The next item on the agenda is the scrutiny of EU document COM (2003) 199. This relates to the rights of citizens of the Union and their family members to move and reside freely within the territory of the member states. This document has been sent to us for further scrutiny. As with all documents which are fairly complex and difficult, we do not possess the wherewithal within the committee to examine it in detail. We did get a copy of the information concerning the document. It was circulated to us on 24 July and, in line with this, we have asked officials from the Department of Justice, Equality and Law Reform to brief us on the document. We are happy to have the officials before the committee today. They are Mr. Paul Burns, Mr. Gerry Browne, and Ms Joan Gordon from the Department of Social and Family Affairs. We have a number of other officials assisting them, Ms Ann Hopkins and Ms Fidelma Lyons. They are all very welcome and I thank them for attending. The usual formula employed is that the delegates make the presentation in whatever form they wish. Then there will be questions from the members of the committee. Hopefully, this will give rise to a fruitful discussion. There are obviously matters we wish to learn more about. I now call on Mr. Paul Burns.
Community Travel Rights: Presentation.
Mr. Paul Burns
Thank you, Chairman and members of the committee for the opportunity to outline the position on the proposed directive on the rights of citizens of the Union and their family members to move and reside freely within the territory of the member states.
I would like to introduce myself and my colleagues. I am a principal officer in the Immigration Policy Unit of the Department of Justice, Equality and Law Reform. Mr. Gerry Browne is an assistant principal in the immigration policy area and Ms Joan Gordon is an assistant principal in the Department of Social and Family Affairs.
First, I will outline the background to the proposed directive and my colleagues and I will then be glad to respond to any questions. The committee is, of course, aware that as civil servants we cannot in this forum question or express an opinion on the merits of any policy of our Ministers or of the Government, or on the merits of the objectives of such a policy. Also, because of the nature of the discussion taking place at European Union level on the proposals, we are not able to comment on the positions taken by other member states on particular issues.
The proposed directive is intended to replace and supplement the existing legislative instruments in force on freedom of movement for European Union citizens, which comprise nine directives and two regulations. The proposal also takes into account the case law of the European Court of Justice and the provisions of the European Union Charter of Fundamental Rights regarding family unity and protection of family life. The initial proposal was adopted by the European Commission on 23 May 2001 and was presented to the Council on 2 July that year. It was also presented to the European Parliament which subsequently adopted 82 amendments to the document. The current proposal includes all or part of most of the amendments proposed by Parliament.
The general objective of the proposals is to simplify the conditions and the administrative formalities associated with the exercise of the right of free movement and residence in the member states, and to facilitate the right of free movement and residence of family members of a Union citizen, irrespective of nationality.
The proposed directive would have some implications for the policies and practices of a number of Government Departments in Ireland, as in other member states. At European Council level discussion takes place within the working party on free movement of persons, which was established to deal with this proposal. The working party reports to the Competitiveness Council, on which Ireland is represented by the Tánaiste and Minister for Enterprise, Trade and Employment. However, the Department of Justice, Equality and Law Reform has been nominated to lead the Irish delegation in the discussions in the working party. The Department of Social and Family Affairs also actively participates in the work of the working party. Other Departments, such as the Department of Education and Science, the Department of Enterprise, Trade and Employment and the Department of Health and Children are consulted on developments in the proposals in so far as they affect their areas of competence.
On the approach adopted in the negotiations, Ireland is supportive of the proposal's general thrust. In all our dealings on this proposal, we are mindful of the fact that it affects Irish citizens in their movements within the European Union as well as the movement of European Union citizens in Ireland. Our general approach is to support the simplification of the system of free movement, while at the same time ensuring the provisions of the proposed directive are not subject to abuse by persons who do not have a legitimate right to benefit from it. We also wish to ensure that as far as possible the proposals are consistent with current Irish legislation, policies and practices. It must be remembered that the current immigration procedures relating to European Union citizens travelling to Ireland are very simple. All that is required to be allowed to travel here is that a Union citizen should have a valid passport or identity card. If such citizens wish to remain in Ireland for a period of more than three months in exercising their rights to free movement, they are not required to register with the Garda National Immigration Bureau. Such registration is required for persons who are nationals of countries outside the European economic area. Details from the recent census show that there were around 133,000 European Union nationals resident in Ireland in 2002. This represents some 3.6% of the population of the State. The largest group is of course UK nationals.
