The 'emergency brake' on EU citizens' benefits: Must the Commission or Council control it?

Steve Peers, Professor of Law, University of Essex

One issue that has arisen in the UK’s renegotiation of EU membership is the procedure for the UK (or other Member States) invoking an ‘emergency brake’ to limit access to in-work benefits by EU citizens. Should a Member State be able to pull the ‘emergency brake’ on its own initiative (perhaps with a requirement to notify the Commission and Council)? Or should it only be able to make a request to that effect, with the Commission and/or Council deciding on whether to authorise it?

The following analysis demonstrates that there is no legal rule which requires that only the Commission and/or Council can authorise a Member State to pull the emergency brake. Therefore it is a matter of political discretion to decide on who should pull it.

Treaty rules

There is no general rule in the Treaty governing the use of Member States’ safeguards and derogations. The possible limits on free movement rules on grounds of public policy et al refer only to decisions by Member States’ governments, although the EU institutions have the power to adopt legislation on these issues. Similarly, the power to disapply EU law in times of war, threat of war or civil disturbance is invoked by Member States; the Treaty only refers in this case to discussions with the Commission, and a possible special procedure before the Court of Justice. (To keep this text readable for non-lawyers, I have put the precise details of all the laws referred to in an annex.)

On the other hand, there are some Treaty Articles which provide for authorisation for Member States’ action by the Commission (as regards higher national standards following internal market harmonisation), or by the Council (to authorise a state aid which the Commission has ruled out, or to permit a tax rule restricting movement of capital to third countries).

The Treaty provisions most directly relevant to social security and immigration of large numbers of people give the final say to Member States. In particular, if a Member State pulls an ‘emergency brake’ to stop EU decision-making on social security for EU citizens exercising free movement rights, there is discussion in the European Council, but the proposal can ultimately be blocked if there is no agreement there among all Member States. The case law of the CJEU implicitly confirms that if Member States wish to restrict the free movement of EU citizens on grounds of public health, they may do so without being subject to an EU control procedure (Bressol). And the power to control the volumes of non-EU citizens coming from third countries to the EU to work rests entirely with the Member States.

In certain cases, the CJEU has insisted upon a Community (EU) control procedure for Member States’ derogations. But those cases apply to circumstances where the EU both has exclusive competence, and there are Treaty provisions relating to the control procedure. In Commission v UK, the Court relied on the 1972 Act of Accession and the exclusive EU competence over fisheries conservation to justify its conclusion that Member States have ‘special duties of action and abstention’ where the Commission has made proposals to the Council which had not yet been adopted, entailing prior Commission approval of Member State action. In its subsequent judgment in Bulk Oil, the Court essentially confined the Commission v UK judgment to its particular facts.

In Donckerwolke, the Court stated that national measures relating to trade with non-EU countries needed Commission approval. Again, though, this was in light of the exclusive EU competence in the area, and in particular of Article 115 EEC (since repealed), which detailed this process. The exclusive EU powers over these two issues can be distinguished from the shared power over the internal market. 

Secondary law

The most relevant provisions in EU secondary legislation tend to give power to Member States to trigger derogations, with at most an information and consultation requirement for the EU institutions. Most significantly, the EU citizens’ Directive leaves it entirely to Member States to trigger the exceptions to EU citizens’ access to benefits. The EU’s patients’ Directive (more on that Directive here) allows Member States to limit reimbursement of costs incurred by patients in other Member States, subject only to a requirement to inform the Commission.

Equally the legislation referring to movements of large numbers of third-country nationals reserves power to Member States. The asylum procedures Directive allows Member States to adopt a longer deadline to decide on asylum applications where there a ‘large number’ of applications, without even a notification requirement. Also, Member States alone decide on whether to derogate from the rules on border procedures in the event of a ‘large number’ of applications at the border or in a transit zone.

Under the Directive on reception conditions for asylum-seekers, Member States may adopt different rules where the normal accommodation to be provided is ‘temporarily exhausted’, with no control requirement. And under the Returns Directive, Member States can derogate from some safeguards on immigration detention if there are an ‘exceptionally large number’ of irregular migrants; but they need only inform the Commission of this decision.

Finally, an example from outside the field of immigration, free movement and social security proves that Member States are often given sole discretion to decide on derogations in other fields of EU law too. The working time Directive provides for four categories of derogations. The first three categories are entirely up to Member States’ discretion. The fourth category, which sets out transitional rules for doctors in training which have now expired, set out rules requiring only a Commission opinion before Member States extended the relevant transitional period.

