Political Compromise on a Recast Asylum Reception Conditions Directive: Dignity Without Autonomy?
By Lieneke Slingenberg, Associate professor at the Amsterdam Centre for Migration and Refugee Law of the Vrije Universiteit Amsterdam.
In 2016, as part of the European Agenda on Migration, the European Commission published a proposal for a recast of the Asylum Reception Conditions Directive. This proposal aimed to further harmonise reception conditions in the EU; reduce incentives for secondary movements; and increase applicants’ self-reliance and possible integration prospects. In 2018, the Council of the EU and the European Parliament reached provisional agreement on the proposal. However, the political representatives of the member states (in Coreper) could not agree with the compromise text andit was concluded that ‘further attempts at the technical level should be made to gain further support from delegations’. Subsequently, the presidency presented some amendments to the compromise text, on the basis of whichnegotiations had to be reopened. The proposal has, to date, not yet been adopted. See also here.
In its 2020 New Pact on Migration and Asylum, the European Commission indicates that it supports the political agreement reached and urges for adoption ‘as soon as possible’. From the ‘roadmap’, it appears that this should happen in the second quarter of 2021. At present, however, this seems unlikely given that Member States at the external border, in particular, insist on treating all CEAS legislation as a package.
In this blogpost I will discuss the most important changes laid down in the Commission proposal and the provisional compromise text, published in October 2020 and the further proposed amendments by the Council (referred to together as ‘the proposals’), as compared to the current Asylum Reception Conditions Directive 2013/33/EU, against the background of relevant CJEU case law. The first section will discuss a few issues where the proposals provide for more clarity in the obligations for Member States and decrease Member States’ discretion. The second section deals with the relevant concept of a ‘dignified standard of treatment’. The third section discusses a few proposals that do not limit Member States’ discretion, but considerably limit applicants’ autonomy. I will not pay much attention to the detention of asylum seekers, as this has been dealt with already in the blogpost of Galina Cornelisse.
1. MORE CLARITY, LESS DISCRETION?
Conditions for the reception of asylum seekers have been a matter of EU law since 2003, when the first Directive on minimum standards for the reception of asylum seekers 2003/9/EC was adopted. As that Directive allowed Member States ‘a wide margin of discretion concerning the establishment of reception conditions at national level’ (see 2008 Commission proposal), a recast was adopted in 2013. In its 2016 proposal, the Commission observes again that reception conditions ‘continue to vary considerably between Member States both in terms of how the reception system is organised and in terms of the standards provided to applicants’. The proposal aims, therefore, once again to further harmonise the reception conditions in the EU. In this section I will list a few examples of where the proposals meet this objective by providing more clarity and reducing Member States’ discretion.
The provision on scope, Article 3 of the Directive, has not been changed substantively by any of the proposals. However, the moment as from which Member States should provide reception conditions has been clarified in Article 16 of the proposals. This provision indicates that Member States should make material reception conditions available as from the moment applicants make their application in accordance with Article 25 of the proposed Asylum Procedure Regulation. This article stipulates that an application is ‘made’ when somebody expresses a ‘wish for international protection to officials of the determining authority or other authorities referred to in Article 5(3) or (4)’. Accordingly, it is now clear that from the moment an applicant expresses a wish to apply for international protection, (s)he falls under the scope of the Reception Conditions Directive, no formal lodging or registration is necessary. This is in conformity with the interpretation by the CJEU of the current Asylum Procedure Directive 2013/32/EU (see CJEU 25 June 2020, case C-36/20 PPU (VL)).
In this light, it is hard to understand the Commission’s remarks in the explanatory memorandum to the new Proposal for a Screening Regulation (see on this proposal the blogpost of Lyra Jakulevičienė). The Commission states that persons who apply for international protection at the border crossing point or during the screening procedure, should be considered as applicants for international protection. However, ‘the legal effects concerning the Reception Conditions Directive should apply only after the screening has ended’, according to the Commission. This also seems to follow from Article 9(2) and (3) of the Proposal for a Screening Regulation that oblige Member States to identify special reception needs and provide adequate support. This is an obligation that already follows from the Reception Conditions Directive (see below); so, apparently, the idea is that this Directive does not yet apply. Accordingly, the different proposals (on reception conditions, asylum procedures and screening) are clearly not yet completely in line with each other. This should be clarified during the legislative procedure. In order to safeguard a dignified standard of living, which is required under the Charter (see below) and in order to ensure legal clarity and a high level of harmonisation, the Reception Conditions Directive should apply during the screening procedure.
