Select Committee on European Communities Second Report


38.  RIGHT TO FAMILY REUNIFICATION (COM (99) 638)

Letter from Lord Tordoff, Chairman of the Committee to Barbara Roche MP, Minister of State, Home Office

  Sub-Committee F of the European Union Committee considered the above proposal on 26 January. The members of the Committee are concerned about various aspects of the Government's response.

  We note that Article 63(3) of the EC Treaty, under which this proposal has been brought forward, has to be read in the context of the purpose of Title IV, described in Article 61 as "to establish progressively an area of freedom, security and justice". The UK enjoys the right to opt out of any measures based on Title IV but may, if it so wishes, exercise a right to opt-in. However, we also note that the UK was party to the Conclusions of the Special European Council at Tampere last October, which acknowledge (para 20) "the need for approximation of national legislations on the conditions for admission and residence of third country nationals" and call (para 21) for the legal status for third country nationals "to be approximated to that of Member States' nationals." In the light of these commitments, we would welcome the Government's comments on the following points:

      The Explanatory Memorandum identifies no fewer than nine significant differences from the UK's existing policy which the Government intend to "draw to the attention of the Commission and other Member States". It is the Government's intention to resist change by relying on its opt-out to mitigate the extent of any changes by negotiating a more acceptable text?

      The Commission offers a reasoned defence for the compatibility of the proposals with subsidiarity—in essence, they argue that an area of "freedom, security and justice" is inconceivable without establishing common rules on immigration policy applicable in all the Member States and that this imperative necessitates Community action. The Committee would welcome a fuller explanation of the Government's grounds for disagreeing with the Commission.

      The Government argue that to extend the right of family reunification to Union citizens who have not exercised their right to free movement "in an economic capacity" would "significantly weaken the UK's marriage rules and the efforts which are being made to tighten them up against marriage abuse for immigration purposes". While acknowledging the Government's legitimate concerns, the Committee takes the view that the difference in the rights enjoyed by EU citizens who have exercised their right to free movement and those who have not has become anomalous. Does the Government wish to preserve this anomaly?

      Article 7 provides that the application for reunification should come from the third country national resident in a Member State, whereas under current UK rules the applicant must not be the resident but the "person seeking entry or leave to remain". Our view is that the Directive (Article 1) confers a new right on legally resident third country nationals, and that therefore only the "right-holder" is able to exercise the right conferred. Even under the present proposal, third country nationals outside the EU would have no autonomous right of entry under EU laws.

      Article 9 suggests a common minimum standard should be set for proving that an applicant is in a position to maintain his family, whereas the Government's approach hitherto has been to decide each case individually on its merits. Article 9 is in effect an anti-discrimination clause—it does not itself fix the minimum standards, and in fact the commentary on Article 9 (p.16) specifies that "evaluation of the accommodation is left to the discretion of the Member State". Do you accept that there is the potential for discrimination in the Government's present approach?

      On Article 11, the EM notes that the cost of considering applications overseas is partly funded by the fees charged and that their elimination "might result in a poorer service". This objection seems not to take account of other changes in that application procedure, notably those set out in Article 7 (see above), which would ensure that applications were considered within the UK. We would welcome further explanation of the Government's view.

      The EM states that "Article 12 prohibits those admitted to the Member State as dependent relatives from taking employment or vocational training and requires them to remain dependent upon their sponsor". It goes on, "This is clearly undesirable in settlement cases involving young people. These need to become fully integrated into society and able to support themselves". Article 12 in fact refers to "children of full age" (ie adults) who are defined in Article 5 as "objectively unable to satisfy their needs by reason of their state of health". How could those covered by Article 12 "support themselves?"

      You claim that Article 13 "provides that settlement be given to family members who have been in the UK for more than one year and whose family situation is changed by separation, divorce, or death". Article 13 states that family members in such circumstances "may apply for an autonomous residence permit", while providing that Member States shall accept such applications where there are "particularly difficult situations". Our interpretation is that the judgement of what constitutes such a situation will be left to the Member State, so that the proposed Article will leave the Government complete discretion in granting or refusing rights of settlement in these circumstances.

