Immigration (European Economic Area) Order 1994

HL Deb 29 April 1994 vol 554 cc974-84

2.57 p.m.

Lord Annaly rose to move, That the draft order laid before the House on 21st March be approved [15th Report from the Joint Committee].

The noble Lord said: My Lords, this draft Order in Council —the Immigration (European Economic Area) Order 1994—which is now before your Lordships' House makes provision for the entry and residence of European Economic Area nationals in the United Kingdom. The order is necessary in order to incorporate formally into United Kingdom immigration law those European Community directives which deal with freedom of movement and rights of residence for European Economic Area nationals. We already apply those directives. The earlier directives have been implemented through the United Kingdom immigration rules and the most recent ones administratively.

The order is thus largely a technical measure. It confirms our current immigration practice in relation to European Economic Area nationals and their family members. It enables us to meet our obligation to incorporate all these European Community directives into United Kingdom law.

It may be of help if I explain at this point the reason why the order refers throughout to European Economic Area (shortened to EEA) nationals rather than to European Community nationals or even to citizens of the European Union. The reason is that on 1st January 1994 the European Economic Area Agreement came into force. That agreement extends most of the provisions of the European single market, including the provisions relating to free movement and residence, to five countries of the European Free Trade Association (EFTA)—Austria. Finland, Iceland, Norway and Sweden—in addition to the 12 European Community member states. Of the remaining two EFTA states, Liechtenstein has signed the EEA Agreement but the EEA does not yet extend to Liechtenstein. Switzerland has decided not to join the EEA.

The European Community directives on free movement and residence therefore now apply to nationals of all EEA states right across the European Economic Area.

While we are concerned in the order only with EEA nationals coming to the United Kingdom, the rights of residents are reciprocal. They apply also to British citizens who wish to reside in any other EEA country. Thus we now all have the right, if we wish to do so, not only to work hut, provided we are financially self-supporting, to study and even to retire in any EEA country.

The order deals with the different circumstances in which EEA nationals may wish to reside here. The main categories are workers, the self-employed, those in business and providers or recipients of services, students, retired persons, and other financially self-sufficient persons.

I shall try to explain the effects of the order by outlining how its provisions apply to an EEA national coming here. On arrival at the United Kingdom port or airport, the EEA national needs to show a valid EEA passport or identity card. At most major ports and airports we already have a separate EEA channel for arriving passengers where EEA nationals need simply show their passport to an immigration officer. No stamp or endorsement is placed in the EEA national's passport. He or she is then free to enter the United Kingdom in much the same way as a returning British citizen.

Having entered this country, an EEA national is free to work in an employed or self-employed capacity, to carry out business, to stay here as a student, to retire here or to reside in any other capacity. Students, retired persons and others wishing to reside without working need to be financially self-supporting and to have sufficient resources to avoid becoming a burden on our social security system.

The order sets out the procedures for granting residence permits to EEA nationals. This is a facility which we are required to provide under EC law. However, we do not insist on EEA nationals obtaining a residence permit.

The spouse and other family members are able to accompany or join an EEA national here. However, if family members are not themselves EEA nationals arid are either visa nationals or coming to install themselves here on a permanent or long-term basis they need to obtain a visa or an EEA family permit before travelling to the United Kingdom. An EEA family permit is an entry clearance issued at a British post overseas. It confirms the eligibility for entry of the family member to join an EEA national. Your Lordships will notice that at Article 2 of the order, we have excluded parties to a marriage of convenience who we consider have no, right to be treated as family members under EC law.

In conformity with EC law the Government also retain the right to remove an EEA national or family member of an EEA national on grounds of public policy, public security or public health. For example, the immigration department reviews the cases of EEA nationals who have committed serious criminal offences with a view to their deportation.

I should say for the record what is not covered by the order. It does not cover EC Regulations Nos. 1612/68 and 1251/70 which have a bearing on rights of residence but already have direct effect in United Kingdom law. Nor does the order deal with our current practice in relation to the permanent residence of EEA nationals. This will continue to apply under the United Kingdom immigration rules. Finally, I should acid that in parallel with this order we will be bringing into force Section 7(1) of the Immigration Act 1988 which removes the requirement on EEA nationals to obtain leave to enter the United Kingdom.

This draft order is of necessity rather complex as fit has to cover the provisions of nine separate EC directives. Nevertheless I hope I have reassured your Lordships that the order is largely technical in nature, confirming our current practice in relation to EEA nationals. I commend the order to your Lordships. I beg to move.