Of course, secondary EU law is required to comply with EU primary law in the Treaties, and so the lack of EU control procedures over derogations would be invalid if it violated the Treaties. But as discussed in the first part, the Treaties set out no general rule on the EU political institutions’ control of Member States’ derogations from EU law. Indeed, in the particular areas of free movement and social security, they expressly leave the power to decide on such measures to Member States. This is, however, without prejudice to the possibility of judicial control (by the national courts and the CJEU) to determine whether most of these national decisions (except for the ‘emergency brake’ on social security decision-making) have been validly exercised.

Barnard & Peers: chapter 13

Photo credit: www.moroccoworldnews.com

Annex – Articles in Treaty and legislation referred to

Free movement exceptions: Articles 45(3), 52(1), 62 and 65(1) TFEU

Emergency wartime derogation: Article 348 TFEU

Higher national standards following internal market harmonisation: Article 114 TFEU

State aid authorisation: Article 108(2) TFEU

Tax rule restricting movement of capital to third countries: Article 65(4) TFEU

Social security and free movement of persons: Article 48 TFEU

Volumes of third-country nationals coming to work: Article 79(5) TFEU

Fisheries conservation ruling: Case 804/79 Commission v UK, referring to Article 102 of the 1972 Act of Accession (paras 17, 28 and 31 of the judgment)

Case 174/84 Bulk Oil: para 56

EU competences: Articles 3(1) and 4(1)(a) TFEU

EU citizens’ Directive (Directive 2004/38): Article 24

EU’s patients’ Directive (Directive 2011/24): Article 7(9) and (11)

Asylum procedures Directive (Directive 2013/32): Articles 31(3)(b) and 43(3)

Directive on reception conditions for asylum-seekers (Directive 2013/33): Article 18(9)(b)

Returns Directive (Directive 2008/115): Article 18

Working time Directive (Directive 2003/88): Article 17

The German Constitutional Court and the European Arrest Warrant: The latest twist in the judicial dialogue

Daniel Sarmiento, Professor of EU Law at the University Complutense of Madrid*

The German Constitutional Court (GCC) has fired again, and now in the always sensitive area of fundamental rights. In an Order published yesterday, the GCC has undertaken an “identity control” over the implementation of a European Arrest Warrant (EAW) issued by Italian authorities and intended to be executed in Germany. The person concerned, a US national convicted in Italy in absentia, claimed that his conviction had been ruled without any guarantees, and now, under Italian law, nothing can stop the enforcement of his conviction. Italian procedural law does not provide a remedy at this point.

The GCC has applied, for the first time, its “identity control” to a case fully covered by EU Law. Therefore, the review by the GCC of the challenged judgment, which implemented the Framework Decision and the German implementing act, entailed an indirect review of the Framework Decision itself. The GCC reminds the reader of its traditional case-law on “identity control” and comes to the conclusion that in this particular case it is perfectly possible to do it. In the end, it quashes the decision of the instance court but it states that the Framework Decision and the German implementing act are perfectly in line with the solution it comes to.

I completely agree.

The trial in absentia that took place in Italy was clearly in breach of Convention (ECHR) rights, because the accused had not been informed of the date of the hearing, he was not represented by a lawyer, etc… In other words, the trial was a mess. This contrasts with the facts in the case of Melloni, in which the CJEU ruled that the Spanish Constitutional Court could not apply the higher standards of its national constitutional law in order to block the execution of an EAW issued by Italy. On that case, Mr. Melloni had been sentenced in absentia but scrupulously following the minimal conditions required by the Convention. The case before the GCC is a good example of how not to handle a trial in absentia. Therefore the Framework Decision entitles Member States to refuse the enforcement of decisions enacted under such terms.

Therefore, what is the fuss? Why has the GCC made an “identity control” when the Framework Decision solves the case anyway in the same terms?

It seems as if the GCC is sending a message to Luxembourg: it is not willing to buy the Melloni case-law. Therefore, the Court of Justice’s approach in that case to Article 53 of the Charter, which imposes Charter levels of protection in cases totally determined by EU Law (i.e., with no discretion for Member States), is not going to be an easy ride. The GCC is clearly stating that it will undergo “identity control” in any case covered by EU Law, including in areas totally determined by European rules that lower the levels of protection enshrined under national law.

