IMMIGRATION: VICTIMS OF TRAFFICKING IN
HUMAN BEINGS (6181/02)
Letter from the Chairman to The Lord Filkin
CBE, Under-Secretary of State, Home Office
Sub-Committee F (Social Affairs, Education and
Home Affairs) considered Angela Eagle's response to my letter
of 11 April (her letters of 20 and 27 May) about the above proposal
at its meeting on 19 June. The Committee was disappointed that
the Government has decided not to participate in the Directive
and invites it to reconsider its decision. Although the Committee
identified a number of weaknesses in the Directive when it previously
considered it, it regards it as a welcome first step both towards
enhancing law enforcement efficiency in the fight against human
trafficking and smuggling, and towards providing a degree of protection
for the victims of these, often cruel, offences.
The Committee found the justification for not
opting in unconvincing. While it accepts that the Directive is
an immigration measure, it is clearly also designed to protect
victims of trafficking who co-operate with the authorities as
witnesses (as well as facilitating the prosecution of traffickers).
The extent of disruption that the measure might cause to UK immigration
controls in unclear, and not further substantiated in Ms Eagle's
letter. It would be surprising if such disruption were caused
by the automatic reflection period (limited to 30 days) and not
by the six month residence permit per se. We would be grateful
if you could provide us with a detailed analysis of the expected
detrimental effects of the Directive on domestic immigration controls.
The Committee was not persuaded by the Government's
justification of its decision on the basis of the perceived ineffectiveness
of the measure. If this is the main reason for not participating,
we would expect the Government to try to raise the standards of
protection by negotiating with a view to opting into the proposal.
It is difficult to see how the Government's concerns will be addressed
in the negotiations in view of its weakened position as a result
of its decision not to opt in.
20 June 2002
Letter from Margaret Hodge MBE MP, Minister
of State for Lifelong Learning and Higher Education
Following a meeting of the Sub-Committee F (Sociate
Affairs, Education and Home Affairs) on 15 May 2002, at which
the above proposal was considered, you asked for comments on the
Free movement of sevices
The Committee welcomes the flexible regime envisaged
for service providers but notes that the provision of services
is somewhat artificially distinguished from establishment through
the use of a 16 week per year threshold. Is the Government satisfied
with the use of this criterion? Articule 5(2), on the other hand,
does not preclude assessment on a case-to-case basis: would this
allow periodic activities exceeding the 16 week threshold to be
classified as services in certain circumstances?
Although time is a criterion used in existing
case law, no specific period is mentioned. The 16 weeks' threshold
seems arbitrary thereof. However, the European Commission has
indicated that this criterion is open for discussion. We are currently
consulting with UK regulatory authorities and professional bodies
on the practicalities and efficacy of the 16 weeks' threshold,
before we reach a formal position.
The 16 weeks' threshold does not preclude an
assessment on a case-by-case basis. This will accord with criteria
in ECJ case law, such as duration of the service provision, its
freguency, regularity and continuity. Therefore, conditions of
full establishment might exist due to activity of less than 16
weeks duration and a provision of service might last more than
In your Explanatory Memorandum, you refer to
the need to strike the right balance between free movement and
public health and safety protection. We would welcome any concrete
examples of how public health and safety might be compromised
by the current draft and any views on how these potential challenges
might be addressed.
Allowing EU citizens to provide services for
16 weeks without formal registration in the UK would make it easier
for visiting EU clinical teams to provide short-term services
in the NHS. This does have some attractions. But, the risk to
patient safety is reala doctor, nurse or other health professional
without a valid home state title can do a lot of damage in 16
weeks. The provision might also have an impact in the area of
consumer protection. An example would be the fitting of gas appliances.
In the UK it is a criminal offence for an individual to fit appliances
without being registered with the regulatory authority (CORGI).
The actions of an unregistered gas fitter could potentially cause
explosion resulting in a numberof fatalities. We think that safeguards
are needed and we propose to take these up during negotiations.
