Select Committee on European Union Forty-Ninth Report


FAMILY REUNIFICATION (8628/02)

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

  Sub-Committee F (Social Affairs, Education and Home Affairs) of the European Union Committee considered this draft Directive at its meeting on 3 July. (I have delayed sending this letter until the Select Committee had considered the draft report by Sub-Committee E referred to below.)

  We noted that it is a further compromise proposal, which presents little difficulty for the UK (which nevertheless has not yet decided whether to opt in to it). The Sub-Committee has no specific comments on the changes from the previous proposal, but there are two broader issues on which it would like to comment.

  First we are concerned about the omission from the proposal of those with subsidiary protection status. Refugees are covered in the Directive and have the right to be joined immediately by their spouses and dependent children, but those with subsidiary protection have not.

  Sub-Committee E (Law and Institutions) of the European Union Select Committee considered this matter in its recent inquiry into the Refugee Qualification Directive. We saw no justification for the distinction between refugees and those with subsidiary protection in this respect, and Sub-Committee F strongly endorses this view. We would be grateful for your comments on this point.

  Secondly, the Sub-Committee is pleased to note that the Government is considering whether to participate in this proposal. It appears that it would present little difficulty for the UK, and we very much hope that the Government will consider with a genuinely fresh mind the case for opting in. To date the Government has opted in to all the enforcement measures but none of the more positive immigration measures, which is hardly consistent with its but none of the more positive immigration measures, which is hardly consistent with its support for a common immigration and asylum policy.

  We will hold the proposal under scrutiny pending your observations on these two points.

22 July 2002

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

  Thank you for your letter of 22 July, requesting further information and advising that the document has been held under scrutiny.

  You expressed concern about the omission of those with subsidiary protection from the proposal and asked for comments on this issue.

  As you will be aware, the European Commission had stated that, whilst it considers that persons in this category must have the right to family reunification and need protection, it recognises that the absence of a harmonised concept of subsidiary protection at Community level constitutes an obstacle to their inclusion in the proposed directive. The Commission had also previously indicated its intention to present a separate proposal on subsidiary protection with provisions for family reunification.

  Provision for the minimum rights and benefits to be enjoyed by the beneficiaries of subsidiary protection status have now been incorporated into the Refugee Qualification Directive. Conditions for granting subsidiary protection to accompanying family members are also included within the scope of this Directive. The Government welcomes this proposal and considers that the draft Directive adequately sets out provision for the family reunification of those with subsidiary protection. These provisions are in line with the UK's current procedure to grant permission to remain to a family member who is already present in the UK.

  The Government's Explanatory Memorandum indicated that the UK had another period of three months from formal publication of the proposal in which to decide whether to opt into the draft Directive. However, since the EM was submitted to the Scrutiny Committees, legal advice has confirmed that, at this stage, the UK does not have a further opportunity to opt into the proposal.

31 July 2002

Letter from the Chairman to Lord Filkin

  Thank you for your letter of 31 July, which Sub-Committee F (Social Affairs, Education and Home Affairs) considered at its meeting on 23 October.

  The Committee was disappointed that the Government was not prepared to press for the inclusion of those with subsidiary protection in the Directive. The fact that the Commission is not in favour of doing so is hardly a conclusive argument.

  The Committee noted that the United Kingdom no longer has an opportunity to opt in to the proposal. We were concerned to learn that the Explanatory Memorandum was mistaken on this point and would be grateful for an explanation of how this came about. It is obviously important that the Government should be absolutely clear about the operation of the opt-in mechanism to every measure to which it applies and would advise Parliament accurately. We hope that the Government will ensure that this is the case in the future.

  We were also concerned that the exclusion from the Directive of those granted subsidiary protection might raise human rights issues as being in breach of the right to family life. We would welcome your comments on that.

  You refer to the Refugee Qualification Directive, which you consider makes adequate provision for the family reunification for those with subsidiary protection. But the draft Directive provides for the grant of subsidiary protection only to accompanying family members. Family reunification goes much wider than that, and the Committee remains firmly of the view that those with subsidiary protection should enjoy the same reunification rights as refugees.

  The Committee may well wish to return to this issue in the context of the Report on that Directive, and in the meantime we will continue to hold the Family Reunification Directive under scrutiny.

28 October 2002

Letter from Lord Filkin to the Chairman

  I am writing in response to Lord Brabazon's letter of 28 October, requesting further information and advising that the document has been held under scrutiny.

  Lord Brabazon expressed concern that the Government's Explanatory Memorandum had been mistaken about the opportunity for a further opt-in and asked for an explanation as to how this came about.

  We had assumed that the revised proposal presented by the Commission was a new proposal and therefore that we would have to decide afresh whether to opt in. We were subsequently informed that this was an amended proposal and therefore that new opt in rights were not triggered. We have now clarified the position for the future in order that we fully understand what constitutes a new proposal; this essentially is indicated by whether the new document has the same or a new inter-institutional number.

  Lord Brabazon also expressed concern about the exclusion of those granted subsidiary protection and asked for comments on whether this would raise human rights issues as being in breach of the right to family life.

  At the time that the draft Directive was presented in January 2000 there was no harmonised definition for persons enjoying a subsidiary form of protection. In September 2000, the European Parliament adopted several amendments which included restricting the scope of the Directive. The Commission, recognising that the absence of a harmonised concept of subsidiary protection at Community level constituted an obstacle to their inclusion in the proposed Directive, accepted this amendment and presented an amended proposal in October 2000. The majority of Member States have also indicated that they are opposed to the inclusion of those with subsidiary protection.

  The Government does not accept that the exclusion of those granted subsidiary protection is a breach of the right to family life. Article 8 of the ECHR guarantees the right to respect for family and private life but permits the interference of this right in accordance with the law and as is necessary in a democratic society. The European Court has not deduced that there is an unlimited right to family reunification of members of the family of a third-country national lawfully settled in a Member State.

  The UK's policy on family reunification supports this view. There is no provision within the Immigration Rules for a family member of a person granted subsidiary protection to come to the UK on the basis of family reunification.

20 November 2002

Letter from Lord Filkin to the Chairman

  Thank you for your letter of 20 November, which Sub-Committee F (Social Affairs, Education and Home Affairs) of the European Union Select Committee considered at a meeting on 11 December.

  We note your explanation why it was mistakenly believed that there would be a further opportunity to decide whether to opt in to this measure and are pleased that the position has been clarified for the future.

  We also note the Government's view that the exclusion from the Directive of those granted subsidiary protection is not a breach of the right to family life under Article 8 of the ECHR. Nevertheless, the Committee remains of the view that people granted subsidiary protection should have the same rights to family reunification as refugees.

  However, this is clearly a matter on which we shall have to agree to disagree, and as the Government has decided not to opt into the measure we have cleared it from scrutiny.

11 December 2002


 
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