequent Council, in order to ensure national parliamentary scrutiny, would entitle the Council to adopt the measure under Article 3(2) without the participation of the United Kingdom. We do not believe that the Protocol would be interpreted so as to make it unreasonable for a Member State to delay its participation in the adoption of a measure in order to ensure effective scrutiny. In any event, in this case the Minister could, in our view, have replied in sufficient time for the document to be cleared from scrutiny before the Council in question.

26.8  As the measure has been adopted by the Council, we do not consider that any purpose would now be served by holding the document under scrutiny. We therefore clear the document.

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Prepared 30 July 2001