Select Committee on European Union Forty-Ninth Report


FREE MOVEMENT: RIGHTS OF CITIZENS AND FAMILY MEMBERS (10572/02)

Letter from the Chairman to Bob Ainsworth, Esq, MP, Under-Secretary of State, Home Office

  Sub-Committee F (Social Affairs, Education and Home Affairs) considered the proposal at a meeting on 27 November. We considered it in the light of both your Explanatory Memorandum and the letter of 29 November 2001 which Angela Eagle Sent us in response to our request for a detailed regulatory impact assessment of the draft Directive.

  The Committee regards this proposal as of great significant in so far as it consolidates and clarifies free movement rights derived from Community law and the case law of the European Court of Justice, taking into account the Treaty provisions on European Union citizenship. While we understand your concerns about the pressure on national systems of social security and immigration control, posed in particular by the broad definition of family member in the text, we believe that the proposal must be viewed in the light of the need to facilitate to the greatest extent possible the movement of EU citizens across the whole EU territory and to ensure the effective exercise of Treaty rights. Against this background we would like to raise with you the following points.

Social security

  Your fears regarding a potential increase of social security expenditure in view of the extension of the definition of the family are understandable. However, in her letter Ms Eagle says that "exact costs associated with the proposed new definition have not been calculated" and no account appears to have been taken of the countervailing contributions that family members of an EU national may make into the national social security system. Moreover, the fact, in accordance with Article 21(2), social assistance is granted only to permanent residents, seems to have been disregarded. It would be helpful to know in this context whether the UK applies the normal waiting period of four years before granting permanent residence to EU nationals.

  Regarding students, we note that Article 7(c) as currently drafted accurately mirrors existing legislation (Article 1 of Directive 93/99) and case law (Commission v. Italy, C-424/98). It would therefore not be compatible with Community law to include in the Directive a requirement—as advocated in Ms Eagle's letter—for students to have sufficient resources to be self-sufficient. As regards the point you raise in your Explanatory Memorandum on the extension of Article 21(2) to cover student loans and the point Ms Eagle made on the provision of social assistance to students, we similarly note that Article 21(2) is an exact transposition of Article 3 of Directive 93/96. EC law does not expressly prohibit the granting of student loans (unless they are considered the same as maintenance grants). Furthermore, in its landmark ruling of Grzelczyk (C-184/99), the Court stated that there are no provisions in this Directive that preclude those to whom it applies from receiving social security benefits (paragraph 39 of the judgment); and that the seeking of social assistance benefits by a student in the host Member State must, in no case, have as an automatic consequence the withdrawal or non-renewal of the student's residence permit (paragraph 42 and 43). It would appear to be inconsistent with this ruling to exclude students from the granting of social assistance available to lawfully resident EU nationals.

Immigration control

  Again your concerns, especially regarding the broad definition of family in the proposal, are understandable. However, we believe that the Directive's provisions must be viewed in the light of the need to recognise the establishment of EU citizenship and to facilitate the exercise of rights of movement, entry and residence of EU nationals across the Union. Instances where the draft extends current rules would contribute significantly towards the effective exercise of these rights, by facilitating movement and reducing formalities.

  We believe that the Government takes too narrow and negative a view of the possible immigration consequences of this proposal. Ms Eagle's letter refers to cases of EU nationals with forged documents. It is unclear why specific mention is made of these few cases (which would occur irrespective of any amendment to EU law) and not the perfectly legal movement of millions of EU nationals within a single market. The same narrow approach characterises Ms Eagle's analysis of the consequences of the extension of the definition of family. Instead of addressing the effective exercise of movement rights by EU nationals and their family members, the letter focuses on the scenario of failed asylum seekers marrying UK nationals. Again it is not clear why such marriages—and no indication is offered as to how widespread this practice is—would render the Directive too burdensome.

  In seeking to maintain existing immigration controls of third country nationals the Government does not appear to have taken sufficient account of the jurisprudence of the European Court of Justice in relation to the members of the family of an EU citizen exercising Treaty rights. Ms Eagle's letter expresses concern about the Directive's provisions enabling the retention of the right of residence by family members in the event of departure of the Union citizen or divorce (Articles 12 and 13). Both provisions, however, require family members to engage in gainful activity or have sufficient resources to support themselves and their family and to avoid becoming a burden on the national social assistance system.