Moved, That the draft order laid before the House on 21st March be approved [15th Report from the Joint Committee]—(Lord Annaly.)

3.5 p.m.

Lord McIntosh of Haringey

My Lords, I understand that this is the first business, other than a Starred Question, which the noble Lord has presented at the Dispatch Box. I welcome him to the fray. If he thinks that he will get away with describing it as "a largely technical measure", he has another think coming.

This is a thoroughly unsatisfactory order. It is self-contradictory. It is badly worded; it is in conflict in many respects with European Community directives and regulations; and it does not deserve the approval of the House.

I have already given the noble Lord the headings under which I propose to criticise the order, so I hope that he will be able to respond to the specific questions that I shall ask him when he responds to the debate.

My first question is about the definition of a "family member" in Clause 2. It is defined there as being the spouse, or, a descendant … who is under 21 years of age or is their dependant". The noble Lord has just told us that Regulation 16.12 of 1988 is not covered by this order because it is already part of United Kingdom law. But I remind him that Title III, Article 10 of that regulation extends the definition of family members to include brothers and sisters and nephews and nieces who are dependent. Will the noble Lord tell the House in what way United Kingdom law covers those who are defined by the European Community as being family members but are not covered as being family members in this order? Unless he can give us that information, I am afraid that the charge of conflict between European legislation and the order that is before us must stand.

My second question is about the issue of an European Economic Area family permit. I am interested to hear from the noble Lord the explanation. It is not in the order, nor indeed in the Explanatory Note, that an EEA family permit will be issued at a post overseas. How does the Minister explain the difference between this reference to an EEA family permit in paragraph 3(3) with the reference in paragraph 5(2) (c) to, proof that he is a family member of a qualified person"? There does not seem to be any particular reason for that. There is no reference to family permits in European legislation, and the difference between the two references needs a firmer explanation.

The whole question of relationships between the national and other family members again needs further explanation. Directive 68/3/60/EEC says that, a relationship is proved by a document issued by a competent authority". How does that square with the provision in paragraph 2(2) that a spouse does not include a party to a marriage of convenience". There is no reference in European legislation to a marriage of convenience. The whole concept of the primary purpose rule which is unique to this country does not appear in European legislation, and does not appear to be justified in an order of this kind which purports to implement European legislation. I shall not continue on this point because I know that the noble Lord, Lord Bonham-Carter, wants to say something on it. But I cannot forbear from referring to the immigration Act which we passed last year—unwisely, in my view. There is reference in this order to the rights of appeal. But of course the right of appeal under the 1993 Act does not exist if, in Section 10 of the 1993 Act, the ground of refusal is that the document required under the immigration rules is lacking. So the references which appear to apply here to the right of appeal to a refusal do not in fact apply to those who come without an EEA family permit. I wonder whether the Minister can explain that contradiction between the wording of the order and the provisions of the 1993 Act.

The third issue is that of internal frontiers. We spent a long time last year on the Maastricht Treaty, and we are very well aware that the Government have publicly insisted on the continuation of the right of control at internal frontiers. But Article 7A of the European Communities treaty, as amended by Maastricht, does not give us the right to maintain controls at internal frontiers for citizens of member states. The issue is still in doubt because there has been an application for judicial review ex parte Flynn. Can the Minister tell us what will happen if the judicial review goes against the Government? Will there have to be an amendment to this order? How will the matter be dealt with? The Government certainly cannot claim that they have obtained the agreement of the legal authorities or the European Courts at any rate to the claim to maintain internal frontiers.

I turn to the right of family members to remain. Paragraph 4(2) states that: A family member of a qualified person shall be entitled to reside … for as long as he remains the family member of a qualified person". Under the definition of "family member" that we have already discussed, a family member is only a descendant who is under 21 and/or dependent on the qualified person. What happens if that family member reaches the age of 21 or ceases to be dependent? Does he no longer have the right to reside in this country? How does that square with European legislation? Or, does it mean—because the wording of the order is ambiguous—that there could be a change in the status of the qualified person rather than the status of the family member? Which one does it mean? Unless the Minister can give an answer to that question, the order will remain unclear.