We are considering the following options:
to insist that the individual notifies
the regulatory authority in the host Member State, as well as
the designated contact point in their home Member State, in advance
of providing services; and
to insist that all applications are
considered on a case-by-case basis, in advance of the individual
providing the services;
thus giving the regulatory authority in the host
Member State the opportunity to confirm the individual's credentials
(for example that medics have not been struck off their home register).
In either case, we will probably have to accept,
in the spirit of the provision, that decisions are taken much
more speedily than the three months allowed in cases of establishment.
The European Commission has already indicated
that public health and safety protection is a sensitive area and
that time will be set aside for discussion in Council Working
Group. We will keep you informed of progress during negotiations.
Freedom of establishmentcommon platforms
The proposal innovates in establishing a flexible
mechanism of co-operation between the Commission and the professional
associations in Member States in putting forward "common
platforms", setting out criteria which, if fulfilled by the
applicant's qualifications, would enable the requirement for compensatory
measures by the host Member State to be waived. It is however
unclear how this assessment is going to be made: will it be done
by the Commisssion itself, the Committee referred to in Article
54, or the authorities of the host Member State?
We too are unclear about how common platforms
will be assessed. Article 15(1) suggests the Commission will assess
common platforms on notification by professional associations,
apparently with no input from Member States on their regulatory
authorities. However, a common platform can produce automatic
conditions of recognition only on the basis of a decision in the
Committee on the recognition of professional qualifications, as
referred to in Article 54.
We will be seeking clarification from the Commission
of their intentions under the proposal. We are concerned to ensure
that the UK and its regulatory authorities have the opportunity
to contribute to the determination of common platforms. We will
keep you informed of progress during negotiations.
Freedom of establishmentKnowledge of languages
The Committee welcomes the incorporation of
ECJ case-law in Article 49 of the draft Directive, requiring that
knowledge of the language of the host Member State must be proportionate
to the practice of the beneficiaries' profession. We further note
that, where appropriate, it is for the host Member State to ensure
that the applicant can acquire the necessary knowlege of the language.
What is the cost, if any, of such obligation to the Member States
involved? Is the Government prepared to accept this provision
as it currently stands?
The current sectoral directives make provision
that persons should acquire the linguistic knowledge necessary
to work in the profession in the host country. Whilst it is obviously
in the interests of the public and the potential employer as well
as the professional that she/he speaks the local language well
enough to do the job safely, this provision has not been interpreted
to mean that the UK's authorities should provide, or pay for,
any tuition. We expect the same interpretation to apply under
the new proposal. However, EU nationals are eligible, under the
Learning and Skills Council's criteria, for funded places at colleges.
The Committee on the recognition of professional
The Directive states that this Committee is
there "to assist" the Commisssion and the Commission's
EM adds that the Committee "can also be seized of all questions
concerning the work of the Directive" (p 15). But its exact
tasks are far from clear. You will not in your Explanatory Memorandum
that the full implications of this development will need to be
discussed in detail. We would welcome any further information
on the role, powers and functions of this body.
The functions of the Committee on the recognition
of professional qualifications will be limited by Council Decision
1999/468 of 28 June 1999, which lays down the procedures for the
exercise of implementing powers conferred on the Commission. The
Committee will be responsible for techical up-dating of the Annexes
to the proposed directive; the consideration of the appropriateness
of requests from professional associations for common platforms;
and for consideration of a Member State's request to derogate
from a particular provision of the directive. The Commissions,
in conjuction with the professional bodies, are considering how
information, comments and views can feed into this committee process.
We will keep you informed of the exact roles and procedures of
the Committee, as they are articulated during negotiations.
3 July 2002
Letter from Lord Filkin, Parliamentary
Under Secretary of State to the Chairman
Thank you for your letter of 20 June reporting
the Committee's further consideration of this proposed Directive.