  Furthermore, the Court, in the recent case of Baumbast and R (C-413/99), considered the application of Article 12 of Regulation no 1612/68 to a parent who is the primary carer of children having a right to reside in a host Member State in order to attend general educational courses. It held that the parent was entitled, irrespective of his nationality, to reside with his children in order to facilitate the exercise of that right, notwithstanding that fact that the parents had meanwhile divorced or that the parent who had the status of EU citizen had ceased to be a migrant worker in the host Member State (paragraph 75, emphasis added). In its reasoning, the Court specifically referred to the fundamental right of respect for family life contained in Article 8 of the European Convention on Human Rights (paragraph 72), which is also recognised in Community law.

  In another recent case, the Court read Article 49 of the Treaty—on the freedom to provide services—in the light of this right. It held that the decision of the Secretary of State to refuse leave to remain to a Philippines national married to a UK national was in breach of Community law because, although the UK husband was resident in the UK, he was providing services in other Member States (Carpenter, C-60/00). In both cases the Court read EC law freedoms in the light of the fundamental right of respect for family life, and in effect overturned national immigration decisions.

  We would welcome your comments on these points. In the meantime, the Committee will retain the document under scrutiny.

3 December 2002

Letter from Lord Filkin, Parliamentary Under Secretary of State to the Chairman

  Thank you for your letter of 3 December about this draft Directive

  I should start by advising you that the Greeks have confirmed that the Free Movement Working Group will meet regularly during their Presidency with a view to reaching political agreement at the Competitiveness Council in May 2003.

  Turning now to your letter, you suggested that the government is compromising the concept of EU citizenship by focusing too heavily on national interests. Let me assure you that this is not the case. We fully support the introduction of the draft Directive, because it will simplify administrative formalities for EU citizens and their family members and give them increased rights and protections when they move between members States. This will help bring EU citizens closer together and, as recognised by the Cardiff European Council, bring the EU closer to people by making it more open, understandable and relevant to their daily lives.

  In negotiations to date my officials have supported a number of provisions in the draft Directive which would extend the rights of EU nationals and their family members beyond those in current EC law in the interests of EU citizenship. For instance, the draft Directive proposes that the direct relatives of an EU national student or their married or unmarried partner should be able to join the student in a host Member State. Current EC law only provides for an EU student's spouse and children. We have not opposed the principle that EU national students should have these increased rights of family reunification. Although we and other Member States feel that there should be a dependency requirement for these more distant family members. Similarly, we have agreed with a proposal in the draft Directive which would allow students to be granted permanent residence in the UK after four years, even though this goes beyond current provisions in the UK for both EU and foreign nationals.

  A balance, however, needs to be struck between EU citizenship and national interests. While we have made concessions during negotiations in the interests of promoting the concept of EU citizenship, I cannot support measures in the draft Directive which would lead to undue public expenditure costs or create routes for foreign nationals to circumvent our immigration controls.

  I do have real concerns that certain aspects of the draft Directive would lead to increased abuse of the kind that Angela Eagle set out in her letter of 29 November 2001. Angela mentioned these abusive cases to provide concrete examples of the current areas of abuse. While we have no definite statistics, our experience shows that abuse of EC law by third country nationals is a growing problem. I consider that this abuse will increase if certain provisions in the draft Directive are upheld, such as widening the definition of family members (as set out in Article 2 of the draft Directive) and the retention of the right of residence for family members (as set out in Article 13 of the draft Directive). You mentioned the ECJ cases of Baumbast and Carpenter. We have recently implemented these rulings in the UK and we would not oppose provisions in the draft Directive which implemented them. I feel, however, that Article 13 of the draft Directive goes beyond these rulings of the ECJ, which is why I cannot support this Article as currently drafted.

  I understand that Baroness Hollis will be replying separately in the New Year to address the points that you have raised about social security issues.