As regards the authorities to which applicants can express their wish for international protection, the new proposals are more limited than the current provisions. The current provisions, as interpreted by the CJEU in VL, allow for making an application with a broad range of authorities, not limited to those that are qualified to register applications under national law. This helps, according to the CJEU, to ensure applicants effective access to the procedure. The proposed Asylum Procedure Regulation, however, limits the definition of ‘making an application’ to expressing a wish for international protection to one of the authorities that are explicitly entrusted with registering applications under EU or national law, in line with Articles 5(3) and (4) of the proposed Regulation. For the scope of the new Asylum Reception Conditions Directive this means that applicants would no longer fall under the scope if they express their wish to an authority that is not competent to register applications.
Definition of absconding
Another issue on which the new proposals provide more clarity is the issue of absconding. As Galina Cornelisse writes in her blog on detention, this concept is important as it is used in the proposal for the Asylum Reception Conditions Directive as a new ground for restricting applicants’ freedom of movement (Article 7) and as a new ground of detention (Article 8). Until now, EU law does not contain a definition of this concept, even though it is already a relevant concept in for example the Dublin III Regulation (EU) No 604/2013. The Commission proposes to define absconding as ‘the action by which an applicant, in order to avoid asylum procedures, either leaves the territory where he or she is obliged to be present (…) or does not remain available to the competent authorities or to the court or tribunal’ (Article 2(10)). This definition includes the intention to avoid asylum procedures in the concept of absconding. In the compromise text, this definition has been changed and simply refers to the ‘action by which an applicant does not remain available to the competent administrative or judicial authorities’ (Article 2(11)). Leaving the territory of the Member State without authorisation is mentioned as an example of absconding, but only if this is for reasons which are not beyond the applicant’s control. The compromise text does no longer refer to any intention behind or purpose for not remaining available. From accompanying documents to the compromise text, it appears that the definition of absconding is almost entirely based on the Council position, as this was one of the provisions of ‘crucial importance to the Member States’. Deleting a reference to the intention is, therefore, intentional. Even though the ordinary meaning of the term ‘absconding’ implies ‘the intent of the person concerned to escape from someone or to evade something’, according to the CJEU in the case of Jawo (19 March 2019, case C-163-17),this will not be part of the EU definition if the compromise text on this is adopted. Possibly this is due to the fact that the authorities will likely encounter considerable difficulties in providing proof of the intentions of persons concerned, as also noted by the CJEU in the case of Jawo.
Definition of material reception conditions
The Commission proposes to add ‘other essential non-food items matching the needs of the applicants in their specific reception conditions, such as sanitary items’ to the definition of material reception conditions (Article 2(7)). The Compromise text limits this to ‘personal hygiene products’. This is an important addition to the provisions that Member States need to ensure for applicants and is in line with the judgment of the ECtHR in the case of M.S.S. v. Belgium and Greece (21 January 2011, no. 30696/09), in which it refers to the applicants’ most basic needs as ‘food, hygiene and a place to live’.
Access to employment
Next to harmonisation, one of the main aims of the recast of the Directive is to increase applicants’ self-reliance and possible integration prospects. In line with this, the Commission proposes to oblige Member State to provide applicants with access to the labour market six months after the lodging of the application, instead of the current nine months. The compromise text limits the discretion of Member States a bit further by stipulating that the deadline of six months starts after the registration of the application (for which, contrary to the formal lodging of an application, strict deadlines are laid down in the proposal for an Asylum Procedures Regulation). Both proposals do not change that access to the labour market only needs to be provided if no decision on the application for international protection has been taken by the competent authorities within these six months. Accordingly, if the authorities decide to reject the application for international protection within six months (which is the normal time limit for deciding on an asylum application under the proposed Asylum Procedure Regulation), applicants can still be denied access to employment during the entire asylum procedure, including the appeal phase. Also the possibility to give priority to nationals, Union citizens or lawfully staying TCN’s when filling a specific vacancy stays intact.
