Select Committee on European Communities Report


9.  APPLICATION OF SOCIAL SECURITY SCHEMES TO EMPLOYED PERSONS, TO SELF-EMPLOYED PERSONS, AND TO MEMBERS OF THEIR FAMILIES MOVING WITHIN THE COMMUNITY (13485/97)

Letter from Lord Tordoff, Chairman of the Committee, to Keith Bradley MP, Parliamentary Under-Secretary of State, Department of Social Security

  Sub-Committee F considered this proposal at their meeting on 4 March and have asked me to write to you about it. The Sub-Committee noted from your explanatory memorandum that the Government is not satisfied that Articles 51 and 235 can be used as a basis for legislation such as this on third country nationals. The Sub-Committee would be grateful for an explanation of your reservations.

  The Sub-Committee is also unclear as to how this proposal would affect the United Kingdom once the Amsterdam Treaty is ratified. Given that the United Kingdom has secured a provision in the Treaty which allows it to retain control of its immigration policy following ratification, how will a proposal such as this affect the United Kingdom once immigration policy is incorporated into the first pillar?

  We would be grateful for any clarification you could give us on these points. Sub-Committee F has agreed to retain the document under scrutiny until they have had an opportunity to consider your response.

11 March 1998

Letter from Keith Bradley MP, Parliamentary Under-Secretary of State, Department of Social Security, to Lord Tordoff, Chairman of the Committee

  Thank you for your letter of 11 March regarding Document 13485/97, concerning the European Commission proposal on the extension of the European Community arrangements concerning social security for migrant workers (Regulations 1408/71 and 574/72) to third country nationals.

  Your Sub-Committee has noted that the Government is not satisfied that Articles 51 and 235 of the Treaty can be used as a basis for legislation on third country nationals and asked for an explanation. Our reservations are based on two concerns.

  First, the Government considers that, in general, the Treaty only applies to nationals of EU Member States and that, accordingly, third country nationals can only be included within the scope of the Treaty when express provision is made to that effect (e.g. Article 59). This is not so here.

  Second, Article 48 of the Treaty, which concerns freedom of movement of workers issues generally, is restricted to workers who are EC nationals. Article 51 has a direct link to Article 48 (ie Article 51 gives practical effect to Article 48 in a social security context). So it is the Government's view that Article 51 too is limited to workers who are EC nationals. I understand that several other Member States take the same view that Article 51 applies only to EC nationals.

  To circumvent this problem, the Commission argue that even if there is a doubt about the application of Article 51 alone, the inclusion of a reference to Article 235 provides a sufficient legal base for this proposal. However, I am aware of no convincing arguments that the promotion of movement of third country nationals can properly be regarded as one of the objectives of the Treaty (prior to the coming into force of the Amsterdam treaty) and so do not consider that use of Article 235 would be appropriate in this instance.

  You also ask how a proposal such as this will affect the UK once immigration policy is incorporated into the first pillar.

  On entry into force of the Treaty of Amsterdam, the UK will not be bound by any measures, inter alia concerning immigration policy, under the new Title IV of Part III of the EC Treaty, except to the extent that the UK chooses to participate. However, the current proposal, if adopted under Article 51 and 235, would continue to apply to the UK once Amsterdam comes into force. Although the proposal makes it clear that it gives no entitlement to third country nationals to enter or reside in another Member Sate, there would nonetheless be an effect on UK immigration policy. Many classes of third country national may only be given leave to enter under the Immigration Rules if they have sufficient resources to prevent them from becoming a burden on public funds (as defined in HC 395 (23 May 1994) as amended by HC 31 (31 October 1996)); and they are given such leave on condition that they will have no recourse to such funds. To the extent Regulation 1408/71 as amended by the proposal would cover some of the benefits classed as public funds for these purposes (which it already will in part) and with respect to the third country nationals concerned, the requirement could not be insisted upon and no such condition imposed.

  The Government's detailed consideration of the Commission's proposal is continuing.

20 April 1998

Letter from Lord Tordoff, Chairman of the Committee, to Keith Bradley MP, Parliamentary Under-Secretary of State, Department of Social Security

  Thank you for your letter of 20 April about the above European Commission Proposal. I shall ensure that your letter is circulated to Sub-Committee F for consideration at their meeting next Wednesday and will let you know the outcome after the meeting.

29 April 1998


 
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