I turn to the definition of "qualified person", which is very complicated and takes up the whole of paragraph 6 of the order. The Joint Committee on Statutory Instruments raised a query on a specific definition, namely, the definition of "student", and his having: sufficient resources to avoid becoming a burden on the social assistance system", of the United Kingdom. In response to a letter from the clerk to the joint committee, the Home Office replied —I use the words of the joint committee— attempting to justify the choice of words", used in this order. But the committee said that it believed that it was doubtful whether the order did, in that respect, implement the directive. Therefore: there is doubt whether [the order] is infra vires". How can that be resolved? This is an order which has not been recommended as being without problems by the Joint Committee on Statutory Instruments. In his opening statement the Minister made no reference to the report of the Joint Committee on Statutory Instruments. I suggest that he should have done so and that we need a better answer than that which failed to convince the joint committee when it was given by the Home Office.

Apart from anything else, I have a genuine problem with the definition of "a student". In the order "a student" is defined as: a person who … is enrolled at a recognised educational establishment in the United Kingdom for the principal purpose of following a vocational training course". A vocational training course, my Lords! Are students taking only vocational training courses? Surely students are students, whether they are studying Latin, mathematics or engineering. Is it seriously claimed that citizens of member states of the European Union cannot come here as students—they have to be qualified persons in order to pursue economic activity in this country—unless they are pursuing a vocational training course? Again, I suggest that the wording of the order is seriously defective and is in conflict with European directives and regulations.

As I am on the point of the wording of paragraph 6, perhaps I may ask the Minister to tell us the difference between "social assistance" and "social security". In paragraph 6(1) (f) "a self-sufficient person": has sufficient resources to avoid his becoming a burden on the social assistance system of the United Kingdom". In the very next sub-paragraph, paragraph 6(1) (g), "a retired person", means a person who … is in receipt of [moneys] … sufficient to avoid his becoming a burden on the social security system of the United Kingdom". What is the difference between a social assistance system and a social security system? Why are the words used as though they were interchangeable?

There is then the issue of the third country nationals with residence rights in this country. There are binding agreements between a number of member states of the European Community—I do not know about other members of the European Economic Association—which give rights of residence, for example, to Turkish citizens in Germany. Are they covered by the order? There is no reference to those agreements which are part of the European immigration legislation and should be dealt with in the order.

The order is thoroughly unsatisfactory. If it were not for the firm convention in this House that we do not overturn orders, and in view of the fact that we cannot amend them, I would be recommending to your Lordships that the order be sent back to be thoroughly revised. I shall certainly recommend to my right honourable and honourable friends in another place that when the order comes before them it should be rejected out of hand.

3.16 p.m.

Lord Bonham-Carter

My Lords, I agree with almost every word the noble Lord, Lord McIntosh, uttered in a devastating destruction of the order. I join him in welcoming the noble Lord to the Dispatch Box and only commiserate with him on his maiden appearance in having to introduce an order which is so difficult to accept on any ground whatever. I suspect that none of his colleagues wanted to introduce it and that is why he is landed with it. It reminds me of the passage in Peter Pan when Captain Hook says, "They always make the baby Hook". That is what happened on this occasion.

'The noble Lord says it is a technical measure. It is highly technical but that does not mean it does not raise matters of important principle. It does. As the noble Lord, Lord McIntosh, said, it is thoroughly bad, devious —as I will show—and of course late. The Government constantly congratulate themselves on British compliance with European Union legislation and directives. In this case we cannot congratulate ourselves on progress. The order is late. I believe that it is no less than six years late, and that is taking leisure rather seriously.

I will attempt to show that again and again throughout the order we attempt to qualify European Union law by means of domestic law, and that we cannot do. Those attempts will fail in respect of the three issues I propose to raise—the right of residence, marriages of conveniences and the question of passports or identity cards when arriving in this country. I shall begin with the rights of residence. As the noble Lord said in his introduction, the order brings into force Section 7(1) of the Immigration Act 1988. On 1st November 1993 all nationals of the European Union become citizens of the Union. On that date we shall all have dual citizenship and as citizens of the European Union we are endowed with certain rights, one of which is the right of residence in any part of the European Union. That is embodied in Article 8A EC.

By virtue of that article citizens of the Union are entitled to reside wherever they wish within the Union, without hindrance, and subject to exclusion only on the three grounds mentioned by the noble Lord of public policy, public security and public health. However, paragraph 6 of the order states that citizens of the Union only enjoy residence rights in the United Kingdom when they can establish entitlement under some other provision of European Union law. That is a matter of some importance because what is at issue is the burden of proof. Is there a presumption in favour of European Union citizens, or must they, when they come to this country, provide some other proof in order to be entitled to residence? This is not a trifling matter. It is a matter of real significance and importance. I should like to have the Government's answer to that question.