Therefore, it is a harmless judgment on the facts, but a very important one on the symbolic side. In fact, the decision is perfectly in line with the decision of the Spanish Constitutional Court in Melloni, in which the Spanish court decided to lower the domestic level of protection of the right to a fair trial, but not on the grounds of EU Law. The Spanish court highlighted that the judgment of the Court of Justice in Melloni was “a very useful reference”, but not a binding decision. In the end, the Spanish court followed the Luxembourg criteria, but on the sole grounds of the Spanish Constitution. Now the GCC is saying pretty much the same thing, but through the sophisticated means of “identity control”.

This is an unsurprising turn of events. Constitutional Courts have been protagonists of the fundamental rights narrative for more than half a century in Europe. In the case of Germany, Spain, Portugal or Italy, Constitutional Courts have been the guardians of human rights in States with a dubious past track-record in this matter. These are therefore powerful and relevant courts with an important tradition, and they are not willing to step back. European integration is side-lining them, but the events taking place in Europe (and everywhere in the world) are so serious that Constitutional courts feel a duty to keep acting as guardians. This attitude might be interpreted as a sign of nationalism, but it can also be the confirmation of the importance of the issues being now handled by the EU: data protection, the fight against terrorism, immigration, the euro and financial assistance of Member States, etc… Why would these courts decide to become irrelevant now, at a time in which the challenges ahead are as relevant or even more important than those they have faced in the past?

In my opinion, this should not be a cause of concern, but only as long as the Court of Justice handles the situation with care and intelligence. It did a good job in the OMT case (discussed here), but it is obvious that the area of fundamental rights is a thorny one that poses many challenges. Akerberg Fransson and Melloni were a brave but risky start, shortly followed by some cautious decisions. However, Opinion 2/13 and the inability of the Court of Justice to adjust to a future ECHR accession of the EU, including Strasbourg external control, is a damaging and clumsy move that has only made Constitutional courts frown. If they are subject to Strasbourg control, why can’t the Court of Justice accept it too? Many Constitutional Courts are perfectly entitled to think “what are they scared of in Luxembourg?”.

It will not be easy for the Court of Justice to come out of the situation created by Opinion 2/13. However, the Charter is still a very valuable instrument, a source of endless inspiration that could help the Court seduce national Constitutional Courts in the years to come. Also, the current events taking place in Poland are another good opportunity for the Court of Justice to prove how far it is willing to go in assisting national Constitutional courts that come under attack. The current situation is a difficult one, but the Court of Justice has the authority, prestige and background needed to face the challenge.

The GCC has fired once again, but it would be a very reductionist reaction to simply say that it is a mindless and nationalistic claim from Karlsruhe. On the contrary, this is yet another reminder for the Court of Justice of the importance of fundamental rights, and of the importance of its role as interpreter of the Charter. In other words, this is another opportunity for the Court of Justice to forget that phrase so frequently used by its judges in public lectures, according to which “we are not a fundamental rights court”. Whether they like it or not, they have become one. The longer they stubbornly resist this reality, the more painful the awakening will be.

*Reblogged from the ‘Despite our Differences’ blog

Barnard & Peers: chapter 9, chapter 25

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Can Member States seize asylum-seekers’ assets?

Kees Groenendijk (Professor Emeritus, Radboud University Nijmegen) and Steve Peers

In recent days, several EU and non-EU countries have been in the news for taking asylum-seekers' assets upon arrival. Is this compatible with EU law? We examine first of all national practice, then the legislative history of the relevant EU rules, then reach our conclusions.  

Denmark

In November 2015 the Danish government presented among a catalogue of 34 measures to discourage people from seeking asylum in Denmark, to introduce the possibility to confiscate cash, jewellery and other assets of asylum seekers in other to make them contribute in the costs of their reception. They proposal caused heated debate after a Minister suggested that wedding rings could be also confiscated. In January the Social-Democratic Party voiced that it would only support this proposal of the centre-right minority government, only assets above 1,340 euro could be confiscated. The new law is to be voted on 26 January.

Similar practices or rules are to be found in the national law of other Member States.

Switzerland, only few asylum seekers concerned

According to Dutch newspapers, Swiss legislation requires asylum seekers who enter the country with more than 1,000 Swiss francs have report and hand over the surplus to the Swiss authorities. The rule only covers money, not other valuables such as personal jewellery. Of the 45,000 asylum seekers coming to Switzerland in 2015, only 112 had to hand in a surplus, totalling around € 150,000 that year. Not really an impressive amount. Most asylum seekers, apparently, do not carry large amounts of money, once they arrive in Western Europe. Besides, under Swiss law beneficiaries of protection with income from employment, have to pay 10% of that income to contribute to reception costs during ten years.