In addition, the proposals introduce two new exclusions from the labour market. First of all, Member States are not allowed to grant access to the labour market to applicants whose application is examined in an accelerated asylum procedure, in accordance with Article 40(1)(a)–(f) of the proposed Asylum Procedure Regulation. The compromise text adds that if access is already granted, it will be withdrawn. This includes applicants who have withheld relevant facts, are from a safe country of origin or are found to have made an application merely to delay or frustrate a return decision. Since the proposals use the term ‘shall’, Member States have no discretion to grant them the possibility to work.
Secondly, applicants who are subject to a Dublin transfer decision are excluded from access to the labour market (Article 17a of the Proposals). The Court of Justice has recently ruled that under the current Directive 2013/33/EU applicants as regards to whom a transfer decision has been taken cannot be excluded from the labour market (K.S. and others, 14 January 2021, Cases C‑322/19 and C‑385/19). Interestingly, the Court of Justice did not only base its judgment on the text of the Directive but also on the requirement to ensure a dignified standard of living and on the Directive’s objective to ‘promote the self-sufficiency of applicants’. The reasoning adopted by the Court would, therefore, still be relevant if the new Proposals are adopted. In this light, the lawfulness of these exclusions from the labour market would be questionable.
The proposals further lay down that applicants should receive equal treatment with nationals as regards terms of employment, freedom of association and affiliation, education and vocational training, branches of social security, recognition of diplomasand access to appropriate schemes for the assessment, validation and recognition of applicants’ prior learning outcomes and experience. This kind of equal treatment also helps, according to the Commission, to avoid distortions in the labour market. Even though equal treatment on these issues will be the main rule, the proposals allow Member States to restrict this in different ways, for example by excluding grants and loans related to education and vocational training or social security benefits which are not dependent on periods of employment or contribution. On these issues, Member States, therefore, retain some discretion.
Concept of vulnerability deleted
Both the old (2003/9/EC) and the current Asylum Reception Conditions Directive (2013/33/EU) refer to the concept of vulnerability and stipulate that Member States should take into account the specific situation of vulnerable persons (Articles 17 and 21 respectively). Whereas Directive 2003/9/EC limited this obligation to persons found to have special needs, Directive 2013/33/EU lays down the opposite and holds that only vulnerable persons may be considered to have special needs. Both directives also include a list of examples of vulnerable groups. In its 2016 proposal the Commission deletes all references to vulnerability and specifies that Member States need to take into account the specific situation of applicants with special reception needs. The Commission also proposes to delete the list of examples of vulnerable groups, but the compromise text includes and extends this list of examples of persons who are ‘more likely to have special reception needs’. This might blur the obligation a bit again, as the possible special needs of all applicants need to be assessed. In addition, the proposals further clarify the assessment procedure for identifying special needs, by including specific obligations for the personnel of the competent authorities and, in the compromise text, a deadline for completing the assessment.
Other provisions on specific vulnerable groups have also been clarified. For example, the proposals lay down a time limit for Member States to designate a guardian/representative for an unaccompanied minor. The Commission proposes to oblige Member States to assign a guardian for unaccompanied minors within five working days of the making of an application. The compromise text sticks to the current formulation of a ‘representative’ instead of a guardian and extends the time limit for designating one to 15, and exceptionally 25, working days (both at the wish of the Council, see here). However, this proposal obliges Member States to designate a person who is suitable to provisionally assist the minor until a representative has been designated. Both proposals further clarify Member States’ obligations by including a definition of guardian/representative and by stipulating that a guardian/representative is not put in charge of a disproportionate number of unaccompanied minors. In the compromise text this is even set on a maximum of 30 (exceptionally 50). This maximum number was included at the wish of the European Parliament.