Secondly, I should like to look at marriages of convenience. Paragraph 2(2) of the order reads: 'spouse' does not include a party to a marriage of convenience". As the noble Lord, Lord McIntosh, said, there is no definition of "a marriage of convenience" and I am advised that there is no legal basis for that exclusion. It is what I described earlier as an attempt to place a restriction on European Union law which is not countenanced by European Union law. There is no domestic power to restrict rights under European law.

Thirdly, I should like to look at investigation. In. addition, that provision in the order might appear to give the state the right to investigate marriages between citizens of the Union and third country nationals. As we know, inquiries into the primary purpose of a marriage can take months and indeed years. They are extremely intrusive and during the investigation in most cases the spouse is excluded from entry into this country. Is that proposed in the case of European Union citizens?

It has been said of this provision: European Union law will not interfere with our national decisions on how we wish to treat ourselves. However, it will prevent us from subjecting citizens of the Union to the humiliation which we may consider appropriate for ourselves". The Minister must tell us what is the consequence of introducing this concept of marriage of convenience, which has no definition and no place in European Union law. How will that affect the issues which I have just mentioned.

Paragraph 3(1) of the order requires an EEA national to provide a passport or identity card on entry into this country. As your Lordships will be aware, this has been the subject of legal debate as to the compatibility of passport checks on entry into this country with Article 7A EC of the treaty. The matter will probably have to be settled in the European Court of Justice. The United Kingdom Government believe that they have such a power. The Commission has set out its position, arguing that no such power exists. It seems very odd for the Government to legislate in favour of their own view when there is a strong likelihood that a decision will be made by the European Court of Justice that will make the Government look foolish and they will then have to go back on the law which they have just passed, bearing in mind also that decisions of the European Court of Justice cannot be rendered ineffective by domestic law.

The haste which the Government have shown in this matter is in marked contrast to the dilatory way in which they have approached those other European Union regulations, laws and directives which give rights to European Union citizens. Where there is restriction on the rights of European citizens, the Government act immediately; where they are provided with rights which are for their benefit, the Government take six years before they take action as regards this very flawed measure.

Lord Annaly

My Lords, I begin by thanking noble Lords opposite for the welcome which they have given me at the Dispatch Box. In the circumstances, and given the powerful speeches which both noble Lords have made, it is my intention, following my response, to adjourn further debate on the order rather than to invite your Lordships to agree to the Motion today.

I am grateful to your Lordships for the comments which you have made about the order and the way in which it transposes into United Kingdom law EC rights of free movement and residence. I shall now attempt to answer as many as possible of the questions raised on the order, but if there are any points which I have missed I shall endeavour to write to the noble Lord concerned.

As I explained at the outset, this is a necessary order so that the United Kingdom can demonstrate the formal implementation of the EC directives relating to the rights of residence of EEA nationals. It is not intended that the order should in practice make any significant change in our procedures. These are designed to make it as easy as possible for EEA nationals to exercise their rights to reside here with their families. At the same time, the Government's policy is to maintain firm but fair immigration control. We need therefore to maintain immigration checks at our frontiers on travellers arriving from both inside and outside the European Economic Area. We are also bound to ensure that the procedures relating to non-EEA dependants of EEA nationals do not allow spurious applications to succeed or persons who are not genuine family members to circumvent immigration controls.

I now turn to the points which had been raised. I begin with the noble Lord, Lord McIntosh. First, the definition of "family member": Regulation 1612/68, which I referred to in my opening speech, already has direct effect so the references in that regulation to favouring the admission of other dependent relatives does not need to be implemented in this order.

I now turn to the point made by the noble Lord about EEA family permits. Non-EEA family members of EEA nationals who are visa nationals already require a visa to come to the United Kingdom. Under that order, if accompanying or joining the EEA national here, a visa national will require an EEA family permit. Non-EEA family members of EEA nationals who are not visa nationals already need an entry clearance if coming here for settlement under the immigration rules. Under the order they will require an EEA family permit if coming to install themselves with the EEA national—in other words, on a permanent or semi-permanent basis.

If coming for a temporary purpose such as a short visit, a non-EEA family member who is not a visa national does not require an EEA family permit. If once here such a person decides that they wish to stay longer, they may apply for a residence document in line with the residence permit issued to the EEA national.

