The principle effect that the directive has is to extend the level of protection from discrimination on the grounds of race currently enjoyed by UK citizens to citizens of other Member States, and to UK citizens and third country nationals staying or working in Member States. I would like to set out the key issues that remain for us, and the positions we aim to secure before giving agreement. The UK is seeking amendments to the current text which would give sufficient flexibility for services linked to immigration status, in line with current UK law. Whilst the operation of immigration and border control functions is not included in the material scope of the draft directive, it leaves ambiguous the ability to make decisions about entitlement to social protection and social security, which is included in its material scope, for those persons whose immigration status has not yet been decided. Whilst it allows for discrimination on the basis of nationality, immigration decisions are not made solely on that basis.
Ethnic origin can be an important consideration, when reaching decisions.
For example, the exceptional leave to remain that was granted by the UK to Kosovan Albanians was done so on the basis of their ethnic origin, i.e. Albanian, not their national origin. The same provision was not extended to Kosovan Serbs. Under the directive as it stands, this would not be lawful. Definition of indirect discrimination We are concerned that the agreed definition of indirect discrimination should maintain as much continuity as possible with our current approach. The difficulties experienced in agreeing a definition stem, from the difficulties that a requirement to use a statistical test would cause for some Member States, due to their national practices, in particular constitutional positions on the collection of certain types of demographic data.