  The Committee looks forward to receiving your response to these points. In the meantime, the proposed Directive remains under scrutiny.

2 February 2000

Letter from Barbara Roche MP, Minister of State, Home Office to Lord Tordoff, Chairman of the Committee

  I am writing in response to the comments and questions raised by Sub-Committee F, with regard to the Explanatory Memorandum on the Commission's draft Directive on the right to Family Reunification.

  The Government's response to the Committee's comments and questions is set out below.

We note that the Government was party to the Conclusions of the Special European Council at Tampere last October . . . . The Explanatory Memorandum identifies no fewer than nine significant differences from the UK's existing policy which the Government intend to "draw to the attention of the Commission and other Member States". Is it the Government's intention to resist change by relying on its opt-out or to mitigate the extent of any changes by negotiating a more acceptable text?

  The Government's support for the Tampere Conclusions [at which the European Council reiterated that the Member States of the European Union must ensure fair treatment to third country nationals who reside legally on the territory of its Member States], is within the context of the Protocol on the position of the UK and Ireland, annexed to the EC Treaty by the Treaty of Amsterdam. The UK Government secured this Protocol for the express purpose of ensuring that it retained the right to determine its own immigration policies. Whilst the Government supports co-operation within the European Union, it has indicated that its guiding principle will be the maintenance of its frontier controls and effective immigration policies.

  We are taking an active part in the Working Group discussing this draft Directive in order to monitor the UK's position in relation to that of other Member States and will draw attention to the policy issues we have identified. We will exercise our opt-in only if we are satisfied that to do so would not be detrimental to our own immigration controls.

The Committee would welcome a fuller explanation of the Government's grounds for disagreeing with the Commission on the question of subsidiarity.

  A lack of a common approach by all the Member States was recognised as a potential outcome for Title IV measures when the UK and Ireland's Protocol was negotiated. In any event, Denmark's special position under the Treaty means that it cannot be bound by Community law on this measure.

  Several Member States have mirrored concerns identified in the Government's Explanatory Memorandum. It is clear that many countries have difficulty with these proposals and unanimity will not be easy to achieve.

  If, within the three-month period allowed in the Protocol, the Government decides not to exercise its opt-in, this would not prevent us from doing so at a later stage if the Directive which is finally agreed is acceptable and we do not wish to be out of step with measures being operated in other Member States. In the alternative, where difficulties remain, we could choose to shadow selected individual measures through UK Immigration law, whilst not implementing those which would undermine existing immigration policy.

Whilst acknowledging the Government's legitimate concerns, the Committee takes the view that the difference in the rights enjoyed by EU citizens who have exercised their right to free movement and those who have not has become anomalous. Does the Government wish to preserve this anomaly?

  The Government can comment only on any difference as it applies to British citizens: other EC nationals are automatically considered on the basis of Treaty rights in the UK. It is recognised that the situation for British nationals exercising, and not exercising, Treaty rights may appear anomalous, but in reality the two cases are not comparable.

  The rights provided in EC law for EC nationals exercising their freedom of movement under the Treaty are designed to ensure that there are no hindrances put in the way of such freedoms. The rights of residence are couched in those terms and assume that the EC national is likely to return to his country of origin at some time; for that reason, for example, there is not routinely an entitlement to (in UK terms) settlement. Those rights are then extended by analogy to a Member State's own nationals returning after having exercised Treaty freedoms, on the ground that to do otherwise would similarly deter the exercise of the right of free movement. The same reasoning cannot extend to those who have not exercised that right.

  Thus the EU rules reflect different policy concerns from those of domestic immigration law, and the two systems involve a different balance of rights (although in fact the two systems work together in practice: see Sahota [1997] Imm AR 429; Boukssid [1998] Imm AR 270). The provision in the Immigration Rules for family reunion for British Citizens who have remained resident in the UK is based on the proposition that the third country national spouse will settle permanently in the UK; that is why requirements are made as to the commitment to the marriage and to the availability of sufficient maintenance and accommodation.