The EEA family permit reflects the provision of Article 3(2) of EC Directive 68/360 EEC which states: No entry visa or equivalent document may be demanded save from members of the family who are not nationals of the member states". The EEA family permit requirement puts non-EEA family members coming here in a similar position to the non-EEA family members of a British citizen who requires an entry clearance under the rules to settle here.

Turning to the questions raised about rights of appeal, the noble Lord, Lord McIntosh, rightly recalls that the Asylum and Immigration Appeals Act 1993 excludes an appeal in certain cases where there is no document which is required by the immigration rules. However, the requirement of an EEA family permit is imposed by this order so it is not affected by the 1993 Act, and the right of appeal is available.

Turning to the points concerning frontier controls in Article 7A, the noble Lord, Lord McIntosh, will know that the Government do not accept that Article 7A of the EC treaty prevents immigration controls continuing at United Kingdom ports and airports on non-EEA nationals supported by a light passport/identity card check on those EEA nationals. The United Kingdom's island geography makes it the most sensible and least intrusive system for our immigration controls to be primarily frontier-based, and the Government are determined that those controls will continue. Immigration controls at our frontiers do not interfere with the rights of free movement and residence of EEA nationals as set out in the order.

Article 3 of the order confirms that EEA nationals should produce on arriving here a valid passport or identity card. That is in line with Article 3 of EC Directive 68/360/EEC which states that member states shall allow EEA nationals to enter their territory, simply on production of a valid identity card or passport". That provision has been repeated in the more recent directives, including Directive 93/96/EEC on the right of residence to students which came into force on 31st December 1993, some 12 months after the completion of the single market. The case in the name of Flynn, mentioned by the noble Lord, Lord McIntosh, does not bear on Directive 68/360/EEC.

Turning to the question that was raised about social assistance, the terms "social assistance" and "social security", which have been used separately in the order, simply reflect the separate wording used in the relevant EC directives.

On the points raised about the definition of "student", the order refers to students on vocational courses because this is the requirement of the relevant EC directive.

Lord McIntosh of Haringey

My Lords, if the noble Lord will permit me, the order says —and I said—"vocational", not "vacational".

Lord Annaly

My Lords, my apologies.

The noble Lord criticised us for failing adequately to implement EC law, a charge which we reject. The noble Lord, Lord McIntosh, cannot, with respect, have it both ways. We cannot implement an obligation in relation to students which does not exist. That is why the order refers only to vocational students.

Lord McIntosh of Haringey

My Lords, I intervene only to be helpful. I am very much involved in vocational education and training and attended a significant conference on this matter in Brussels in November last. The whole question of the use of the word 'vocational" was debated at some length by the relevant directorate-general. The problem appears to arise in translation from the French. I suggest that perhaps the Home Office might look into other occasions on which such a problem has arisen before finally reaching a conclusion on the wording to be used in such an order.

Lord Annaly

My Lords, I thank the noble Lord for bringing that point to our attention. We shall look into it and follow up what he has said.

I turn now to the point about association agreements. The noble Lord, Lord McIntosh, referred to those association agreements which the European Community concluded with states outside the EEA, especially Turkey. As the noble Lord may know, such agreements do not confer rights of free movement on individuals. Therefore, the provisions fall outside the scope of the order.

The noble Lord, Lord Bonham-Carter, spoke about the delays in implementing the directives. Although there has been a delay in implementing the three most recent directives, the earlier ones are all catered for in the immigration rules. The provisions of all the directives have been implemented administratively since they came into force, and no EEA national has been treated against the spirit of the directives.

The order is a complex piece of legislation and has been some time in its preparation. The Implementation was also delayed to take into account the entry into force of the European Economic Area Agreement on 1st January 1994.

My Lords, I beg to move that the debate on the Motion for the approval of the order be now adjourned.

Moved, That the debate on the Motion for the approval of the order be now adjourned.—(Lord Annaly.)

Lord McIntosh of Haringey

My Lords, before the noble Lord sits down, perhaps I may express my appreciation for the responsible way in which he has responded to the remarks made by the noble Lord, Lord Bonham-Carter, and myself. I am most grateful to him. I hope that we shall have an opportunity to consider the matter in more detail at a later stage.

Lord Bonham-Carter

My Lords, I should like to associate myself with those remarks.

On Question, Motion agreed to, and debate on the Motion for the approval of the order adjourned accordingly sine die.