Germany, an old practice?

The German legislation on reception of asylum seekers, the Asylbewerberleistungsgesetz, provides, already several decades that asylum seekers can be forced to contribute from their own assets and income to the cost of their reception. Asylum seekers have to declare their assets and income. The rules for applicant for public social assistance are applicable. From the assets only 200 euro and the goods necessary for exercising a profession or employment are exempted (§ 7(5) of the law). German national TV news reported on 21 January 2016 that in Bavaria asylum seekers were asked by the police to hand over their cash in excess of €750. In Baden-Wurttemberg the threshold is €350. The federal law leaves room for difference in application between the Lander. A spokesman of the Baden-Wurttemberg minister of integration stated that although cash was taken from refugees in individual cases following police spot-checks, searches are not carried out on every refugee. He was quoted as saying "In the context of a general police check it was established that individual refugees had cash with them" and "Refugees are not being systematically searched for cash or valuables".

Netherlands, only contributions from income not from assets

The Junior Minister for Immigration recently told the press that that he was not going to follow the Danish and German example and force asylum seekers to hand over small amounts of cash and jewellery. His spokesman explained this is not on the agenda right now, since we do not expect that it will reduce the influx.” (Volkrant 23 January 2016) Already for decades asylum seekers in the Netherlands if lawfully employed (only possible after six months and until an asylum status is acquired for 24 weeks per year only) have to pay the surplus above 185 euro of his monthly income as a contribution in reception costs.

Compatible with EU law?

Are such rules and practices on seizure of assets in order to contribute in reception costs compatible with EU law, and especially with the Reception Conditions Directive 2013/33? We do not deal here with the question whether such confiscation of valuables and jewellery is compatible with Article 1 of the First Protocol and Article 8 ECHR.

The relevant provisions are to be found in Article 17(3) and (4) of the 2013 recast Reception Conditions Directive, reading:

“3.   Member States may make the provision of all or some of the material reception conditions and health care subject to the condition that applicants do not have sufficient means to have a standard of living adequate for their health and to enable their subsistence.

4.   Member States may require applicants to cover or contribute to the cost of the material reception conditions and of the health care provided for in this Directive, pursuant to the provision of paragraph 3, if the applicants have sufficient resources, for example if they have been working for a reasonable period of time.

If it transpires that an applicant had sufficient means to cover material reception conditions and health care at the time when those basic needs were being covered, Member States may ask the applicant for a refund.”

Identical provisions were already present in Article 13(3) and (4) of the original Reception Conditions Directive 2003/9. They returned unchanged in the 2013 recast of the Directive. In order to understand those provisions it may be useful to have a short look at their legislative history. The various drafts are set out in more detail in the Annex, but we will summarise them here.

Legislative history of EU rules on financial contributions by asylum seekers

The Commission in its proposal for the original 2003 Directive (COM(2001)181) inserted an Article 19 on financial contributions. Member States could require applicants who can afford to do so to contribute to the cost of their material reception conditions. The relevant decisions should be taken individually, objectively and impartially and reasons shall be given. An effective judicial remedy against such decisions should be available, making explicit reference to Article 47 EU Charter.

During the first negotiations on this Article reaction eight Member States made proposals for amendments. Six Member States proposed to refer to “the general principle of the real need of the applicant, which would lead to entitlement to material benefits” (document 11320/01, p. 33). Germany proposed that “some of the applicant's income should be protected in all cases”. That proposal only covered the asylum seeker’s income. But it implied that all the income above a certain threshold could be seized by a Member State. The Netherlands made a similar proposal linking the asylum seeker’s contribution to his income: “if the applicant has a certain income, a contribution may be asked of him to cover some or all of the costs”. Both proposals intended to regulate a possibly contribution in reception costs, but did not include the asylum seekers’ assets as an object of seizure.