I note the Committee's disappointment at our
decision not to participate in the proposed Directive at this
stage. As you will now, following the publication of a draft Directive,
the United Kingdom has three months to notify the Presidency if
it wishes to opt in to the measure. There is no need to notify
them formally if we do not wish to take part. Where we choose
not to opt in to a measure, we have a further opportunity to apply
to participate once the measure has been finalised.
In her letter of 27 May, Angela Eagle mentioned
that we would be following the negotiations closely, and would
seek to opt in at this later point if our objections to the present
text can be overcome. However, the deadline for opting in having
passed, it is not possible for us to opt in at this stage. As
you are also aware, having opted in, it is not possible to opt
out if we have concerns about the final text, and our concerns
about the present version were such that we concluded it was preferable
not to commit ourselves at this point.
The Committee also sought clarification of the
exact nature of the Government's concerns about the impact of
the proposed measure. Our concerns arise mainly from the very
wide definition of "victim" employed in the draft Directive.
As Article 1 explains, the purpose of the Directive is to introduce
a residence permit for third country nationals who are victims
of offences constituted either by the action to facilitate illegal
immigration or by trafficking in human beings, and who co-operate
with the competent authorities. Article 2 defines "offences
of facilitating illegal immigration" as the offences defined
in Articles 1 and 2 of the Council Directive on defining the facilitation
of unauthorised entry, transit and stay. This means that any adult
illegal entrant whose entry had been facilitated by another person
would be a victim for the purposes of the proposed Directive on
short-term residence permits, and would therefore be entitled
to the automatic 30 day "reflection period". This would
apply even if the illegal entrant had no intention of providing
any information about the facilitatorssomething which would
only become apparent at the end of the 30 daysor had no
useful information, which again could only be assessed at a later
We estimate that around 70-75 per cent of those
entering the United Kingdom Illegally have their entry facilitated
by another person. If it were to their advantage to claim to have
had such assistance, it is likely that even more would claim to
have been helped. However, even taking the 70-75 per cent figure
would mean that in 2000, more than 30,000 people would have met
the definition of a victim for the purposes of the draft Directive.
Unlike the proposed residence permit, the reflection
period applies automatically. There is no assessment of the individual's
potential usefulness as a witness or source of information or
of their willingness to co-operate. As soon as it became clear
that an individual qualified as a victim, any action to remove
them would have to be suspended for the length of the reflection
It is clear why the reflection period has to
operate in this way. However, although it is difficult to estimate
the number of people who might eventually qualify for a short-term
permit under the terms of the proposed Directive, it seems equally
clear that the impact of allowing the majority of illegal entrants
an automatic 30-day reflection period would far outweigh the likely
effect of granting six months leave to remain to those who are
subsequently found to qualify for the proposed permit. The fact
that the reflection period does not create any entitlement to
residence under the proposed Directive does not affect this position.
The fact that the Immigration Service would be unable to take
any action against the illegal entrant for 30 days is disruption
In her letter of 27 May, Angela Eagle mentioned
that the Government shared the doubts expressed by the Committee
about the extent to which the possibility of being given a short-term
residence permit would, of itself, be a sufficient incentive to
persuade victims to bring themselves to notice if they did not
think they might qualify for leave to remain on other, less uncertain,
grounds. However, our primary concern was the effect of the automatic
reflection period on the ability of the Immigration Service to
deal immediately with those victims caught trying to enter the
United Kingdom illegally. It was for this reason that we chose
not to opt in.
I hope this clarification will assist the Committee.
12 July 2002
Letter from the Chairman to the Lord Filkin
Thank you for your letter of 12 July explaining
in more detail the reasons for the Government's decision not to
opt in to this measure. Sub-Committee F considered your letter
at its meeting on 24 July.
The Committee was grateful for this as it provided
a clearer explanation of the Government's objections to this measure
than it had previously received. For the reasons I have already
given, the Committee would still have preferred the Government
to opt in to the measure and negotiate to secure amendments to
meet its concerns, but, as you have explained, the opportunity
to do so has now passed. The Committee has accordingly cleared
the document from scrutiny.
25 July 2002