The proposal for a new directive is made under Articles 12, 18(2), 40, 44 and 52 of the Treaty establishing the European Community. Since the coming into force of the Nice treaty the procedure to be adopted in the adoption of this measure is the "codecision procedure", which involves the European Parliament as well as the Council. The Parliament's proposed amendments are included in the current document and this is now being considered by the Council working party. The next step will be for the Council to adopt what is called a "common position" on these proposals, which is expected to be approved by the Competitiveness Council during the current Italian Presidency. That common position, when approved by the Council, will be put to Parliament with a view to reaching agreement. Should agreement not be forthcoming, conciliation procedures under the codecision procedure will come into play.
A broad outline of the contents of the documents is as follows: Chapter I, Articles 1 to 4, contains the subject matter, definitions, persons entitled to benefit and a non-discrimination clause; Chapter II, Articles 5 and 6, sets out the right of movement and the right of residence for up to six months. This period had previously been limited to three months. Chapter III, Articles 7, 8, 9, 10, 11, 12, 13, 13a, concerns the rights of residence for more than six months. Articles 7, 8 and 9 set out the conditions governing the right of residence for more than six months, the administrative formalities for EU citizens - and the administrative formalities for family members who are not nationals of a member state. Articles 10 and 11 set out procedure concerning the issuing of residence cards and their validity. Articles 12 and 13 concern the retention of the right of residence in the event of death or departure of the EU citizens, or in the event of divorce or annulment of marriage or termination of a partnership. Article 13a sets out the procedural safeguards in the event of removal for administrative reasons.
Chapter IV, Articles 14 to 18, concerns the right to permanent residence. Article 14 creates the right of permanent residence after a period of four years. Article 15 sets out exemptions for persons no longer working in the host member state and their family members. Article 14 creates the right of permanent residence after a period of four years. Exemptions for persons no longer working in the host member state and their family members are set out in Article 15. Article 16 sets out the acquisition of the right of residence by certain family members who are not nationals of a member state.
Articles 17 and 18 set out the administrative formalities for issuing the permanent residence card. Chapter 5 sets out the provisions common to the right of residence and the right of permanent residence. This includes an equal treatment provision, in article 21. Chapter 6 sets out the restrictions on the right of entry and the right of residence on grounds of public policy, public security or public health.
Article 25 sets out the general principles which shall apply to any decision restricting the freedom of movement of Union citizens and their family members. Article 26 prohibits the removal of Union citizens or their family members who have permanent right of residence or of family members who are minors.
Article 27 deals with restrictions on the grounds of public health. Articles 28 and 29 deal with notification of decisions and procedural safeguards. The duration of exclusion orders is covered by Article 30. Article 31 deals with removal as a penalty or legal consequence and Article 31(a) deals with checks prior to expulsion. Chapter 7 sets out standard final provisions.
The directive, when completed, will help to clarify the position as regards the freedom of movement of European Union citizens and their family members in a single legislative instrument and will more clearly show the benefits of Union membership to citizens.
We are happy to respond to any questions members may have bearing in mind the constraints upon us.
It is a very simplified presentation, more understandable than the last one. There is a great deal of concern about what may be happening in May next year when we adopt free movement here. Is this country ready for such a large influx of people? Are we ready for the number of people who will be presenting themselves here? There will be people who want to work in the State, also people who will be here requesting social welfare and all kinds of State benefits. Is this country ready for that? What are the Departments' and the Government doing to prepare for that? There is a great deal of concern. Free movement is one thing, but an influx is another. How are we going to deal with that as a community?
Mr. Burns
I suppose the main debate on this issue has been about the free movement of workers. At European Union level, in the accession treaties with the ten new candidate countries, there is a provision that if there are difficulties in the labour markets of any of the existing member states they retain a right to restore restrictions in the labour market. The position in Ireland, which the Tánaiste and Minister for Enterprise, Trade and Employment has set out, is that from 1 May next year, we will allow free movement of workers into Ireland. There will be no requirement for work permits, although the legislation that was enacted this year, the Employment Permits Act 2003, does make provision that if there is difficulty in the labour market in Ireland the employment permit requirements can be reintroduced, although it is not envisaged that it will occur. That is the position on workers.
On the movement of people who are not workers, the existing corpus of regulations and directives regarding free movement clearly sets out the purposes for which a person can move to another member state. It is not an absolute right. One can move for the purposes of employment or for taking up services and for certain non-economically active purposes, if one can be shown to have sufficient resources to maintain oneself while being in the other member state. We will be falling back on those provisions if a person comes here other than as a worker. That person will have to show he or she is in a position to maintain themselves.