In January 2002 the text of Article 19 was consolidated with two other Articles in a new Article 18, entitled ‘Financial means test’ (document 5300/02). The Dutch proposal, concerning contribution out of income from employment was included. The German proposal, implying that a Member State could seize all income above a certain fixed threshold, did not find its way in this and later versions of provisions on financial contributions by asylum seekers. During the negotiations in February 2002 this Article was considerably shortened (a.o. replacing the general means test by the condition that the applicants do not have sufficient means to cover their basic needs, and deleting the reference to income from employment) and it was renumbered Article 17 (document 6253/02). Only three Member States made suggestions: Portugal and Greece pleaded for more reduction of the reception conditions, once an asylum seeker or his family member had been allowed access to the labour market. Germany proposed to integrate Article 17 in the general Article on material reception conditions.

Early March 2002, the Asylum Working Party examined the amended proposal based on drafting suggestions from the Spanish Presidency (document 6906/02). Parts of the former Article 17 were now included in Article 13, apparently following German suggestion.

In April 2002 on suggestion of Germany the words “and health care” were added in par. 3 of Article 13. Moreover, the words “for example if they have been working for a reasonable period of time” were added in par. 4, re-introducing an explicit link with participation in the labour market again (document 7802/02). This version of Article 13 of the amended proposal was accepted by Coreper and by the Council in 2002 and became part of the Directive adopted with unanimity on 27 January 2003.

In addition, the 2013 recast Directive now states that Member States can refuse or withdraw benefits if asylum-seekers have ‘concealed financial resources’ (Article 20 of the 2013 Directive). The CJEU, in its CIMADE and GISTI judgment, has ruled that Article 20 sets out an exhaustive list of grounds for reducing or withdrawing benefits.

Analysis

If this legislative history is combined with the general principles of EU law and the EU Charter, we conclude:

(1) The issue of financial contributions by asylum seekers in material reception costs from their own means was been discussed repeatedly during the negotiations on the Directive.

(2) This issue was discussed repeatedly also in relation to the access of asylum seekers to the labour market in the Member State and the income derived from such employment.

(3) The Directive allows Member States to impose a means test for access to material reception conditions, but this does not entail confiscation of assets. The test is not whether the asylum seeker has more than a certain fixed amount of money or assets, but whether the asylum seeker does have sufficient means to have a standard of living adequate for his health and to enable his subsistence.

(4) Since (a) the issue of financial contributions by asylum seekers in material reception costs is covered by the directive and (b) the Directive sets out minimum standards in order to avoid second movements between Member State (recitals 7 and 8), Member States are not allowed to apply less favourable rules only more favourable rules (see recital 15); the Court of Justice repeatedly held that Member States cannot introduce other conditions than those provided for in the EU Directive or Regulation, see the judgments in Ben Alaya, Koushkaki and Air Baltic. Also, by analogy with the CIMADE and GISTI ruling, the grounds in the Directive to refuse or regulate access to benefits are surely exhaustive.

(5) Article 13(3) allows Member States to make the grant of material reception conditions and health care subject to the condition that applicants do not have sufficient means to have a standard of living adequate for their health and to enable their subsistence. It follows that such decision to exclude an asylum seeker from material reception conditions can only be made after the Member State first has established that applicants have sufficient means to have a standard of living adequate for their health and to enable their subsistence in the Member State. In accordance with the general principle of proportionality in EU law, it is questionable whether a Member State could refuse any access to the benefits system, just because an asylum-seeker has a small amount of cash or valuables. Access should only be refused where the applicant either has an ongoing alternative source of funds, or the asylum-seeker has so much wealth that he or she could live off it for a considerable period of time.

(6) Article 13(4) allows Member States to require applicants to contribute to the cost of the material reception conditions and of the health care, when the applicants have sufficient resources. The conditions of paragraph 3 explicitly apply here as well. The Commission with regard to Article 19 of its proposal rightly stated: “Decisions on applicants’ contribution should be taken individually, objectively and impartially and reasons must be given if they are negative in order to make possible their review as accurate as possible.”

While, in the final version of the Directive this clause applies to the reduction or withdrawal of benefits, not the obligation to contribute toward costs, the general principles of EU law still require that national administrative decisions linked to EU law must be fair (see the CJEU’s YS and M and S ruling on asylum procedures, discussed here; and the Mukarubega and Boudjliba judgments on the return of irregular migrants, discussed here). This means that any decision on asylum-seekers’ contributions has to be an individual decision giving reasons, taking into consideration the individual situation of each asylum seeker.

