The CJEU secures asylum seekers' right to family housing

Professor Steve Peers, University of Essex

What obligations do Member States have to ensure that asylum-seeking families are housed adequately? The Court of Justice of the European Union (CJEU) has today usefully clarified the minimum standards which Member States must observe on this issue, in its judgment in Saciri. This judgment is a welcome confirmation that whatever the practical difficulties facing Member States in managing their reception for asylum-seekers, families cannot simply be left homeless or forced to live in grossly inadequate conditions by means of the refusal of support for financial assistance to obtain housing.

Judgment

The case concerns a family of asylum-seekers (two parents and three children) who needed accommodation in Belgium while their asylum application was being considered. The Belgian agency responsible for reception of asylum-seekers replied that it could not provide reception, and referred them to the social assistance agency. Since the Saciri family could not pay the rent being charged for private properties, they asked the social assistance agency for financial support.

But there was a 'Catch-22': the agency refused to give them support, since the family was not living in accommodation provided for by the reception agency - even though the reception agency had told them that it could not help them. A lower court in Belgium ruled that the reception agency had to pay them financial support, and that agency appealed to the referring court, which asked the CJEU questions about the EU's first-phase reception conditions Directive.

First of all, the CJEU pointed out that the Directive allows for support for asylum-seekers either in kind (ie providing housing directly) or by providing financial allowances. Then it confirmed its prior case law (Cimade and GISTI) to the effect that benefits must be provided as soon as the asylum application is made, in particular in light of the right to human dignity set out in the EU Charter of Fundamental Rights.

Next, as for the amount of the financial allowances, regardless of how the aid is provided, the Directive states that it must ensure a dignified standard of living for applicants' health, as well as subsistence. Member States must also, according to the Directive, take account of those with special needs (including minors), entailing a requirement to preserve family unity as well as the best interests of the child. The CJEU confirmed that these principles meant that applicants must be able to obtain housing on the private market if necessary, although this did not mean that asylum-seekers could make their own choice of housing.

The CJEU then ruled that, although the specific rules in the Directive relating to housing only apply where the housing is provided in kind by Member States, it still followed that any allowances provided to assist with housing had to ensure the unity of the family.

Finally, the Court ruled that where accommodation facilities are overloaded, it was open to Member States to refer asylum-seekers to the authorities responsible for public assistance, provided that the latter authorities ensure that the minimum standards in the Directive are met.

The Court concluded by noting that 'saturation of the reception networks [is not] a justification for any derogation from meeting' the standards in the Directive.

Comments

The CJEU's judgment neatly addresses the 'Catch-22' created by national law, which to some extent reflects the structure of the Directive. On the one hand, the Directive lays out general rules on reception support, but then on the other hand, it only lays out detailed rules as regards housing where the State provides such housing in kind. What if the State does not, or cannot, provide for housing in kind?

The Court's answer to this question takes account of the definition of 'material reception conditions' in the Directive, which expressly includes 'housing'. So it logically follows that such material support must include assistance to obtain housing, where no housing is provided for in kind.

Moreover, it is expressly clear from the Court's judgment that a family of asylum-seekers is entitled to support to obtain family housing on the private market, although the Court does recognise that the asylum-seekers do not have a fully free choice of where they may be housed. This necessarily means that, if there is no publicly-provided accommodation available, the authorities must ensure that a family of asylum-seekers has enough support to afford to rent a property at market rates, which is big enough to house their family in dignity. But the house need not be palatial. Probably this means that a family of five cannot demand enough financial support to rent a four-bedroom house; but neither can they all be expected to sleep on the same sofa.

The Court's answer to these questions was not affected by the overloading of the Member State's reception system. This had practical consequences, in that asylum-seekers can be referred to the social assistance agency instead of the reception agency, and be provided with a financial allowance instead of housing in kind. But the basic obligation to provide enough assistance to ensure a minimum dignified level of accommodation, including family unity, cannot be derogated from.

Finally, it should be noted that the judgment takes a stronger approach to family unity than the wording of the Directive, which states only that family unity shall be ensured 'as far as possible', and only where Member States provide for accommodation in kind. The Court's judgment means instead that families of asylum-seekers must be able to live together in all cases, if necessary in private accommodation, even if this means some additional cost or administrative inconvenience for Member States. This can only be welcomed, as it is an essential step to ensure the protection of the family life of some of the most vulnerable people in the European Union.

Barnard & Peers: chapter 26