Vasiliki Apatzidou, legal
practitioner in the field of EU Asylum Law and PhD Student, Queen Mary
University of London.
Photo credit: Rebecca
Harms, via wikicommons
The current
instruments of the Common
European Asylum System (CEAS), which include the recast Reception
Conditions Directive, are applicable since 2013, meaning for nearly a decade.
However, already in 2015, the high number of arrivals of asylum-seekers in the
European Union (EU) exposed a series of deficiencies,
divergencies and gaps in the EU legislation on asylum matters. The
harmonization objective lost much of its relevance in the context of the
response to the refugee ‘crisis’.[i]
The paradox is that the so-called ‘crisis’ happened just two years after the
completion of the reform of the CEAS in the summer of 2013. Therefore, the
Commission presented in 2015 a new European
Agenda on Migration that included both short-term
measures and proposals for the long-term.
In the long-term, the European Commission
proposed in May and July 2016 a third package
of legislation with the aim of strengthening protection for asylum-seekers
and imposing greater uniformity in rules and procedures in different Member
States. The Commission highlighted in 2016 that the prevention of ‘asylum
shopping’ and ‘secondary movements’ was among the top priorities that it aimed
to achieve through the reform of the CEAS. In 2016, the Commission presented
the second package to reform the CEAS and one of these proposals was the 2016
proposal for a recast
Reception Conditions Directive (RCD).[ii]
The negotiations started in 2016, and a
political agreement between the Council and the European Parliament was
reached in 2018. Further attempts at the technical level were made during the Austrian
Presidency, but the proposal, as of today, has not been adopted. Actually,
none of the 2016 proposed instruments is adopted, to date (besides the EU Asylum Agency), and the negotiations
were stalled.
Thus, the Commission in 2020 presented the new
Pact on Migration and Asylum in order to boost the negotiations in the
Council and propose a ‘fresh start’ on migration. As the recast RCD was one of
the instruments where a provisional agreement was reached, the Commission did
not amend at all this text through the proposed 2020 Pact on Migration and Asylum.
As the Council is currently getting prepared to open again the discussions with
the European Parliament on the recast RCD, this blogpost aims to examine the
most important amendments of the recast RCD mainly regarding the proposed
measures that aim to prevent ‘secondary movements’ and ‘asylum shopping’ which
is at the epicenter of the proposed legislation.
To achieve this objective, on the one hand,
measures that improve the dignity and integration prospects for asylum-seekers
are proposed to ensure that a dignified standard of living is provided in all
Member States, and secondly new measures to constrain autonomy and impose
sanctions to asylum-seekers are proposed to ensure that the asylum applications
will be examined in the ‘first country of asylum’ and ‘asylum shopping’ will be
prevented. Specifically, in recital 13 of the recast RCD, it is explicitly
mentioned that ‘applicants do not have the right to choose the Member State of
application. An applicant must apply for international protection in accordance
with the Dublin
Regulation’. It is worth clarifying here that the Commission proposed in
2020 to replace the Dublin III Regulation with an Asylum
and Migration Management Regulation, but as this has not yet been agreed, I
will refer to the Dublin III Regulation for the scope of this blogpost.
Measures to enhance Integration Prospects
It is apparent
in the provisional agreement that the aim of the proposed Directive is to
enhance integration measures for asylum-seekers and ensure that there are inclusion
prospects for them wherever they are required to apply for asylum. In this way,
the Commission aims to ensure dignified standards and equal integration
prospects in all Member States to ensure the prevention of ‘asylum shopping’
and ‘secondary movements’. For this reason, asylum-seekers will be allowed to
work 6 months after requesting asylum, instead of the current 9-month framework
(Art. 15). Moreover, it is required to enjoy equal treatment with the nationals
as regards the terms of employment and other conditions (art.15 para.3). Asylum-seekers
will also have access to vocational training and language courses from day one
(art. 15a). Moreover, those applying for
international protection will be entitled to primary and secondary health care,
including mental as well as sexual and reproductive health care (art.16). In
addition, children should enter the school system no later than 2 months after
arrival (Art.14), instead of the current framework that foresees 3 months. All
the above-mentioned measures aim to enhance the integration prospects of
asylum-seekers to ensure that they will not choose to illegally move to other
countries in order to find job or access education. These measures are overall
assessed as beneficial for those seeking international protection. However,
integration is also dependent on actual employment opportunities, inclusion
prospects and the economic situation in the responsible Member State, something
that may also be influenced by large-scale arrivals of third-country nationals
often witnessed in the EU external border countries.