That is a very important point. What Mr. Burns is saying is that the movement of people who want to come here to work will not be under the permanent system, which will now go. That is acceptable. However, for somebody who shows up, like an asylum seeker, they will not have free movement unless they can prove when they come into the State that they have resources to support themselves, like our own students who go to America. They have to show, when applying for the summer visa, that they have the means to get there and back. What will happen if - perhaps it is not a fair question - people show up at the Department of Social and Family Affairs? Are we obliged by law to provide accommodation for them? Are we obliged by law to give them money? Is this an obligation under EU law? Listening to the general public, they are getting concerned. This is a new trend here; it was the other way in the past when our own people left this country to go abroad. There is no point pretending or shying away from this, there is a great deal of concern about what will happen in the future. Will the delegation respond to that?
Mr. Burns
I do not know how well I can respond. The Department of Justice, Equality and Law Reform will not be dealing with the individuals concerned. If an individual turns up at the border and presents a European Union passport the presumption will be that they have a right to enter the State, whether that be for a short time or for longer-term purposes. If they are in a position to work they can enter employment. There is nothing to stop them doing that. If they present themselves for social welfare the Department of Social and Family Affairs will be entitled to look for proof of who they are, on what basis they are here and whether they comply with the European regulations and directives that apply in this area. I do not know if Ms Gordon would want to say anything on this.
Ms Joan Gordon
If an EU citizen who has previously worked in their country of origin comes to Ireland to look for work, they can export an unemployment/social insurance benefit with them. Currently the period is three months. There is a proposal to extend that period to six months. If they come looking for work, having been in employment paying the equivalent of social insurance contributions, they would get a benefit from their country of origin. That is another safeguard to ensure they do not become an unreasonable burden on the social welfare system. Equally, Irish people going to other member states can export their Irish unemployment benefit for a period of up to six months. That is under a co-ordinating EU regulation: 1408 (71).
There are reciprocal arrangements which will apply for six months while people are finding their feet, so to speak, and the same applies to people going from this State elsewhere in the European Union.
In case I missed it, in the context of this directive, when is it expected that this will come into operation and are we then obliged to implement it? Various articles set out the right of residence by family members who are non-nationals. I would like to know the cause of the delay at present where a person is a non-national, married to an Irish person and looking for a resident's certificate or a right to work in Ireland. Why is there such a delay in processing that? Does this directive impinge on that in any way? If an Irish person is in receipt of, or applies for, a rent subsidy or seeks a transfer from a local authority housing list they cannot transfer until an opportunity arises. If a non-national is located in Sligo, Galway or Athlone and is in receipt of a rent subsidy of, say, €400 per month, is it true they can decide that for whatever reason they want to go to Dublin where the rent subsidy may be about €1,200 or €1,400 per month? Is it not the case that different standards apply? Is there anything in this directive that would impact on that situation?
Mr. Burns may wish to address the questions.
Mr. Burns
Perhaps I will address the questions in the order in which they were asked. The first was when this directive would apply and whether we would be obliged to implement it. The directive talks about the provisions coming into effect from 1 July 2005. Currently we are involved in discussions in the Council working party. When they are completed the matter will go back to the European Parliament. Depending on the outcome in the Parliament it may come back to the Council working party. The intention is that this may be completed during the Irish Presidency. There are issues about the European Parliament elections next year and the time available to deal with this in the parliament. It is unlikely to be completed until next year and it will not be implemented until July 2005.
On the question of whether it applies to us or whether we are obliged to deal with it, in the immigration area we have the option whether to participate in measures in so far as they relate to third country nationals. However, as this initiative relates to European Union citizens, and their family members, we do not have an opt in or an opt out position. We are automatically involved and there is no choice.
There was also the question on non-nationals marrying Irish nationals and the delay in their cases being considered within the Department. Examining some of these cases can be complex. While documentation may be sent to the Department, it is not unheard of for fraudulent arrangements to be entered into by people to try to get residence on a fraudulent basis. An amount of checking has to be done to ensure the family concerned is still subsisting within the State and that it is an actual relationship. Also there is a resource issue. As one can probably understand, during the past three to four years, the number of these cases has increased massively. We are trying as best as we can to keep up with the volume of business but, unfortunately, there can be delays in dealing with these cases.
There was also a question on whether this directive will affect them. In so far as an Irish national marries a non-EU national, while they are living in Ireland this directive will not affect them; it is only when they are exercising free movement within the European Union that it affects them. If an Irish person married to a non-national moved to another European Union member state, exercising their right to free movement, those family members would then benefit from the entitlements set out here. In the member state of the nationality of the Union citizen this does not apply because they are not exercising free movement.
In the context of a non-contentious application which is causing much stress, if I make contact with the officials will they have a look at it?
The Deputy is long in the tooth and he knows officials will always help. Does Ms Gordon wish to say anything on a convoluted question from my colleague, Deputy Ryan?