17 December 2002

Letter from Malcolm Wicks, Parliamentary Under Secretary of State for Work and Pensions to the Chairman

  Thank you for your letter of 3 December 2002 about this draft Directive. As indicated in Lord Filkin's reply to you of 17 December, I am responding to the social security issues, which you raised.

  As Geoffrey Filkin wrote, the Government is seeking to strike a balance between EU citizenship and national interests. This applies to social security issues also.

  I appreciate your understanding of our concerns about the potential increase of social security expenditure involved in the extension of the definition of family. I should emphasise that our concern is with means-tested benefits rather than contributory benefits. The contributions that family members make into the national social security system will earn them entitlement to contributory benefits. We have no problems with this. Our concern is with non-contributory benefits which are paid from taxation, and which would place a burden on UK public expenditure if more family members were to claim them.

  I should make it clear that Article 21 of the draft Directive does not say that social assistance is granted only to permanent residents. It states that:

    "the host Member State shall not be obliged to confer entitlement to social assistance on persons other than those engaged in gainful activity in an employed or self-employed capacity or the members of their families, nor shall it be obliged to award maintenance grants to persons having the right of residence who have come to the country to study".

  In practice, UK benefits systems do not distinguish between those who do and those who do not have permanent residence status, and are thus more widely available than the Directive requires. The UK does, however, restrict student maintenance to permanent residents.

  The UK currently grants permanent residence to European Economic Area (EEA) nationals and their family members, providing they have been in the UK for four years exercising Treaty rights other than as a student. The proposals in the draft Directive are very similar to the current situation in the UK, and would bring our domestic provisions under EC law, but would also extend the right of permanent residence to students. We have not opposed this, in the interests of supporting the spirit of the draft Directive.

  We welcome the fact that so many students from other European Countries choose to study in the UK. That is a testimony to the quality of our higher education. However, it is not unreasonable to seek to ensure that they do not place an undue burden on UK public expenditure, insofar as this aim is consistent with Community law.

  You wrote that Article 7(c) of the draft Directive accurately mirrors existing legislation and case law and that it is therefore not compatible with Community law to include a requirement that students must have sufficient resources to be self-sufficient. I would respectfully wish to differ. As far as the ruling in Commission v. Italy is concerned, we read this as only concluding that Italy were wrong to require the student to have a specific amount of resources evidenced by documentation rather than accepting his declaration that he had sufficient resources.

  The Grzelczyk case concerned a student who made a declaration that he had sufficient resources and was granted residency rights on that basis. He later made a claim for Belgian means tested benefit and was refused even though this benefit was available to Belgian students without sufficient resources. The European Court of Justice said that he had to be dealt with in the same way as a Belgian student. The Court made clear that a student's financial position might change after the initial declaration is made. It also said that the Member State could withdraw or not renew a residence permit but that it should not do so as an automatic consequence of the person having recourse to social assistance. However, this does not overturn the sufficient resources requirement.

  We have therefore been continuing to push for sufficient resources to be a condition of the right of residence for students.

  On student loans, Article 21(2) of the draft Directive is currently written in similar terms to the existing Article 3 of Directive 93/96 in so far as it relates to maintenance grants. We interpret this as meaning that the UK would not be obliged to pay student loans to people not permanently settled in the UK. This was a view supported by EC Education Commissioner Mrs Vivienne Reding in her reply of 27 July 2000 to European Parliamentary Written Question P-2159/00 of 22 June 2000:

    "At this stage of development of Community law, Member States are competent to establish the modalities of student support (grants, student loans or any other form of financial help). They must however respect the principle of equality of treatment which means that the university or college where a citizen of the Union wishes to study must accept them under the same conditions as nationals. Therefore, if a grant is paid to nationals of the Member State where a citizen of another Member State wishes to study to cover course fees (tuition fees), he or she must be able to receive it. However, the principle of equality of treatment as interpreted by the case law of the Court of Justice does not apply to support for maintenance and in the case of the United Kingdom to grants, student loans and supplementary grants, intended to help students pay their daily living expenses, unless the student is, at the same time, a migrant worker or a family member of a migrant worker."

