Select Committee on European Scrutiny Twelfth Report


RIGHT OF CITIZENS OF THE UNION AND THEIR FAMILY MEMBERS TO MOVE AND RESIDE FREELY WITHIN THE TERRITORY OF THE MEMBER STATES


(22558)
10788/01
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: Minister's letter of 10 December 2001
Previous Committee Report: HC 152-vii (2001-02), paragraph 8 (21 November 2001)
To be discussed in Council: No date set
Committee's assessment:Politically important
Committee's decision:Not cleared; information on progress requested



Background

  7.1  This proposal aims to consolidate existing legislation and case law as well as extending the law in certain areas. When we first considered it in November, we recognised that it was at an early stage of negotiations, and asked the Parliamentary Under-Secretary of State at the Home Office (Angela Eagle) a number of questions about the proposal and the Government's stance. The Minister has now responded, addressing all our questions.

The Minister's letter

  7.2  We asked the Minister to keep us informed of any progress that had been made in negotiations. She tells us:

    "The draft Directive was discussed for the first time at EU working group level on 14 November. A further meeting took place on 28 November and another meeting is scheduled to take place on 11 December. The aim of these first three meetings is to allow Member States to give their overall views on the draft Directive and to ask for clarification on each of the Articles. The Articles will be revisited at a later date to allow for specific amendments. Other Member States appear to share the concerns expressed in my Explanatory Memorandum that the Directive should not give rise to unintended abuse of immigration controls, or to undue additional public expenditure costs. A number of Member States indicated that they would be seeking amendments to the Directive to deal with these concerns."

  7.3  In response to our request to be informed as soon as possible of the results of the Government's deliberations on which of the provisions, if any, need amendment, the Minister provides a detailed response as follows:

    "The Government will be seeking amendment of a number of provisions in the draft Directive. Our principle aim is to ensure that the provisions in respect of family members of EU nationals do not lead to an unacceptable increase in the number of applications from such family members and therefore an increased burden on resources in the United Kingdom (UK). We also intend to ensure that the Directive does not lead to increased abuse of our immigration controls; that it does not prevent us expelling EU nationals or their family members on public policy or public security grounds, where necessary; and that it adequately addresses the UK's frontiers policy. I set out below the most important amendments that we are seeking on policy grounds.

     Article 2

    "Article 2 as drafted would remove the dependency requirement for family members of EU nationals. This would have the effect of allowing any direct relatives of EU nationals working in the UK or their married or unmarried partners to join them in the UK, whether or not they had adequate means of support. Similarly, it would allow the admission of those more distant family members of EU students. Current EC law only provides for an EU student's spouse and children. We are concerned that this widening of definitions could lead to a substantial increase in the number of third country nationals gaining admission to the UK, which in turn could lead to an increased social and financial burden on the UK. We would therefore like the dependency requirement reinstated.

    Articles 5 and 6

    "We will seek to ensure that Articles 5 and 6 do not prevent the UK operating its frontier controls. We may therefore need to seek amendments to Articles 5 and 6 to ensure that the UK can continue to examine passports on exit from and entry to the UK, should we choose to do so.

    Articles 8 and 18

    "We shall seek to amend Articles 8 and 18 which deal with administrative formalities so that we are able to require EU nationals to provide evidence that they are exercising their rights under this Directive, rather than merely provide a declaration, as currently drafted.

    Articles 13 and 16

    "We shall be seeking removal or amendment of the provisions in Articles 13 and 16 which would allow for a family member to remain in the UK following the family member's divorce from a EU national.

    Article 26(2)

    "Finally we shall be seeking removal or amendment of Article 26(2) which prevents the expulsion or removal on grounds of public policy or public security of EU nationals or the family members who have been granted permanent residence under this Directive, or family members who are minors. We consider that we need to be able to remove and exclude permanent residents who are undesirable, if required."

  7.4  We asked the Minister to confirm that the proposed Directive would apply to all nationals of the European Economic Area, and to explain the position of Switzerland. She confirms the first point. In response to the second, she tells us that the new Directive will not supersede the provisions on the free movement of persons contained in the Community agreement with Switzerland which is expected to enter into force early this year for an initial period of seven years.

  7.5  Finally, we asked for clarification of the intended effect of Article 4 (a free-standing non-discrimination clause) both generally, and specifically in relation to single-sex partnerships. In response, the Minister says:

    "In your letter you also asked about the intended effect of Article 4 with regard to same sex partners. We are still looking for further clarification on the intended meaning of Articles 2 and 4. Our understanding, however, is that Article 2 is intended to ensure that unmarried partners will be treated like spouses for the purpose of exercising family member rights under the Directive but only in a host Member State which, under its national law, provides for unmarried partner status. Article 4 will not require host Member States which do not provide for unmarried partner status to treat unmarried partners as family members for the purpose of the Directive."

Conclusion

  7.6  We thank the Minister for a full and helpful response which has clarified some aspects of the document and of the Government's stance. In view of the detailed work programme she outlines, we shall keep the document under scrutiny while negotiations continue.

  7.7  We ask to be informed of progress and supplied with any amended text in good time before the measure is discussed in Council.

  7.8  We recognise that there is a difficult balance to be struck between the concept of EU citizenship and legitimate national interests. While we support the Government's wish to avoid undue public expenditure costs and unintended abuse of immigration controls, we hope that it will not emphasise national interests to such an extent that the spirit of the proposal is lost. We query, for example, whether the retention of the ability to exclude permanent residents whom the Government considers undesirable is compatible with that spirit. We ask the Minister to comment on this matter, when she next reports to us on progress.

  7.9  Meanwhile, we will keep the document under scrutiny.


 
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