Select Committee on European Scrutiny Fifteenth Report




COM(01) 386

Draft Council Directive on the conditions of entry and residence of third-country nationals for the purpose of paid employment and self-employed economic activities.

Legal base:Article 63 (3)(a)EC; consultation; unanimity of participating States
Document originated:11 July 2001
Forwarded to the Council:6 September 2001
Deposited in Parliament:25 September 2001
Department:Home Office
Basis of consideration:Minister's letter of 3 January 2002
Previous Committee Report:HC 152-ix (2001-02), paragraph 8 ( 5 December 2001)
To be discussed in Council:No date set
Committee's assessment:Politically important
Committee's decision:For debate in European Standing Committee B (together with the draft Council Directive on the status of third country nationals)


  3.1  This is one of several proposals being prepared in accordance with the principles set out in the Commission's Communication on a Community Immigration Policy,[14] which was cleared following a debate in European Standing Committee B in April. This draft Directive is intended to address the substantial differences among Member States in the conditions of admission and stay for third country nationals who are in the European Union for employment purposes. It aims to provide a common legal framework within which Member States would have considerable flexibility to develop their own admission policies for economic migrants.

  3.2  As the legal base of this draft Directive falls within Title IV of the EC Treaty, the UK had three months from the formal publication of the proposal in which to decide whether to opt in to the measure (in accordance with the provisions in the Protocol on the position of the United Kingdom and Ireland now annexed to the EC Treaty and the Treaty of European Union). The UK has decided not to opt in to the proposal.

  3.3  When we considered the proposal in December, we asked the Parliamentary Under-Secretary of State at the Home Office (Angela Eagle) a number of questions, and kept the document under scrutiny.

The Minister's letter

  3.4  The Minister has responded promptly, addressing all our questions and enclosing the annex on the implications of the proposal for the UK state pension scheme which had not been attached to the Explanatory Memorandum. She begins by telling us about the Government's decision not to participate in the measure, as follows:

"To date the Government has not participated in Title IV migration measures on the grounds that to do so would be inconsistent with the UK's ability to determine its admissions policy. We have decided, similarly, not to opt in to this particular Directive. But we shall keep the matter under review, in the light of the opportunity which we have to opt in following its adoption."

The Minister also tells us that, as the draft Directive has not yet been discussed at working group level, the UK does not know what other Member States think of it.

  3.5  We asked the Minister whether, in her view, the degree of discretion allowed to Member States and the possibility of some third-country nationals enjoying more favourable provisions under existing bilateral or multilateral agreements seriously undermined the proposed framework. She disagrees, saying:

"We think it is one of the strengths of the draft Directive that the final decision on entry remains one which an individual Member State makes. It is also important that Member States should continue to adopt a more liberal approach in some areas should they wish. For example, accession States have signed Association agreements with the European Union which provide establishment rights beyond those given in this draft Directive.

"The bilateral and multilateral arrangements are commitments made by individual states and the European Union reflecting the varying economic, political and historical ties. It would not be appropriate to attempt to fit these into a common European approach. Rather, the Directive proposes a common minimum standard of treatment and common consideration factors. To that extent, we do not believe that its proposals are undermined."

  3.6  We asked the Minister to tell us more about the basic rights to be granted to entrants and how they differed from those proposed for long-term resident third-country nationals. The Minister points us to the relevant Articles, but emphasises that, as the text has yet to be discussed, it is difficult to judge what will be accepted without amendment. She explains that the draft Directive does not provide for permanent residence, unlike the long-term residence Directive.

  3.7  In relation to the apparent restriction of the right to vocational training, the Minister understands that the Commission is proposing a separate Directive in this area, and has therefore excluded it from this text.

  3.8  Finally, we asked why the Minister considered that time limits could have an adverse impact on operational procedures. She tells us that her view is born out of experience. Although many applications are dealt with very quickly, some may require a detailed investigation. She continues:

"We would not wish to be forced to divert resources from more pressing priority areas, such as consideration of asylum applications, and believe that a Member State should be free to determine the priority it attaches to each type of application. Legal time limits would impede that. We do, however, think it is important to tell applicants the likely time they will have to wait to have their application determined and that is why we are happy to agree to publish turnaround targets and achievement levels."


  3.9  We thank the Minister for her prompt response. We do not, however, consider that she has given us the detailed explanation of the Government's decision not to participate in the measure for which we asked in our last report. We are also not clear what she means by saying that the UK will "keep the matter under review". Is the implication that UK policy over admissions may change, or that, if certain provisions in the draft Directive were amended in negotiations, the UK would feel able to participate?

  3.10  We consider the time is now right for a debate on the UK's decision not to participate in a number of proposals concerning third-country nationals. We therefore recommend this document for debate in European Standing Committee B, together with the Draft Council Directive on the status of third-country nationals who are long-term residents, on which we report (with more detailed reasons for our recommendation) in paragraph 1 above.

14  (21845) 11529/00; see HC 28-iii (2000-01), paragraph 3 (17 January 2001). Back

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