Joint Committee on Statutory Instruments Twenty-Second Report


APPENDIX II

Memorandum by the Home Office

IMMIGRATION (EUROPEAN ECONOMIC AREA) (AMENDMENT) ORDER 1997

(S.I. 1997/2981)

The Joint Committee has requested a memorandum which addresses the following point.

Article 2(a) substitutes a new head (ii) in the definition of "student" in Article 6(2)(h) of the 1994 Order in terms of a person who provides the required assurance about resources to the Secretary of State "by means of a declaration or by such alternative means as [the student] may choose that are at least equivalent". Explain what alternative means to a Declaration are contemplated and in what the "equivalent" is to consist.

The new head (ii) in the definition of "student" in Article 6(2)(h) of the Immigration (European Economic Area) Order 1994 is designed to reflect more closely the requirements of Article 1 of Directive 93/96/EEC on the right of residence for students. Article 1 of that Directive provides inter alia that

    "... Member States shall recognise the right of residence for any student who is a national of a Member State and who does not enjoy that right under other provisions of Community law ... where the student assures the relevant national authority, by means of a declaration or by such alternative means as the student may choose that are at least equivalent, that he has sufficient resources to avoid becoming a burden on the social assistance system of the host Member State during their period of residence, provided that the student is enrolled in a recognised educational establishment for the principal purpose of following a vocational training course there and that he is covered by sickness insurance in respect of all risks in the host Member State."

The existing text of the 1994 Order has been construed as entitling the Secretary of State to require proof that the criterion of sufficient resources is met. The Directive, on the other hand, does not permit Member States to require proof of sufficient resources. Instead, it enables them only to seek an assurance, which the student is permitted to give either by means of a declaration or by such alternative means as the student may choose that are at least equivalent. Accordingly, the new head (ii) has been drafted to reflect what may be required of a student under the Directive.

  The substance of the requirement is to give an assurance of sufficient resources. The minimum assurance contemplated is a personal declaration by the student. If alternative means are chosen by the student, they clearly have to give the same or greater level of assurance as such a personal declaration. Whilst ultimately the matter is one for the European Court of Justice to determine, another means the Secretary of State considers would give an equivalent assurance would be a declaration by an apparently reputable person having knowledge of the student's circumstances, as to the student's resources being sufficient. Giving a higher level of assurance would be actual evidence of resources such as bank statements; and undertakings by sponsors in this jurisdiction to provide upkeep. However, the Secretary of State would be prepared to consider any other means of assurance provided by a student against the test set by the Directive and now reflected in the Order.

3rd February 1998


 
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