Reduction and withdrawal of reception conditions
Since the first Directive on reception conditions (2003/9/EC) Member States have been allowed to reduce or withdraw reception conditions on a limitative number of grounds, for example if an applicant does not comply with certain obligations, has lodged a subsequent application or has abandoned the place of residence. Just as in the 2008 proposal for a recast of this first Directive, the Commission proposes in its 2016 proposal to delete the possibility to entirely withdraw all reception conditions on one of these grounds. Instead, the Commission proposes to allow Member States to reduce or withdraw the daily expenses allowance or to replace financial benefits with benefits in kind. The accompanying document to the compromise text shows that, again, the Member States are not willing to give up their possibility to entirely withdraw all reception conditions. Yet, they are willing to limit this to the situation that an applicant ‘has seriously or repeatedly breached the rules of the accommodation centre or has behaved in a violent or threatening manner in the accommodation centre’. This limits Member States’ discretion significantly. Based on case law of the CJEU, however, even this possibility might no longer be lawful, as the CJEU has ruled that a withdrawal of material reception conditions on the basis of violent behaviour is not in conformity with Member States’ obligation to ensure a dignified standard of living and with the proportionality principle (Haqbin, case C-233/18).
In addition to withdrawing material reception conditions in case of violent behaviour, the compromise text proposes to allow Member States to reduce or withdraw the daily expenses allowance or, if this is duly justified and proportionate, reduce other material reception conditions on one of the enumerated grounds. As compared to the current Asylum Reception Conditions Directive 2013/33/EU, this means that the justification requirement now also applies to decisions to reduce (and not withdraw) material reception conditions (other than the daily expenses allowance). However, contrary to the Commission proposal, the possibility to reduce material reception conditions stays intact. The accompanying document to the compromise text shows that this is based on the council position, while the European parliament had strong reservations. I believe the Commission’s proposal to only allow Member State to reduce the daily expenses allowance or to replace financial benefits with benefits in kind provides clearer rules. It is hard to imagine how reduced benefits in kind are different from a situation in which those benefits are withdrawn, but a dignified standard of living is still ensured, as required under the proposals.
2. THE UNCLEAR BUT RELEVANT ‘DIGNIFIED STANDARD OF LIVING’
The Commission refers in three provisions of its proposal to a ‘dignified standard of living’. Member States should ensure a dignified standard of living in cases where they do not provide the regular material reception conditions. The regular material reception conditions need to ensure ‘an adequate standard of living, which guarantees their subsistence and protects their physical and mental health’ (Article 16(2)). Member States can deviate from this standard, and merely ensure a dignified standard of living in three situations: if 1) in duly justified cases, they exceptionally set different modalities for reception conditions when an assessment of special needs is required or when housing capacities normally available are temporarily exhausted (Article 17(9)); 2) they are not the responsible Member State under the Dublin Regulation for the applicants concerned (Article 17a(2)); and 3) they replace, reduce or withdraw reception conditions on one of the grounds laid down in Article 19. A ‘dignified standard of living’ is, therefore, the absolute minimum that Member States should ensure under all circumstances, and that lies below the regular minimum level of an ‘adequate standard of living’ (that, on its turn, may lie below the adequate standard of treatment for nationals, see Article 16(6)). Even though the concept of a dignified standard of living is, as an absolute minimum standard of treatment, one of the key concepts of the Directive, this concept is not further defined. It is unclear what kind of provisions need to be available to ensure applicants a dignified standard of treatment and how this differs from the general adequate standard of treatment.
To confuse things further, the compromise text has replaced the term ‘dignified standard of treatment’ with ‘a standard of living in accordance with Union law, including the Charter of Fundamental Rights of the European Union, and international obligations’. The general standard of treatment in the compromise text is formulated as ‘an adequate standard of living for applicants, which guarantees their subsistence, protects their physical and mental health and respects their rights under the Charter of Fundamental Rights of the European Union’. As both standards of treatment refer to the Charter of Fundamental Rights, the difference between the two is even harder to understand.
In the case of Haqbin (12 November 2019, case C-233/18), the CJEU was asked to interpret the provision on reduction and withdrawal of reception conditions. The CJEU concluded, with reference to Article 1 of the Charter, that a sanction that consists in the withdrawal, even if only a temporary one, of material reception conditions relating to housing, food or clothing is irreconcilable with the requirement to ensure a dignified standard of living for the applicant. The Court of Justice, therefore, uses a lower threshold than the one necessary to reach the minimum level of severity under Article 3 ECHR, as interpreted by the European Court of Human Rights (see for example N.H. and others v. France, 2 July 2020, nos. 28820/13, 75547/13 and 13114/15). This raises the question whether it is possible at all to make a distinction between the EU legal concept of a dignified standard of living and an adequate standard of living. It follows that the possibility to deny all material reception conditions to applicants who are not in the Member State that is responsible under the Dublin Regulation, as laid down in the proposals, is not in conformity with the Charter. The same is true for the possibility to withdraw material reception conditions in case an applicant has seriously or repeatedly breached the rules of the accommodation centre or has behaved in a violent or threatening manner in the accommodation centre, as laid down in the compromise text (see above).