  The conditions of residence from which the third country national spouse benefits under Community law (five year residence document, with the possibility of applying under the Immigration Rules for indefinite leave to remain after four years) are very different from those from which a third country national spouse would benefit under the Immigration Rules (indefinite leave to remain after one year). It is therefore difficult to compare the two systems and why the requirements for admission under the Immigration Rules for a spouse are more rigorous. The Government could not accept Articles 1-4 of the Directive for this reason.

Article 7 provides that the application for reunification should come from the third country national in a member state, whereas under current UK rules the applicant must not be the resident but the person seeking entry or leave to remain. Our view is that the Directive (Article 1) confers a new right on legally third country nationals, and that therefore only the "right-holder" is able to exercise the right conferred. Even under the present proposal, third country nationals outside the EU would have no autonomous right of entry under EU law.

  Under the Immigration Rules, prior entry clearance is mandatory for all persons seeking admission to the UK for settlement, or in a category leading to settlement. The Rules require that an applicant for entry clearance must be outside the UK and Islands at the time of the application. Our current position is that it is the applicant's case which must be considered, since he or she is the person applying for entry clearance to come to this country. The position of the sponsor in the UK may be relevant to that but legally the sponsor has no "locus" in the consideration of the application.

  The Government does not accept that it is desirable for this position to be changed. Where family reunion is sought, the wishes of the person in the UK may be of the utmost importance, but they cannot be the sole consideration. We must be satisfied that the admission of family members is appropriate and in accordance with the Government's published policies on immigration control. The necessary interviews and enquiries into the claimed relationship of the parties concerned and the personal circumstances of the family members living overseas can only be made effectively overseas. Moreover, settlement entry clearance applications are required to be made in a person's country of origin, or the country where they are ordinarily or habitually resident, to ease the process of obtaining documents and verifying facts.

  The Government cannot accept Article 7 for these reasons.

Do you accept that there is the potential for discrimination in the Government's present approach to Article 9, which suggests a common minimum standard for maintenance and accommodation?

  In the Government's view, the potential for discrimination could only arise if two applications with identical facts were to be decided differently. The Government's present policy recognises that in respect of maintenance and accommodation, applications for family reunion in the UK can rarely be deemed identical. Every family reunion application turns on its own particular facts and must therefore be decided on its own merits, in order to make a fair and balanced decision.

  The Immigration Rules governing admission to the UK contain maintenance and accommodation criteria that require an applicant to have the basic means to support themselves and any dependants without resource to public funds.

  The finances required by each individual will vary according to their purpose of entry, how long they intend to stay and how many dependants they need to support. The Government therefore considers that it is neither possible nor desirable to set a blanket baseline figure for the majority of applications for entry to the UK.

  The draft Directive takes this a step further and seeks to set a minimum standard across the Member States. This concept is even more difficult. Living costs vary not only between Member States but also across the regions of individual countries.

  Whilst the Commentary on Article 9 leaves it to the discretion of Member States to evaluate the adequacy of accommodation, with regard to maintenance it states that the minimum amount of resources required to be sure that the applicant will be able to satisfy the family's needs may not be higher than the minimum income guaranteed by the State. This makes no allowance for the current expenditure of the sponsor, or the projected costs of supporting the family unit.

  In deciding whether or not a sponsor will be able to maintain and accommodate themselves and their dependants in the UK, the Government takes into account both the current and potential financial position of the sponsor and the family unit. Applications need to be considered on this basis in order to be fair to the individuals concerned whilst ensuring that there will not be an additional burden on state funds. In the Government's view this does not sit well with the concept of a common minimum standard across the Member States.

The Government's objection to the prohibition on charging for family reunification applications does not seem to take account of other changes in the application procedure, notably those set out in Article 7, which would ensure that applications were considered in the UK. We would welcome further explanation of the Government's view.