Ms Gordon
I am not sure if I am well placed to answer the specific question as I do not deal with the supplementary welfare allowance scheme on a day-to-day basis. My understanding of how the scheme works is that a person goes to the community welfare officer and has the normal control measures and questions asked in relation to means. If that person moves location, for example, from Sligo to Dublin he or she would be reassessed on their move to Dublin. What is the question? Is it whether they would get an increase or why they have moved to Dublin?
What was the necessity to move in the first instance and, if they so move, why the increased subsidy? I could raise a different issue but it is not relevant to this committee.
In fairness, it is not relevant to this committee. How will this directive impact on the recognition of qualifications and awards by third level institutions in, say, the Czech Republic which will become a member on 1 May 2004? Given that a young person needs 590 points to do medicine and will have an opportunity to pursue a medical degree course in some of those countries from May will their qualifications be recognised in those countries following their accession in May? While this has to do with free movement of persons, it will be argued that free movement of persons without consequential recognition of the qualifications is an internal matter but at national level surely there will be an argument for our qualifications to be recognised in those countries that will be acceding in May. Similarly in a trans-territory situation, will the medical degree awards or accountancy qualifications obtained by personnel from Ireland who go to those countries for study, because they could not do so here due to the high number of points required, be recognised when they return to Ireland in four, five or six years' time? That is a pertinent question.
As late as last week I was asked by two parents of a young person whose child obtained 570 points, and was unable to gain access to his or her preferred course here, and who is contemplating pursuing the course in one of those other countries, what the impact would be. We have to look at the broader picture to ensure that if there are qualifications, awards and recognition criteria that our young people would also have the opportunity to gain those qualifications and bring back the benefits to Ireland in the future. Is there anything in this directive or in the wider field to ensure that wherever a person goes and gains some qualification or skill and returns to Ireland, as many did in the past and brought back many benefits to this country, that it is recognised?
Mr. Burns
There is nothing specific in this directive that would have any effect on that. On free movement, if one wants to work in a particular area that is regulated or where specific recognition is needed one would have to comply with the requirements there. I am not in a position to comment on medical qualifications. The mutual recognition of those qualifications is an issue that is dealt with in accession treaties but the specific question should be addressed to the Department of Health and Children.
I apologise for having to leave the meeting. On the numbers who may come here in the next few years there was some discussion at the time the treaty was negotiated that if the numbers became extraordinarily high, and if our situation changed, sanctions could be imposed. What is the situation because there is genuine anxiety that we may have more people than we can cope with, given the changed financial circumstances here?
Mr. Burns
It is primarily an issue for the labour market policy of the Department of Enterprise, Trade and Employment and the position it has set out is that from 1 May there will be free movement and there will be no requirement for work permits. Under the accession treaties there is a provision for a transition period for free movement for labour market purposes. Provided for in that is a two-year period during which national measures can be applied by member states to the new member states. Following that there is a three-year period during which the Commission will report on the situation in member states and member states will have to set out what they intend to do from then on. Following that there is a subsequent period of two years and, if evidence of a particular problem arises, action can be taken as an exceptional measure.
What has happened in practice is that a number of member states have said they will not apply any limits from 1 May next year. The United Kingdom, Denmark, the Netherlands, Sweden, Greece, Luxembourg and Spain have all said they will give free access from day one, and we are in the same position as them. As I mentioned earlier, the employment permits legislation brought in earlier this year would allow us, in the case of an emergency, to bring in a requirement for work permits to be provided for nationals of the new member states for a short period. There is no expectation that that will be needed but it is a fall-back position.
I take this opportunity on behalf of the committee of thanking Mr. Burns, Mr. Browne, Ms Gordon, Ms Hopkins and Ms Lyons for attending the meeting and setting out their presentation in clear language. One of the problems with some of these regulations is that they are fairly complex and one would need some legal training to decipher and analyse them. We thank the witnesses for their very clear presentation and for taking the time to answer the questions posed by members. We note the limitations they set out in terms of the degree to which they can give a view on matters, and we have to respect that.
The officials will be back before some other committee at a later stage, perhaps next year when there is chaos throughout the country.
I compliment the officials on the way they handled Deputy Ring's questions in particular. We are grateful and we look forward to the officials appearing before the committee again in the near future when we may need help in deciphering and analysing other documents. We are now given an opportunity to scrutinise some of this legislation, particularly that which will have an impact on us. The document presented today is concerned with incorporating the various principles in the original articles of the treaty, as far as I can recall, into a document that will give legal effect to them, taking account of the impact of the accession of other countries to the European Union in the future.