3. LESS AUTONOMY FOR APPLICANTS
Most of the proposals discussed in section 1 result not only in more clarity and less discretion for Member States, but also in a (small) increase in rights for applicants for international protection. Other proposals do not necessarily limit Member States’ discretion or increase applicants’ rights, but, to the contrary, limit applicants’ autonomy. This section will discuss a few examples of such proposals.
The proposals provide in different ways for further limitations on applicants’ possibilities to choose a place of residence. First of all, the proposals introduce sanctions for applicants who are present in a Member State other than the one in which the applicant is required to be present. See on this also Daniel Thym’s blog on secondary movements. On the basis of the Commission proposal, such applicants would not be entitled to schooling and education for minors, access to the labour market, and general material reception conditions. They should be provided, however, with a dignified standard of living (see above) and ‘suitable educational activities’ for minors. The compromise text limits these possibilities a bit by not excluding such an applicant from the provision on schooling and education for minors and by stipulating that the applicant will only be excluded from access to the labour market and material reception conditions from the moment s/he has been notified of a decision to transfer him or her to the Member State responsible in accordance with the Dublin Regulation.
The proposals do not only provide for punishments for applicants who are subject to a Dublin transfer, but also allow Member States to impose different kind of residence restrictions on other applicants. As compared to the current Asylum Reception Conditions Directive 2013/33/EU, the proposals have much more emphasis on restrictions on freedom of movement. This is especially the case for the compromise text, in which no less than three provisions deal with residence restrictions. Articles 6a, 6b and 7 include four different kind of residence restrictions that increase in the degree of severity:
The provisions also include different safeguards, such as in Article 6a that Member States need to ensure that applicants effectively benefit from their rights under this Directive and take into account family unit and in article 6b that Member States need to ensure that the geographical area is sufficiently large, that there is access to necessary public infrastructure and that the applicants’ unalienable sphere of private life is not affected. However, both these provisions also indicate that Member States are not required to adopt administrative decisions to allocate applicants and from Article 25(1) it appears that Member States do not have to enable applicants to lodge an appeal against the allocation (only against refusal of permission to leave or against the consequences for non-compliance). From the accompanying document to the compromise text it appears that allocation to a geographical area ‘without any administrative or judicial decision’ was of crucial importance for the Member States, on which the European Parliament had strong reservations. Article 7 has more procedural safeguards, does not allow Member States to act without any administrative decision and does provide for judicial protection.
As all three provisions have ‘may clauses’, use general and broad conditions, and two of them allow Member States to act without an administrative decision, this is clear example of an issue on which Member States still have a lot of discretion, while applicants’ autonomy is limited. This is further strengthened by the proposal to define a risk of absconding, which is one of the conditions for imposing the most far-reaching residence restrictions, as not requiring any intention on the side of an applicant (see above).
Daily expenses allowance
The Commission proposes to retain the current obligation for Member States, to provide all applicants, in addition to housing, food and clothing, with a daily expenses allowance (Article 2(g) of Asylum Reception Conditions Directive 2013/33/EU). The European Parliament agreed with this proposal ‘in order to ensure a minimum autonomy to the applicants’. The Council, however, wished to provide Member States the possibility of providing the daily expenses allowance fully in kind or in vouchers. As a compromise, a new definition of the daily expenses allowance is included in the compromise text:
‘an allowance provided to applicants periodically for them to enjoy a minimum degree of autonomy in their daily life in the form of a monetary amount, vouchers, or in kind, for example in products, or a combination of any of the three, provided that such an allowance includes a monetary amount’
The presidency of the Council emphasized that this definition does not specify the starting moment for providing the monetary amount, nor the exact part that it should constitute. Hence, this is another example of an increase in Member States’ discretion, at the expense of applicants’ autonomy.