  As explained above, the Government is not prepared to accept that the application for family reunion should be made by the family member living in the UK. As far as fees are concerned, processing applications in the UK would not reduce the amount of work to be processed by diplomatic posts abroad. Indeed, it is possible that there might even be additional resource implications attached to such a suggestion, as there would be a certain amount of duplication of effort in overseeing the application in the UK whilst carrying out interviews and detailed enquiries overseas.

  As far as applications for variation of leave in the UK are concerned, I invite the Committee's attention to the fact that section five of the Immigration and Asylum Act 1999, which makes provision for the Secretary of State to charge fees for processing applications, is scheduled for implementation in October 2000.

How could those covered by Article 12 (children of full age "objectively unable to satisfy their needs by reason of their state of health") "support themselves"?

  Under the Immigration Rules, persons admitted to the UK on the basis that they are living in compelling compassionate circumstances overseas and that they are wholly or mainly dependent upon their UK based sponsor are given settlement on arrival and are thereby entitled to study or take employment. In the case of elderly dependants the sponsor is required to sign a five year undertaking to support the applicant so that they do not become a burden upon public funds. Because of their age they are not likely to find employment.

  However, the situation for young dependants is somewhat different. The fact that a person is incapable for whatever reason (including their state of health) of caring for themselves overseas does not necessarily mean that they would be unable to do so in the UK. I am not satisfied that Article 12 clearly restricts the prohibition on young people taking employment or vocational training to those forced to be dependent by reason of their ill health; the commentary refers to applicants who have been eligible for reunification solely on the basis of their dependence on the applicant. This is an issue which is being clarified by the Working Group.

  My concern is that where a third country national has been admitted for settlement to the UK by reason of his or her dependency on their UK based sponsor, we should not prevent them from taking more control of their own lives where the opportunity arises. If their sponsor should cease to be able to care for them, it would be far better if they were equipped to care for themselves to some degree rather than becoming a burden on the State.

Our interpretation of Article 13 (applications for autonomous residence for family members who have been in a Member State for more than a year and whose family situation is changed by separation, divorce or death) is that the judgement of what constitutes such a situation will be left to the Member State, so that the proposed Article will leave the Government complete discretion in granting or refusing rights of settlement in these circumstances

  The commentary refers to an obligation to issue an autonomous residence permit after one year's residence where the family member is in a particularly difficult situation. It is difficult to see how the quoted examples could not be regularly presented as "particularly difficult situations". The Government's interpretation is that in practice Members States will not have discretion over when an autonomous residence permit should be granted. This is in direct conflict with present policy and is not acceptable.

8 March 2000

Letter from Lord Tordoff, Chairman of the Committee to Barbara Roche MP, Minister of State, Home Office

  Thank you for your full response to my letter of 2 February regarding the above proposal. Sub-Committee F of the European Union Committee has now looked again at the proposal and at your answer. The members of the Committee are unconvinced by the detailed arguments put forward by the Home Office, and feel that within the context of Title IV the proposed Directive could make a positive contribution to the Community's objective of establishing "an area of freedom, security and justice". Nevertheless, we accept that your criticisms of the proposal represent current Government policy, and therefore we do not wish to challenge them further at this stage. However, we remain concerned about some of the broader issues raised:

    Under the Protocol on the position of the United Kingdom and Ireland, the United Kingdom is required to notify the President of the Council "within three months after a proposal or initiative [under Title IV] has been presented to the Council, . . . that it wishes to take part in the adoption and application of any such proposed measure". Article 3.2 of the Protocol, however states that if agreement cannot then be reached within a "reasonable time", the other Member States may proceed without the United Kingdom. This draft Directive is dated 1 December 1999. Has the United Kingdom notified the President of the Council that it wishes to take part in the adoption of this measure?

    If the answer to this first question is yes, then we remain unclear as to the Government's strategy. Your letter contains a full account of the current policies of the United Kingdom on family reunification, and offers no hint that the Government is willing to change these policies. Would the Government contemplate opting in to a proposal which would entail any change in existing policies? If not, what objective have the Government set themselves in their negotiations with those Member States who are bound by Title IV measures?

