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by Minos Mouzourakis, European Council on Refugees and Exiles 

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Europe’s ongoing failure to find humane responses to the plight of refugees has primarily impacted on the living conditions available to those seeking asylum in the continent. In the European Union (EU), the Common European Asylum System lays down, in the recast Reception Conditions Directive, an elaborate set of obligations on Member States with regard to the conditions under which asylum seekers should be received, ranging from accommodation to health care, employment and education, as well as due care to persons with special needs. Yet the implementation of these obligations has been severely undermined in Europe’s emergency-driven response to the so-called “refugee crisis” in recent months, as documented by the Asylum Information Database  research in 20 European countries: Austria, Belgium, Bulgaria, Cyprus, Germany, Spain, France, Greece, Croatia, Hungary, Ireland, Italy, Malta, the Netherlands, Poland, Sweden, the United Kingdom, Switzerland, Serbia and Turkey.

With the expiry of the deadline for the transposition of the recast Reception Conditions Directive in July 2015, more stringent obligations have become binding upon most EU Member States with regard to providing accommodation and other reception conditions to applicants for international protection. Yet the sharp increase in arriving asylum seekers, coupled with a lack of preparedness on the part of European asylum systems to adjust to higher numbers, has revealed more marked a divide than ever between the theory and reality of reception standards.

1. The use of detention as an accommodation strategy

Reception and detention of asylum seekers are ostensibly separate legal and factual spheres; the special framework reserved to detention in the recast Reception Conditions Directive tells as much. Yet the line between accommodation and confinement upon arrival remains no less contentious today than it was twenty years ago, when the European Court of Human Rights delivered its ruling in Amuur v France. Blurred boundaries have led to asylum seekers being de facto deprived of their liberty in transit zones at the border, be they at international airports in Germany, the Netherlands or Serbia, or at Hungary’s land frontiers. More recently, the introduction of the “hotspot” approach has also placed greater emphasis on detention as a strategy of initial accommodation in European countries. In the “hotspots” of Italy and Greece , asylum seekers and migrants have found themselves in a state of detention in all but name. Similar practices are followed beyond the “hotspots”. In Bulgaria, applicants are detained for an average of twelve days in the Elhovo detention centre before being channelled to other facilities, while in Malta, initial reception centres are presented as a “contained environment” likely to infringe entrants’ right to liberty.

2. Destitution and emergency accommodation: beyond exceptionality?

Article 17 of the Reception Conditions Directive provides that “material reception conditions” need to “provide an adequate standard of living for applicants, which guarantees their subsistence and protects their physical and mental health”. The Court of Justice of the European Union (CJEU) has also referred to the EU Charter of Fundamental Rights in the case of Saciri to clarify that, as a set of measures apt to guarantee asylum seekers dignified living, subsistence and physical and mental health, reception must be sufficiently stable and adequately satisfy health and other material needs of those undergoing an (often lengthy) asylum procedure.

These guarantees have been jeopardised throughout the continent following the summer of 2015, as the majority of European Member States reception systems have been unprepared to respond to increases in arrivals. The limited resilience of asylum systems has been visible in countries receiving most applicants such as Germany, Austria and Sweden, but also in those faced with much milder increases in arrivals, including France, the United Kingdom or Cyprus. Despite what has been acknowledged as an unprecedented refugee movement into the continent last year, high-level political commitments for an increase in reception capacity Europe-wide, not least at the Western Balkan Leaders’ Meeting of October 2015, have regrettably remained ‘dead letter’ for countries of transit such as Serbia or Croatia.

As a result, overcrowding in substandard living conditions and destitution seem to have become an integral part of the asylum process, contrary to Member States’ reception obligations and human rights standards. On the other hand, emergency accommodation solutions have been resorted to far beyond the exceptional boundaries allowed by Article 18(9)(b) of the recast Reception Conditions Directive. Over half a year following the start of the so-called “refugee crisis”, asylum seekers still risk navigating lengthy refugee status determination processes in emergency facilities affording minimal conditions. As many as 56,000 asylum seekers have been staying in such sites in Sweden, while 6,000 applicants remain accommodated in Austria’s transit facilities designed for very short stays.

3. Missing vulnerability and special needs

Another critical challenge to the operation of European reception systems has been the obligation of states to identify vulnerabilities and provide appropriate reception to persons with special needs, as required by Article 22 of the recast Reception Conditions Directive. While in Sweden, Croatia or Poland, procedures to identify such asylum seekers have still not been sufficiently spelt out, the large numbers of arrivals in countries such as Germany or Greece have driven identification processes to near collapse. In light of this, states have failed to provide specifically tailored accommodation to those in need of special reception arrangements. Separated children have suffered from squalid conditions in the Calais and Dunkirk makeshift camps in France, or stayed in large emergency facilities without adequate support in Germany and the Netherlands. In Greece and Italy, they have also been kept in detention due to the lack of places in specialised child centres. These images have manifested the deep divide separating the promise of the second phase of the Common European Asylum System to protect asylum seekers with acute reception needs from its practical implementation.

4. Growing discrimination on grounds of nationality in reception

At the same time, the intensification and politicisation of the refugee debate has also directed European countries, more markedly than before, to an oversimplified binary between those presumed to be in manifest need of protection and those who are not and who ought to be deported. This approach has de facto created categories of protection seekers receiving different treatment, with the dividing lines drawn on the basis of nationality. In the case of Germany and Turkey, nationality-based distinctions have also been drawn in the legal framework. These practices contradict the 1951 Refugee Convention and human rights obligations, which require equal treatment in the provision of rights and guarantees to all persons seeking international protection.

As many as seven EU Member States resort to some form of discrimination in the reception process by privileging certain nationalities over others. By way of example, Austria has imposed longer delays on asylum seekers from Algeria, Morocco and Tunisia before they can be assigned an accommodation place, while a similar practice has been followed by Belgium in respect of Afghan asylum seekers. More worryingly, authorities in Italy, Greece and Bulgaria have systematically detained specific nationalities of asylum seekers on the assumption that they do not have protection needs, in clear contradiction of the guarantees attached to the right to liberty under Article 5 of the European Convention on Human Rights (ECHR) and Article 8 of the recast Reception Conditions Directive.

When put to the test, common reception standards have therefore failed to guarantee adequate living conditions for those seeking protection in Europe. The reform of the Common European Asylum System announced by the European Commission on 4 April envisages closer coordination between Member States’ reception agencies and further approximation of standards. However, European countries appear no less averse towards building resilient asylum systems able to ensure dignified reception for larger numbers of people. As the recent EU-Turkey deal confirms, focus remains on strategies of containment of asylum seekers, be it outside the EU or in frontline Member States.