  However, we are concerned that this should be put beyond doubt in the draft Directive, as it would have serious implications for expenditure on student loans if they were available to students throughout the European Union. It would also be unfair if students from abroad had access to UK student loans, while students from the UK had no corresponding entitlement to grants in those EU countries, which do not offer loans

  I am very grateful to the Committee for drawing these points to our attention, and for giving me the opportunity to clarify our position.

16 January 2003

Letter from the Chairman to the Lord Filkin, CBE Under-Secretary of State Home Office

  Thank you for your letter of 17 December about this Directive. I am also grateful to Malcolm Wicks for his letter of 16 January about the social security aspects of the proposal Sub-Committee F (Social Affairs, Education and Home Affairs) of the Select Committee on the European Union considered both letters at a meeting on 19 February.

  On the immigration aspects we were pleased to hear that the United Kingdom had supported a number of provisions in the draft Directive which would extend the rights of EU nationals and their family members beyond those in current EC law, particularly in relation to students. But, in the absence of hard evidence, we were not persuaded that the risk of abuse of EU law by third country nationals to which you refer outweighs the overall objective of facilitating the free movement of EU citizens and their families.

  Secondly, you refer to the fact that the United Kingdom has implemented the ECJ rulings in the cases of Baumbast and Carpenter. We would be grateful for clarification of precisely how they have been implemented and in what respect you believe that Article 13 of the draft Directive goes beyond them.

  As regard the points raised in Mr Wicks's letter, we note that the Government's concern is with means tested rather then with contributory benefits. It clearly would be a matter of concern if the proposals led to a substantial increase in public expenditure, but we have seen no evidence as yet that this would be the case. Have the Government undertaken any assessment of the possible economic effects of the proposal, taking into account contributions that some family members are likely to make through the tax and national insurance system?

  It is true that, as Mr Wicks points out, Article 21(2) does not say that social assistance is granted only to permanent residents but it does provide that Member State are not obliged to confer social assistance benefits on persons other than those engaged in gainful activity or their family members prior to their having acquired the right of permanent residence. Social assistance to non-permanent residents is granted only if they or their family members work. In the UK, however, as Mr Wicks confirms, benefits are more widely available than the Directive requires as they are not restricted to permanent residents.

  On the question of sufficient resources, we are not disputing that there is (and should be) a requirement that prospective students should have sufficient resources to enable them to pursue their studies. But our understanding is that under existing Community law Member States may not go beyond requiring a formal declaration or equivalent as evidence that the person concerned has sufficient resources. To attempt to include a more stringent requirement in the Directive would therefore be contrary to existing law.

  On student loans, as Mr Wicks says, Article 21(2) of the draft Directive mirrors Article 3 of Directive 93/96 insofar as it relates to maintenance grants. In view of the Commission's interpretation, it seems unnecessary to change the provision, but we accept that it would be undesirable for the UK to be obliged to pay student loans to people not permanently settled in the UK, and we see no objection to the Government's attempting to put the matter beyond doubt.

  We would be grateful for your and Malcolm Wick's comments on the points raised above. In the meantime we shall continue to keep the draft Directive under scrutiny.

20 February 2003

Letter from Lord Filkin to the Chairman

Thank you for your letter of 20 February about this draft Directive. I have noted your comments with interest.

  You asked for details of how the ECJ rulings of Baumbast and Carpenter have been implemented in the UK. Following the Baumbast judgment we changed our practice to ensure that, where children of EU migrant workers have a right to remain in the UK for the purpose of continuing their education, their third country national parent carer also has a right to remain if that is necessary for the exercise by the children of their rights. The Immigration (European Economic Area) (Amendment) Regulations 2003, which give effect to the ruling, are due to be laid in the next few weeks.

  Following the Carpenter judgment we changed our practice to ensure that, a third country national family member of a British citizen providing a significant proportion of services to other Member States would not be refused leave to enter or remain in the UK, if their absence would unjustifiably interfere with the service providers' right to family life. This ruling does not require any changes to immigration legislation. The Immigration Directorate Instructions will shortly be amended to reflect this ruling.

