Joint Committee on the Secondary Legislation of the European Communities debate -
Tuesday, 16 Dec 1980

Right of Residence.

Senator Robinson

This is a small but significant matter in the same area of freedom of movement and the rights secured for nationals of Member States in the territory of the other Member States. The legal basis of this proposal is Article 235 of the Treaty, which enables the Council of Ministers, acting unanimously, to take appropriate measures for the attainment of one of the objectives of the Community where the Treaty has not made provision for it.

In addition to Article 235, it is also based on Article 56 (2) which appears in the chapter dealing with the right of establishment. The idea is that at the moment there is a right of movement for the establishment of self-employed to pursue economic activities. It is related to their status as persons moving for the purpose of carrying out their self-employed activities of doctor, lawyer, business person or whatever. This provision is to extend this where the person, as a national of an EEC Member State, is moving, not for a self-employment purpose, but wishing to live in that country, not necessarily for economic purposes. This is summarised at paragraph 4 of the report. Freedom of movement and residence is already available to Community nationals covered by the Regulations and Directives on free movement and right of establishment. However, where a national of a Member State wishes to reside permanently in another Member State without pursuing——

Chairman

Neither setting up on his own in business nor employed?

Senator Robinson

Nor employed, nor, I suppose, a dependant of a person.

Chairman

Within these categories.

Senator Robinson

Within those categories, yes. If he wishes, again in a more social context, to go to live in another country, not related to the pursuit of economic activity, he comes under the general rule relating to foreign nationals or other aliens and is treated in the same way as nationals of non-member states and is much more subject to the discretionary power of the host Member State.

Chairman

The proposed Directive will improve this position?

Senator Robinson

Yes. This Directive will put that person, being an adult over 18 years of age, and that person's family and dependants on the same footing as a national of the EEC country going for the purpose of being a worker or for establishment as self-employed.

Chairman

Subject to what Senator Robinson will tell us later about means of support?

Senator Robinson

Yes. We summarise, in paragraph 5 the kind of provisions which exist at present and which will be extended to these persons.

Examining the implications for Ireland, we looked at the current aliens regulations. There were earlier aliens regulations in 1972 and then came the European Communities (Aliens) Regulations 1977, introduced at the end of the transition period which ended at the end of December 1977. During the transitional period, 1973 to 1977, the Minister for Labour was entitled to issue work permits for workers from other Member States.

If these proposals are adopted, it will be necessary to amend these Irish Regulations to include this category of persons who move for purposes not related directly to an economic activity, but for other social reasons.

The Sub-Committee were informed that it is not anticipated that the contents of the proposal would pose any great problems for the country. We were given what I think are interesting statistics which we have incorporated in the report. Paragraph 7 refers to the Committee being informed that from 1 January 1972 to 31 October 1980, 1,942 nationals of Member States have been issued with residence permits under the European Communities (Aliens) Regulations 1972 and 1977. That is an underestimate of the number of people involved. We were informed that there are long-term residents who are nationals of Member States and who have not applied, and who are not obliged to apply, for a residence permit, and who can remain in the country without specifically applying for one. We were also informed that no application has been refused.

Chairman

Is that correct?

Senator Robinson

They cannot be removed from the country. They can, potentially, be prosecuted for a summary offence under our law, but cannot be deported or moved.

Chairman

They are here on a not entirely legal basis?

Senator Robinson

They are in the position where they may not have satisfied a rather minor legal requirement. It was clear that the Department of Justice do not regard it as being necessary to pursue these people and ensure that they have residence permits.

Chairman

They are not politic, anyhow.

Senator Robinson

Yes, and they are perfectly entitled to remain in the country. A number are remaining on that basis. We are sure that no application has been refused. Under both the 1972 and 1977 (Aliens) Regulations, the Minister is entitled to refuse a person on the grounds of public policy, public health and also of security. This is not entirely discretionary, but is related to a directive of 1964 and does not relate to the scope of public policy that would have existed for non-nationals.

The Appendix gives the number of residence permits issued in regard to each member state and the categories of persons to whom they were issued. This is interesting information which is not otherwise easily available.

At the end of paragraph 7, we qualify our totals. Again they are not necessarily the totals of qualified EEC nationals resident in the State since persons born in Britain or in Northern Ireland are not included and EEC nationals are not obliged to apply for a residence permit, and there are a number of long-term residents in the State who have not applied for residence permits.

Chairman

These are people not employed or carrying out work?

Senator Robinson

Well, they could be——

Chairman

Artists?