    We remain puzzled by the Government's interpretation of subsidiarity. The "Protocol on the Application of the Principles of Subsidiarity and Proportionality" states that the subsidiarity principle will be met when "the objectives of the proposed action cannot be sufficiently achieved by Member States' action in the framework of their national constitutional system and can therefore be better achieved by action on the part of the Community". We note that all measures under Title IV are proposed with the intention to establish "an area of freedom, security and justice", in which the rights of third country nationals will be safeguarded (Article 61(b)). In this context, we cannot see how the Commission's objective to create "common criteria" for the right to family reunification, giving improved certainty as to the law and ensuring that third country nationals are less likely to select their country of destination purely on the basis of more generous conditions available there, can be achieved by Member States acting independently. The Protocols enjoyed by the United Kingdom, Ireland and Denmark have no bearing on the issue as measures under Title IV are addressed either at those Member States who have no Protocol or at those who choose to opt in to the measure. We would welcome a fuller explanation of the Government's grounds for arguing that the current proposal does not comply with the principle of subsidiarity.

  The Committee looks forward to receiving your response to these points. In addition, we note that the Government has discussed the issues raised by this proposal with a range of NGOs. Along with the House of Commons Scrutiny Committee we ask that we may be kept informed of the progress of these consultations, and in due course of the tenor of any comments submitted to the Government. In the meantime, the proposed Directive remains under scrutiny.

23 March 2000

Letter from Barbara Roche MP, Minister of State, Home Office to Lord Tordoff, Chairman of the Committee

  I am writing in response to your letter of 23 March, in which you raise further questions from Sub-Committee F with regard to the Government's position on the Commission's proposal for a Council Directive on the right to Family Reunification.

  The Government's response to the Committee's questions is set out below.

This draft Directive is dated 1 December 1999. Has the United Kingdom notified the President of the Council that it wishes to take part in the adoption of this measure

  The Commission proposal was formally presented to the European Parliament and the Council on24 January 2000. We have three months from such presentation of the proposal (until 24 April) in which to decide whether we wish to opt into these proposals. A letter advising the Committee of the Government's decision will follow shortly.

Would the Government contemplate opting into a proposal which would entail any change in existing policies? If not, what objective have the Government set themselves in their negotiations with those member States who are bound by the Title IV measures

  The Government has not made a pre-emptive decision never to opt into any proposals or category of proposals.

  Where adopting a proposal would entail a change in existing policies, we might still decide to exercise our opt-in if the proposal met with immigration objectives and inclusion in the measures would be in the best interests of the United Kingdom. Where a proposal raises fundamental policy concerns, we are not likely to exercise our opt-in, but this would not preclude us from broadly aligning ourselves with the policies of our fellow Member States.

  Before opting into any proposals, we would need to be satisfied that to do so would not be detrimental to the maintenance of our frontier controls and our ability to set our own immigration policies. Against this background, each proposal would be considered on its merits.

We would welcome a fuller explanation of the Government's grounds for arguing that the current proposal does not comply with the principle of subsidiarity.

  We do not dispute that Union Institutions are entitled to engage in proposals aimed at improving the integration of third country nationals into the societies of their Member States of residence. However, we are not convinced that, in the case of the present proposal, the Commission has adequately demonstrated, including by means of qualitative or quantitative indicators that its objectives cannot be met by action at the level of the Member States.

  The Committee has also asked to be informed of the progress of the Government's consultations with NGOs. I attach a copy of JCWI's report on the Government's Explanatory Memorandum together with my reply and a copy of the comments received from UNHCR (not printed). The next meeting with NGOs is scheduled for 2 May.

18 April 2000

Letter from Barbara Roche MP, Minister of State, Home Office to Lord Tordoff, Chairman of the Committee

  I refer to the Government's Explanatory Memorandum of 10 January on the Commission proposal for a Council Directive on the Right to Family Reunification.

  I am writing now to let you know that the Government has decided not to opt into this proposal.