Such decisions must also comply with other general principles of Union law, in particular the principle of proportionality, which means that any confiscation of property must be necessary to achieve a genuine government end. It is hard to see how it is necessary to confiscate property when a less severe measure (delaying or curtailing benefit payments by an equivalent amount, in accordance with the rules on a means test) could achieve the same objective. Again, the principle suggests that asylum-seekers should only be required to contribute where applicants either have an ongoing alternative source of funds, or have so much wealth that they could live off it for a considerable period of time.

It must also be possible to challenge any decision made by a national authority on confiscation, in accordance with Article 47 (the right to an effective remedy) of the EU Charter of Fundamental Rights.

(7) In conclusion: a national rule allowing authorities to confiscate all means of an asylum seeker above a fixed amount, irrespective of the individual circumstance on the grounds mentioned in point 4 and 6 above is not compatible with Union law.

(8) Of course, Denmark and Switzerland are not bound by the Directive, Denmark because of its opt-out and Switzerland because it is not a Member State. Ireland opted out as well. But all other Members State are bound by Directive 2013/33 and the UK is opted in and is bound by the original Reception Conditions Directive 2003/9.

*The paragraph on Germany was amended on 27th January 2016 to add further detail.
Barnard & Peers: chapter 26

JHA4: chapter I:5

Photo: Danish police officer and asylum-seeker

Photo credit: www.channelnewsasia.com

Annex

Legislative history of Article 13(3) and (4) of Directive 2003/9 = Article 17(3) and (4) of Directive 2013/33 on financial contributions by asylum seekers in reception costs

In the Commission’s proposal for the original 2003 Directive COM(2001)181 there was a separate Article 19 reading:

Article 19

Financial contribution

1. Member States may require applicants who can afford to do so to contribute to the cost of

their material reception conditions or to cover it. Decisions to provide material reception

conditions not free of charge shall be taken individually, objectively and impartially and

reasons shall be given.

2. Member States shall ensure that applicants have the right to bring proceedings before a court against the decisions referred to in paragraph 1 and that they have access to legal assistance.

The Explanatory Memorandum to this Article 19 read:

“This Article concerns the financial contribution applicants for asylum may be asked to

provide if they are provided with material reception conditions.

(1) This paragraph allows Member States to require applicants who can afford it to contribute

to the cost of their material reception conditions. The purpose is to meet the Council’s

concern regarding the requirement of “inadequate” resources of the applicants for

asylum. In any case Member States should ensure that applicants for asylum have the

possibility of being housed as even applicants with sufficient financial means might find

it impossible to find suitable housing. Decisions on applicants’ contribution should be

taken individually, objectively and impartially and reasons must be given if they are

negative in order to make possible their review as accurate as possible.

(2) In conformity with the Charter of fundamental rights (Article 47) and in line with the

case law of the Court of Justice, this paragraph ensures that the decisions taken according

to paragraph 1 can be reviewed by a judicial body (including an administrative judicial

body such as the Conseil d’Etat in France) at least in the last instance.”

The first reaction of Member States on this Article was in document 11320/01, p. 33:

“D/E/NL/P/S and UK: reference should be made to the general principle of the real

need of the applicant, which would lead to entitlement to material benefits.

D: some of the applicant's income should be protected in all cases.

NL: stipulate that if the applicant has a certain income, a contribution may be asked of him

to cover some or all of the costs.

D and UK: establish a general principle laying down that Member States may decide

whether or not the applicant requires material benefits.

L and A: make provision for the case in which an applicant is invited to stay in the territory

of a Member State by a national who, if applicable, has served as guarantor for the purpose

of obtaining a tourist visa. In this case, it should be possible to call on the national to

contribute to the costs.

A: reservation on the second sentence in that it creates an obligation to notify these

decisions in writing.

3 A and S: reservation on the financial aspects of legal assistance.

D and UK: a general provision on forms of appeal at the beginning of the Directive should

be sufficient.

In January 2002 the text of Article 19 was consolidated in a new Article 18, consolidating several provisions of the proposal (document 5300/02):

“Article 18 (consolidating Articles 14 bis, 15(4) and 19)

Financial means test

1. Member States may make the grant of all or some of the material reception conditions,

as well as the requirement that applicants and their accompanying family members

cover or contribute to the cost thereof, subject to a financial means test of applicants and

their accompanying family members in accordance with the provisions of this Article.

2. Member States may also reduce or withdraw material reception conditions within a

reasonable period after applicants or their accompanying family members commence an

employment activity in accordance with Article 13, applying the test established in

paragraph 1.