Sanctions for being present on the territory of a
‘non-responsible’ Member State
The most striking
example that proves that the main aim of the recast RCD is the prevention of
‘asylum shopping’ and ‘secondary movements’ can be found in the proposed
article 17a which explicitly states that where an applicant is present in
another Member State from the one that he or she is required to be present, the
applicant should not be entitled to material reception conditions, access to
labour marker, language courses and vocational training from the moment a
transfer decision has been notified to this person. Thus, the reception
conditions may actually be reduced or withdrawn with the notice of the transfer
decision even if the transfer in reality is taking place later, in some cases even
months after the notification of the decision. The only guarantee here is that
the withdrawal of the reception conditions should be without prejudice to the
need to ensure ‘a
dignified standard of living’ including access to necessary health care
something which has been reaffirmed from the European
Court of Justice. However, how this can be achieved in practice remains
controversial.
Furthermore, the
possibility of reducing or withdrawing the material reception conditions in
case the applicant is required to be present in a specific Member State
according to the Dublin Regulation, can be found in the new paragraph 1 of
article 19 that concerns the reduction or withdrawal of material reception
conditions. Thus, once again it is stated that if the asylum-seeker has
‘illegally’ left the ‘first country of asylum’ and moved to another Member
State, she or he may be sanctioned with even the full withdrawal of reception
conditions, on the basis of the above-mentioned provision. It becomes evident
that the applicant of international protection will be subject to the full benefits
and guarantees envisaged in the recast RCD only when she or he is present on
the territory of the Member State that the Dublin Regulation defines. In this
way, the Commission hopes to discourage ‘secondary movements’ to other Member
States as asylum-seekers can enjoy the full sets of rights provided in the
recast RCD when they are in the ‘responsible’ Member State in accordance with
the Dublin Regulation.
Restrictions on the Freedom of Movement: Prevention of
‘absconding’
Except of the
proposed sanctions for the applicants that are required to be present in other
Member States on the basis of the Dublin Regulation, the Commission proposes to
allow states to have the possibility to decide that an applicant is only
allowed to reside in a specific place that is adapted for housing applicants,
where the is a risk of absconding, in particular when it concerns a) applicants
who are required to be present in another Member State and b) applicants who
have been transferred to the Member State where they are required to be present
in accordance with the Dublin Regulation after having absconded to another
Member State (Art.7). Thus, we notice that a restriction of freedom of movement
is allowed to prevent ‘absconding’ and subsequently preventing asylum-seekers
from illegally moving to another Member State, even in cases where there is a
‘risk’ of absconding. To add to this, in the definitions envisaged in the
proposed Directive, the ‘absconding’ and ‘risk of absconding’ are defined for
the first time in the asylum acquis (art.2 (10) and (11)) as until now the ‘risk
of absconding’ was defined in the Return
Directive. Not only restriction of movement, but even detention may be
allowed in accordance with the Dublin Regulation (art.8g).
It is worth
mentioning here that the proposal does not only provide for punishments for
applicants who are subject to a Dublin transfer, but in the recast RDC, we
witness that there are different kinds of residence restrictions that are
regulated (see new proposed articles 6a and 6b), which is a novelty in
comparison to the current Directive,
but the analysis of these restrictions fall outside the scope of this blogpost and have
been extensively examined here.
Conclusion
Although in the
provisional agreement for a recast RCD, the guarantees are enhanced, and even a
‘dignified living’ shall be ensured in every case, even when the asylum
applicant is present in the territory of a ‘non-responsible’ Member State, the
possibility of reducing material reception conditions and integration prospects
to prevent ‘secondary movements’ should not be underestimated. In the EU asylum
policy debate, it is well known that external border countries such as Greece,
Italy and Spain insist on more solidarity, mentioning that they cannot shoulder
the burden without adequate support, while northern European countries such as
Germany or the Netherlands insist on enhancing measures to prevent secondary
movements. This was also apparent in the negotiations for the proposed
Reception Conditions Directive. However, now that the 2020 asylum and migration
instruments are under negotiations, it is important to realise that there
should not be a dichotomy
between ‘less secondary movements’ or ‘more solidarity’. The discussions over
less secondary movements should take place in conjunction with discussions over
more solidarity. In the context of enhanced solidarity, the negotiations over
the recast Reception Conditions Directive should take place, if the Council
decides to open again the consultations, before finally adopting the Directive
which contains overall positive amendments that enhance integration prospects, safeguard
a dignified standard of living and increase procedural guarantees for
applicants with special reception needs.
Endnotes
[i] Giulia
Vicini, ‘The EU Refugee Crisis and the ‘Third-Phase’ Asylum Legislation: The
End of the Harmisation Approach or Its Revival’ in Valsamis Mitsilegas, Violeta
Moreno-Lax and Niovi Vavoula (eds.) Securitising
Asylum Flows: Deflection, Criminalisation and Challenges for Human Rights
(Brill 2020)
[ii] Jens
Vedsted-Hansen, ‘Reception Conditions as Human Rights: Pan-European Standard or
Systemic Deficiencies’ in Vincent Chetail, Philippe De Bruycker and Fransesco
Maiani (Eds.) Reforming the Common
European Asylum System: The New European Refugee Law (Brill Nijhoff 2016).
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