Senator Robinson

—— and could have been for a number of years, but it is not a condition of being lawfully within the State.

An important part of the proposed draft Directive extending the right of residence to persons who are not coming for the pursuit of economic activity is that a Member State may withhold the right of permanent residence to persons who do not have sufficient resources to provide for their own needs and the needs of their dependants. Also, it would allow a Member State to withdraw the right after five years, for the same reason.

The resources required under this heading to be granted a permit of residence may not be greater than the minimum subsistence level applicable by all Member States in respect of their own nationals. There is no minimum subsistence level defined under Irish law. We say in Paragraph 9, that it is likely that the authorities would require that a person seeking permanent residence in this country would have resources at least sufficient for them not to require assistance under the Supplementary Welfare Allowance Scheme, or the other social assistance schemes administered by the Department of Social Welfare. Many other Member States have a statutory minimum subsistence level but we do not have that, as such.

Chairman

It appears that this proposed Directive does not require the State to——

Senator Robinson

It is a co-ordinating measure, providing a sort of level for the whole of the EEC, leaving it to each Member State. We were informed here by the officials of the Department of Social Welfare that the authorities would probably use the criterion that these people would not have to fall back on the supplementary welfare or be an economic burden on the State.

Chairman

Is that linked in with the reference in paragraph 13 geared to guidelines used for medical cards, where you say that the implications as far as health services are concerned would be minimal, especially if the application of Article 4 (2) was geared at a rate higher than the guidelines used for medical cards?

Senator Robinson

It is not clear exactly how that will be geared. It seems that there is an area of discussion there, that persons who wanted to move to any other country, not to carry out the work of a self-employed person but just to live in the country, would have to show that they could support themselves. This must be, at least, sufficient for them not to require some assistance under the Supplementary Welfare Allowance Scheme. It is not clear exactly how this will be worked out. Again, it is hard to calculate whether there will be implications for the cost of the health service here. It is not felt that it will be significant. This extends to members' families in the same way. Paragraph 12 states that the only schemes likely to be affected are the Children's Allowance and the Free Travel Schemes as entitlement under them is not dependent on satisfying a means test or the social insurance contribution scheme. There is provision in the proposal for a review within six years of the application of the obligation to furnish proof of sufficient resources. The purpose behind this proposal is to get away from the idea that the rights of nationals of EEC countries particularly hinge on the employment position. There are workers who seek to move for the purpose of employment or economic conditions. It is intended to give the right of residence to nationals of EEC countries and their families. At the same time they should not be financial burdens on the State. They are required to have sufficient means to support themselves and their families. They should have at least a minimum income so that they would not be a drain on the social welfare allowance schemes. On the whole, it seems likely in practice that this is a facility which will be availed of by people who are reasonably well off. At the back of the report there is an Appendix giving the number of residents from the EEC countries who have come here. Some of them like to travel from one country to another and travel around Ireland while they are here.

Chairman

Many of them will have gone away now.

Senator Mulcahy

I would like to suggest that in the Appendix it should be stated that the figures refer to Ireland. It is fairly obvious in the context.

Senator Robinson

That is important because in a number of cases they did not stay very long. Most of them came for a couple of months.

Chairman

A lot of them could have gone away.

Senator Robinson

Yes.

Chairman

I see a figure is also quoted for residents permits granted from January to October of this year.

Senator Mulcahy

That is additional information. Some of the German population would be working for firms and taking up permanent residence. The UK people do not have to get permits. There is a special relationship between the UK and Ireland. You could have people who have passports for EEC countries as a result of being colonials. Will they have the same rights?

Senator Robinson

There is a Protocol to the Treaty which defines all those who have full international rights. The UK at the time of negotiating entry into the EEC defined precisely what category of persons would have the right.

Senator Mulcahy

I am asking for information. An Algerian would have a French passport.

Senator Robinson

That was also dealt with in the Treaty of Accession. There was a reservation for Algerian nationals.

Chairman

We talk about nationals and internationals.

Senator Robinson

They are dealt with in the Treaty of Accession. It particularises nationals, colonials and former colonials.

Senator Mulcahy

Britain has a problem of mass emigration from various countries where people have British passport rights. Are those rights conferred on them to come to Ireland through EEC Regulations?

Chairman

I do not think so. They have that right already. That is why some of them come in as UK nationals. This is why we have this backdoor entrance.

Senator Robinson

They have the right of entry as UK nationals subject to the provisions of the Treaty of Accession.

Senator Mulcahy

I will not press the point. I am happy with the proposal.

Paragraphs 1 to 15, inclusive, agreed to.