3. Applicants and their accompanying family members may be subject to one or more of

the measures provided for in paragraphs 1 and 2 when it is confirmed that they have

sufficient means.

4. Decisions under this Article shall be taken individually, objectively and impartially and

reasons shall be given.”

In February 2002 this Article was considerably shortened (a.o. deleting the means test and the reference to income from employment) and renumbered as Article 17, reading together with the footnote by Member States and the Commission (document 6253/02):

“Article 17 (formerly 18)1

Financial means criteria

1. Member States may make the grant of all or some of the material reception conditions subject to the condition that applicants do not have sufficient means to cover their basic needs.

2. If it transpires that an applicant had sufficient means to cover these basic needs at the time

when material reception conditions were being provided, then Member States may ask these

to refund.2

3. Decisions under this Article shall be taken individually, objectively and impartially and

reasons shall be given. 3

1 D : this provision should be placed at the end of Article 15.

2 P, supported by EL, suggested adding the following :

"3. Member States may also reduce or withdraw material reception conditions within a

reasonable period after applicants and their accompanying family members have been

allowed access to the labour market in accordance with Article 13, applying the test

established in paragraph 1.

4. In the cases referred to in paragraph 3, if they are not financially independent, Member

States shall grant them the food allowance mentioned in Article 8 and access to basic

social care."

(present paragraph 3 would become 5).

3 Cion : reinsert a paragraph which was included in 12839/01 ASILE 49 (former

Article 14A(6)) :

"Member States shall ensure that before the decisions referred to in paragraph 2 are notified to

the applicants for asylum [and their accompanying family members] the other Articles of

Chapter III of this Directive are applied".

At its meeting on 5 and 6 March 2002, the Asylum Working Party examined the amended proposal based on drafting suggestions from the Spanish Presidency, document 6906/02. Parts of the former Article 17 were now included in Article 13, apparently following the suggestion made before by Germany with regard to that former Article 17.

Article 13

General rules1

1. Member States shall ensure that material reception conditions are available to applicants when they make their application.

2. Member States shall make provisions on material reception conditions to ensure a standard of living adequate for the health and the well-being of applicants.

Member States shall ensure that standard of living is met in the specific situation of persons

who have special needs, in accordance with Article 17, as well as in relation to the situation of

persons who are in detention.

3. Member States may make the grant of all or some of the material reception conditions subject to the condition that applicants do not have sufficient means to have a standard of living adequate for their health and well-being.2

4. Member States may require applicants to cover or contribute to the cost of the material

reception conditions and of the health care provided for in this Directive, pursuant to the

provision of paragraph 3, when the applicants have sufficient resources.

5. Material reception conditions may be provided in kind, or in the form of financial allowances or vouchers or in a combination of these provisions.

Where Member States provide material reception conditions in the form of allowances or

vouchers, their amount shall be set in accordance with the principles set for in this Article.

1 A : a general rule providing for exceptions to be applied by Member States in extraordinary

situations should be introduced.

2 B, D, F and P : the term "well-being" is s too vague and should be defined.

NL, S, UK : say "to enable their subsistence" instead of "to have a standard of living adequate

for their health and well-being".

In April 2002 on suggestion of Germany the words “and health care” were added in par. 3. Besides the words “for example if they have been working for a reasonable period of time” were added in par. 4, introducing an explicit link with participation in the labour market again (document 7802/02).

This version of Article 13 of the amended proposal was accepted by Coreper and by the Council. It became part of the Directive adopted on 27 January 2003

The EU Humanitarian Admission Scheme for Syrian Refugees in Turkey

Laura Robbins-Wright

PhD Candidate in Government, London School of Economics and Political Science

On 15 December 2015, the European Commission published a recommendation concerning a humanitarian admission scheme for Syrian refugees in Turkey. The recommendation follows a June 2015 decision to implement an intra-EU relocation programme and a scheme of resettlement from third countries. The document also builds on an action plan released in October 2015 and a more recent decision to provide €3 billion for a Refugee Facility that will “coordinate and streamline” the provision of humanitarian assistance to Syrian refugees in Turkey. The recommendation calls for a “rapid, efficient and voluntary scheme” for the “orderly, safe and dignified arrival” of these individuals.