  We have given full and careful consideration to the UK's position and have taken into account all the comments made by NGOs and the Scrutiny Committees.

  We reached the decision not to opt into the proposal because of concerns that doing so would remove the UK's ability to formulate and adjust policies in relation to family reunification as a matter of domestic law.

  I can, however, assure the Committee that in remaining outside this proposal it is not the Government's intention that the UK should be seriously out of line with our European partners in this important area of immigration policy. For that reason we shall continue to participate fully in discussion of the text.

26 April 2000

Letter from Lord Tordoff, Chairman of the Committee to Barbara Roche MP, Minister of State, Home Office

  Thank you for your letter of 18 April, responding to my letter of 23 March. I am grateful for your clarification of the Government's approach to Title IV measures. Thank you also for your letter of 26 April, informing me that the Government has decided not to opt in to the proposed measure. Sub-Committee F considered this correspondence at its meeting on 17 May and has asked me to raise the following concerns.

  First, the Committee noted that a briefing supplied to UK members of the Economic and Social Committee set out the Government's current position in rather more detail than your letter of 26 April. The briefing alludes to some of the options open to the Government—either to opt in to a final agreed Directive, should it be acceptable, or to "shadow selected individual measures through UK Immigration law". While the Committee welcomes the assurance that the UK will not be seriously out of line with our European partners, the fact that the Government, while opting out of a Community proposal, may nevertheless contemplate adopting the substance of that proposal by means of domestic legislation, is clearly a matter of some importance. The Committee would be grateful to receive some indication of the elements of the present proposal which the Government may be minded to take over into domestic law.

  Secondly, you state that the Government intend to "participate fully in the discussion of the text", despite having no say in the final adoption of the measure. What is the Government's goal in these discussions—to monitor progress, or to influence the final agreed text? If the latter, I would welcome some further indication of the extent to which, and how, the Government would wish to see the text amended.

  Given that the Government has decided not to exercise its right to opt into the proposed measure, the Committee has agreed to clear it from scrutiny. However, the Committee expects to be kept informed to the progress of negotiations. Any revised text should be deposited together with a new Explanatory Memorandum in accordance with the usual scrutiny procedures.

18 May 2000

Letter from Barbara Roche MP, Minister of State, Home Office to Lord Tordoff, Chairman of the Committee

  I am writing in response to your letter of 18 May, in which you raise further questions from Sub-Committee F with regard to the Government's position on the Commission's proposal for a Council Directive on the right to Family Reunification.

  The Government's response to the Committee's questions is set out below.

While the Committee welcomes the assurance that the UK will not be seriously out of line with our European partners, the fact that the Government, while opting out of a Community proposal, may nevertheless contemplate adopting the substance of that proposal by means of domestic legislation, is clearly a matter of some importance. The Committee would be grateful to receive some indication of the elements of the present proposal which the Government may be minded to take over into domestic law.

  Until a final text is agreed, it is not possible to identify which particular measures might be suitable for adoption into domestic legislation. In general terms, consideration will be given to "shadowing" any agreed measures which are not already covered by our immigration laws, provided that they would not undermine existing immigration policy. We will keep Parliament informed about any measures we might seek to adopt.

Secondly, you state that the Government intend to "participate fully in the discussion of the text", despite having no say in the final adoption of the measure. What is the Government's goal in these discussions—to monitor progress, or to influence the final agreed text? If the latter, I would welcome some further indication of the extent to which, and how, the Government would wish to see the text amended

  Our intentions are twofold. First to monitor the progress of the draft Directive and to evaluate the UK's position in relation to the final agreed text. Secondly, to assist where possible in negotiation of amendments to the text in an effort to find acceptable solutions to the difficulties raised by other Member States. This could be of particular benefit since many Member States have expressed policy concerns similar to those identified in our own Explanatory Memorandum.

  I confirm that any revised text of the draft Directive will be deposited with a new Explanatory Memorandum in line with usual scrutiny procedures.

5 June 2000


 
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