  Article 13 provides that the third country national spouses who divorce an EU national shall not lose their right of residence in a Member State if the marriage has lasted for at least five years, including one year in the host Member State; if the spouse has custody of the EU nationals' children; or if this is warranted by particularly difficult circumstances. This last provision in particular would give greater rights than those set out in the Baumbast and Carpenter rulings, which we consider could lead to increased immigration abuse by third country nationals wishing to circumvent domestic immigration law. We are therefore seeking removal or extensive redrafting of Article 13 to meet our concerns.

  The Government has not carried out a full assessment of the possible economic effects of the proposed Directive. These would be difficult to quantify, particularly as we are facing a major enlargement of the EU from 1 May 2004. Nevertheless, we remain concerned that the overall effect of the Directive would be to increase the expenditure of the Department for Work and Pensions.

  I am pleased that the Select Committee agrees with the points made by Malcolm Wicks in his letter of 16 January about Article 21(2) of the draft Directive, both in interpreting what it means in relation to social assistance, and also the need to ensure that the UK is not obliged to pay student loans to people not permanently settled here. The European Commission's statement on the latter point has been helpful but, as you wrote, we need to put this beyond doubt, particularly as in any future cases the ECJ will rule on the basis of the Directive rather than statements by the Commission.

  I welcome the Committee's support of the principle that prospective students should have sufficient resources to enable them to pursue their studies in the UK. I should emphasise that we are not seeking a more stringent position than already exists under Community law. Although the ECJ has ruled on how Member States can require evidence of sufficient resources, it has not struck down our position on the need to have sufficient resources condition.

  As this proposal is subject to the co-decision procedure, I would like to use this opportunity to update you on proceedings on the First Reading of this draft Directive in the European Parliament. On 11 February, the rapportuer, Mr Giacomo Santini presented a report containing 93 amendments on behalf of the Committee on Citizens' Freedoms and Rights, Justice and Home Affairs. Twenty more amendments were also tabled on behalf of the political groups. The report called for a broader definition of the family as well as better safeguards against the loss of existing residence rights. The report was adopted with a clear majority.

  In particular, the amendments seek to expand the definition of a family member to include same-sex spouses, registered partners and unmarried partners, irrespective of sex, if the host and/or home country treats those couples in the same way as married couples. They call on Members States to make it easier for other family members to enter or reside in the country on serious health or humanitarian grounds. In addition, the report calls for the spouse to have the right to an independent legal status and work permit.

  The report also states that the right of residence should not be revoked in the event of illness or accident. Nor should the death of an EU citizen affect the residence rights of that person's family members, whether they are nationals of a Member State or not. In the case of divorce, a spouse who is unemployed must not be denied the right of permanent residence. If a spouse is not a national of a Member State, then divorce may lead to an end to the right of residence if the marriage has lasted less than two years (compared to five years in the Commission proposal). The report stresses that clear time limits should be set, so that absences for study, vocational training or work assignments should not exceed one year. Finally, the report proposes postponing the date from which all Member States must apply the Directive by one year to 1 July 2004.

  We do have concerns with some of the amendments proposed by the European Parliament, in line with our view that there is a balance to be struck between EU citizenship and national interests. The Commission intends to produce a revised version of the draft Directive, which will incorporate those amendments it can accept, in the next few months. The Commission have already indicated that they will not be able to accept those amendments which seek to expand the definition of family member. The Commission's new text will then be considered by the Council and we shall continue to seek amendment of the text to meet our concerns as set out in previous correspondence.

7 March 2003

Letter from the Chairman to the Lord Filkin

  Thank you for your letter of 7 March about this draft Directive, which was considered by Sub-Committee F (Social Affairs, Education and Home Affairs) of the Select Committee on the European Union at their meeting on 26 March, and for your helpful explanation of how the ECJ judgments in the cases of Baumbast and Carpenter have been implemented in the United Kingdom.

  We are disappointed that the Government have not carried out an assessment of the possible economic effects of the proposed Directive, as this would help to resolve the argument as to whether the increased costs to the public purse would be outweighed by the economic benefits resulting from greater movement within the EU of EU citizens and their family members.

  We were grateful for the information you provided about the proceedings in the European Parliament. We look forward to seeing the Commission's revised draft of the Directive, when it is deposited; and on the basis that there will be a further opportunity for scrutiny then we are content to clear the current document from scrutiny.

27 March 2003


 
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