Three aspects of the recommendation stand out and merit further analysis. First, the Commission noted the importance of demonstrating solidarity with Turkey since the country hosts more than 2.2 million Syrian refugees at present. However, though Turkey hosts the largest absolute number of Syrian refugees, Jordan and Lebanon bear the greatest (relative) responsibility for these refugees. Indeed, whereas Syrian refugees comprise approximately 3 per cent of the total population of Turkey, they make up roughly 10 percent of the population of Jordan and more than 20 per cent of the population of Lebanon. Nevertheless, the recommendation to offer humanitarian admission to refugees from Turkey is perhaps to be expected given that the EU shares a border with Turkey and thousands of refugees have attempted the perilous journey across the Aegean into Greece. Furthermore, Turkey is a candidate for accession to the EU, while Jordan and Lebanon are simply considered to be part of the broader ‘European neighbourhood.’ Though negotiations on Turkish accession opened in 2005 and have proceeded slowly since then, the European Union and Turkey may be in the process of forging a new and more cooperative relationship in migration that could enhance refugee protection and “re-energize” these complex discussions.

Second, the recommendation also emphasises the voluntary nature of participation in the proposed scheme. The Commission indicated that all Member States, plus members of Schengen, are welcome to join the humanitarian admission programme. This approach is consistent with some of the previous intra-EU relocation efforts – namely EUREMA I and II. The decision to offer Member States a choice in participating in this programme is not especially surprising given the challenges the Commission faced in securing the agreement of some Member States on national quotas for the intra-EU relocation programme proposed last summer. In that context, recent media reports indicate that EU Migration Commissioner Dimitri Avromopoulos has acknowledged that “relocation does not work.” This statement is supported through data released on 20 January, 2015 which demonstrate that Member States pledged just over 4,200 places (as opposed to the Commission’s target of 160,000 places) and only 331 individuals have been relocated from Greece and Italy to date.

From a normative perspective, the desire to demonstrate international solidarity aligns with the principle of international cooperation outlined in the preamble to the 1951 Convention. However, this voluntary approach – combined with a clear lack of enthusiasm for the most recent relocation scheme – raises the age-old question of whether the European Union can truly achieve a cohesive approach to humanitarian protection.

Finally, the recommendation is notable for its strategic approach, as embodied in the desire to achieve a “sustainable reduction” in irregular migration from Turkey to the European Union. Since 2003, the United Nations High Commissioner for Refugees (UNHCR) has attempted to reframe resettlement as a strategic instrument for protection that emphasises the direct and indirect benefits of resettlement for refugees, host countries, receiving countries, and the international refugee protection regime. However, the organisation also recognised the importance of ensuring that such programmes do not create a “pull factor” for further migration. The UNHCR suggested that this can be achieved by establishing “clear and transparent” selection criteria. In this case, the Commission has proposed that only those who registered their presence with Turkish officials prior to 29 November, 2015 will be eligible for humanitarian admission. The Commission also recommends that participating countries assess why the individual fled Syria and examine their vulnerability and potential family ties within the European Union, among other criteria.

Though managing this humanitarian admission programme in a strategic manner could encourage Turkey to continue welcoming asylum seekers and also enable some Syrians to benefit from international protection, there are questions as to how Turkey will seek to manage ongoing arrivals. Furthermore, the UNHCR has noted that the decision to offer a durable solution to certain refugees can potentially create “bitterness and resentment” among ineligible groups, particularly in cases where these groups do not have access to effective protection in the host country. This raises questions about how the prospective decision to offer humanitarian protection to Syrian refugees will be perceived by the tens of thousands of Afghan, Iranian, and Iraqi refugees who have long resided in Turkey and may be obliged to wait up to 10 years for a decision on their respective applications for protection.

Though the recommendation offers clear operational guidelines, it does not indicate how many refugees can or should be offered protection through this proposed scheme. Instead, the Commission notes that the number of individuals offered admission should be determined according to UNHCR processing capacity, the number of displaced persons in Turkey, and the impact of efforts to reduce irregular migration to Turkey (a measure that has attracted criticism from the European Council on Refugees and Exiles). Furthermore, the Commission has recommended that participating Member States admit those granted subsidiary protection in an “equitable” manner. However, given the aforementioned challenges the Commission faced in securing Member State agreement on quotas for the intra-EU relocation programme, this could prove more difficult than anticipated. Overall, it remains unclear whether this humanitarian admission programme – if adopted – will have a meaningful impact on the substantial number of Syrian refugees residing in Turkey at present.

Barnard & Peers: chapter 26

JHA4: chapter I:5

Photo credit: www.unhcr.org