New ground for reduction and withdrawal: non-compliance with integration measures
A final example is a new ground for reducing benefits. Material reception conditions can be reduced and the daily expenses allowance can be withdrawn if applicants fail to participate in mandatory integration measures. The compromise text adds an exception for circumstances outside the applicant’s control. Even though both proposals introduce a shorter time limit for accessing the labour market as a means to increase integration prospects for applicants, both proposals apparently also see integration as a duty for refugees that can be enforced by withholding benefits.
If the current compromise text on a recast for the Asylum Reception Conditions Directive will be adopted, as urged by the Commission in the New Pact on Migration and Asylum, this will have a considerable impact for both Member States and applicants.
Overall, Member States will have more positive obligations under the new recast Asylum Reception Conditions Directive to provide applicants with reception conditions, including personal hygiene products, to provide applicants with equal treatment as nationals as regards some working conditions and social security benefits, and safeguard applicants’ special needs. This means that applicants’ standard of living will be better ensured. On the other hand, Member States will have more possibilities (or even obligations) to interfere with applicants lives and limit their autonomy, by determining their place of residence, withholding a daily expenses allowance, subjecting applicants to integration measures and exclude them from the labour market. Applicants’ freedom, especially in a negative sense, will, therefore, not increase, or even diminish, if the proposals are adopted.
The proposals are not completely in line with CJEU case law, some of which is adopted after the compromise text was drafted. This is not necessarily a problem. The legislator is, of course, free to change the legislation. If the judgments were based on the wording of the current provisions (e.g. the V.L. case on the scope of the Directive or the Jawo case on the definition of absconding), these judgments will no longer be relevant if the proposals are adopted. But where the proposals refer to human dignity and/or the EU Charter on Fundamental Rights and the CJEU (partly) based its interpretation on those rights and concepts as well (such as in the Haqbin case on temporary withdrawing reception conditions and the K.S. and others case on access to employment), this becomes more problematic. As regards the exclusions from employment and from material reception conditions, the lawfulness of the proposals is questionable. The concept of a ‘dignified standard of living’, and the differences with the general standard of living for applicants (if any), need, therefore, to be further clarified in the final negotiations.
Minos Mouzourakis, ‘The reception of asylum seekers in Europe: failing common standards’, EU Immigration and Asylum Law Blog of 20 April 2016.
Paul Minderhoud and Karin Zwaan (eds.), The recast Reception Conditions Directive. Central Themes, Problem Issues, and Implementation in Selected Member States, Wolf Legal Publishers 2016.
Lieneke Slingenberg, ‘The Right not to be Dominated: The Case Law of the European Court of Human Rights on Migrants’ Destitution’, Human Rights Law Review 2019, 19(2), 291-314.
Lieneke Slingenberg, ‘Asylum seekers’ access to employment: tensions with human rights obligations in the recast of the directive on reception conditions for asylum seekers’, in: C. Matera & A. Taylor (Eds.), The Common European Asylum System and human rights: enhancing protection in times of emergenciesCLEER T.M.C. Asser Institute 2015.
Lieneke Slingenberg, The Reception of Asylum Seekers under International Law. Between Sovereignty and Equality, Oxford: Hart Publishing 2014.
Lilian Tsourdi, ‘Chapter 10. EU Reception Conditions: A Dignified Standard of Living for Asylum Seekers?, in V. Chetail, P. De Bruycker and F. Maiani (Eds.), Reforming the Common European Asylum System. The New European Refugee Law, Brill 2016, pp. 269-316.
Commission Communication on a New Pact on Migration and Asylum, COM(2020) 609 of 23 September 2020.
Commission Proposal for a Directive of the European Parliament and of the Council laying down standards for the reception of applicants for international protection (recast), COM(2016) 465 final, of 13 July 2016.
Directive 2013/33/EU of the European Parliament and of the Council of 26 June 2013 laying down standards for the reception of applicants for international protection (recast) – Conditional confirmation of the final compromise text with a view to agreement, Council Document 10009/18, of 18 June 2018.
Proposal for a Directive of the European Parliament and of the Council laying down standards for the reception of applicants for international protection (recast) – State of play and guidance for further work, Council Document 5458/19 of 21 January 2019.