Select Committee on European Scrutiny Seventh Report


COM(01) 257

Draft Directive on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States.

Legal base: Articles 12,18(2), 40, 44 and 52 EC; co-decision; unanimity
Document originated: 23 May 2001
Forwarded to the Council: 2 July 2001
Deposited in Parliament: 23 July 2001
Department: Home Office
Basis of consideration: EM of 10 October 2001
Previous Committee Report: None
To be discussed in Council: No date set
Committee's assessment: Politically important
Committee's decision: Not cleared; information on progress requested

The document

8.1  This new proposal aims to consolidate existing legislation and case law as well as extending the law in certain areas. The explanatory memorandum to the document tells us that the right of entry and residence for EU citizens "is currently governed by a complex corpus of legislation, comprising two regulations and nine directives. These instruments have different parts of the EC Treaty as their legal bases and are specific to different categories of people. This proposal brings these categories together in a single legislative instrument."

8.2  The explanatory memorandum spells out the basic concept as follows:

    "Union citizens should, mutatis mutandis, be able to move between Member States on similar terms as nationals of a Member State moving around or changing their place of residence or job in their own country. Any additional administrative or legal obligations should be kept to the bare minimum required by the fact that the person in question is a 'non-national'.

8.3  Article 1 of the proposal itself states that the Directive lays down:

    "(a)the conditions governing the exercise of the right to move and reside freely within the Member States by Union citizens and their family members;

    (b)the right of permanent residence in the Member States for Union citizens and their family members;

    (c)the limits placed on these rights on grounds of public policy, public security and public health."

8.4  In her Explanatory Memorandum, the Parliamentary Under-Secretary of State at the Home Office (Angela Eagle) outlines the main changes to existing Community legislation as follows:

    "—The definition of a family member would be widened and would include the unmarried partner of an EEA national if the legislation of the host Member State treats unmarried partners as equivalent to married couples and in accordance with the conditions laid down in any such legislation.

    — The draft Directive does not restrict the family members of an EEA national student to his spouse and dependant children. The scope of the definition of more distant family members would be extended to include all EEA nationals including students.

    — There is nothing within the draft Directive to say that EEA nationals may be required to show that they have a valid passport or identity card in order to gain entry into a Member State. Regulation 68/360/EEC provides that the EEA national must produce a valid identity card or passport.

    — The draft Directive would make it compulsory for visa national family members to obtain a residence document before the visa expires. These would have to be issued within three months. Under current EC law, applications must be dealt with within six months.

    — EEA nationals would have the right to remain for longer than six months by a declaration that they had sufficient funds or were in employment. Member States would no longer be permitted to request evidence that the EEA national was exercising Treaty rights.

    — If an EEA national dies or leaves the Member State, non-EEA family members would retain a right of residence if they were employed or had sufficient funds to support themselves. Under certain circumstances, divorce would not entail the loss of residence for a non-EEA family member. Under current EC law, if the EEA national leaves the host Member State, the non-EEA family no longer has a right to reside in the host Member State.

    — Permanent residence would be introduced into EC law under the proposed draft Directive. This would be acquired after four years residence and Member States would not be able to request specific evidence required to establish the right to permanent residence. Once an EEA national or their non-EEA family member has acquired permanent residence they could not be expelled on public policy grounds."

8.5  In addition to these changes, there are some other noteworthy features of the new proposal. Although Article 21 (1) states the right of residents in the host Member State (whether EU citizens or third country national family members) to equal treatment with nationals of that state, Article 21 (2) provides:

    "until they have acquired the right of permanent residence, the host Member State shall not be obliged to confer entitlement to social assistance on persons other than those engaged in gainful activity in an employed or self-employed capacity or the members of their families, nor shall it be obliged to award maintenance grants to persons having the right of residence who have come to the country to study."

8.6  In relation to restrictions on the right of free movement on the grounds of public policy, public security and public health, the explanatory memorandum to the document states:

    "The Commission proposal aims to provide a tighter definition of the concept of public policy by incorporating established Court of Justice case-law on the matter. [It] strengthen[s] procedural safeguards, in particular by ensuring that judicial redress procedures are always available, and provides greater protection against expulsion by taking account of how integrated the Union citizen is in the host country. [It also provides] absolute protection for minors with family ties in the host country".

The Government's view

8.7  The Minister tells us:

    "The main purpose of the draft Directive is to consolidate existing Community legislation and case law. We support this objective in the interests of clarity for citizens of the EU and their family members. While the proposed draft Directive would have the positive effect of encouraging free movement of workers and those seeking educational opportunities across national boundaries within the Member States, the Government would wish to ensure during negotiations that the provisions of the draft Directive will not give rise to any unintended abuse of the immigration control system or undue public expenditure costs. We note, in particular, that there are a number of apparent changes to existing Community legislation.....The Government will consider the effects of these provisions and where necessary we will seek amendments in negotiation."

8.8  The Minister also queries Article 4. Noting that it is a free-standing non-discrimination provision, she comments:

    "But the principle of equality or non-discrimination is already a general principle of Community law, and as such must be complied with by Member States in implementing a Directive (see ECJ Case C-2/97 Società Italiana Petroli v Borsana, at paragraph 48). In that context, the intended effect of Article 4 of the Directive is unclear."


8.9  We welcome the spirit of this Directive. We recognise that it is at an early stage, and ask the Minister to keep us in touch with the progress of negotiations. In particular, we ask to be told, as soon as possible, the results of the Government's deliberations on which of the provisions, if any, need amendment. We also ask the Minister to confirm that the provisions will apply reciprocally to the whole of the European Economic Area, and to tell us what the position is in relation to Switzerland.

8.10  We agree with the Minister that the intended effect of Article 4 is unclear, and we look to her to inform us of any clarification which is achieved. In particular, we ask the Minister if the effect of Article 4 would be to require Member States to recognise the legal status of single-sex partnerships under the laws of other Member States and to give effect to them within the national territory in relation to matters covered by the Directive.

8.11  Meanwhile, we will keep the document under scrutiny.

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