Monday 1 January 2024

The New EU Asylum Laws, part 2: the Reception Conditions Directive




Professor Steve Peers, Royal Holloway University of London

Photo credit: Rebecca Harms, via Wikimedia Commons

*sentences with an asterisk have been corrected or updated since the original publication of this post. Most recent update March 21 2024. 

Just before Christmas, the European Parliament and the Council (the EU body consisting of Member States’ ministers) reached a deal on five key pieces of EU asylum legislation, concerning asylum procedures, the ‘Dublin’ system on responsibility for asylum applications, the ‘Eurodac’ database supporting the Dublin system, screening of migrants/asylum seekers, and derogations in the event of crises. I’ll be looking at these agreements for new legislation on this blog (see the agreed texts here), unless the deal somehow unravels.* But for now this series looks at the planned new legal framework for asylum in the EU by looking at the first three texts that were made available: agreements on revised laws on qualification of refugees and people with subsidiary protection, reception conditions for asylum-seekers, and resettlement of refugees from outside the EU - plus the revised law on Eurodac, the EU asylum database.* These laws, agreed earlier between the European Parliament and the Council, but not yet formally adopted, are intended to be part of a ‘package’ of new or revised EU asylum laws, along with the recently agreed measures.

This is the second blog post in the series, on the planned new reception conditions Directive. For the first blog post, on the planned new qualification Regulation, see here. Part 3 concerns the resettlement Regulation, and part 4 concerns Eurodac.* There’s also an earlier analysis of the revised reception conditions Directive on this blog, by Vasiliki Apatzidou.

As noted in the first post in this series, all of the measures in the asylum package could in principle be amended or blocked before they are adopted, except for the Regulation revising the powers of the EU asylum agency, which was separated from the package and adopted already in 2021. I will update this blog post as necessary in light of developments. (Some of the description of the current Directive and its case law in this blog post is adapted from my asylum law chapter in the latest edition of EU Justice and Home Affairs Law).

The reception conditions Directive: background

There have been two previous ‘phases’ in development of the Common European Asylum System: a first phase of laws mainly adopted between 2003 and 2005, and a second phase of laws mainly adopted between 2011 and 2013. The 2024 package will, if adopted, in effect be a third phase, although for some reason the EU avoids calling it that.

One of the more controversial issues in the asylum debate is how asylum-seekers are treated before a decision is made on their asylum application, as regards issues like benefits, access to employment, housing and detention. In each phase of EU asylum law, the EU has addressed this issue by means of a law known as the reception conditions Directive. The first phase reception conditions Directive was adopted in 2003; the second phase Directive replaced it in 2013. The third phase, if finally adopted in 2024, will include a new version of the Directive.

There is CJEU case law on both the first phase Directive and the second phase Directive. It might be argued that the case law is still relevant to the new Directive, unless the relevant text has been amended.

The UK opted in to the first phase Directive, but not the second phase Directive; conversely Ireland opted out of the first phase Directive, but into the second phase Directive. Neither opted into the proposal for the 2024 Directive. Of course, the UK is no longer bound by EU law, but Ireland is still bound by the second phase Directive. Denmark opted out of both.

Of course, none of the measures in the package can be fully understood without the context of all the others – which I will be discussing over the course of this series of blog posts. For instance, it is possible that the effect of the other measures in the package will be to reduce the numbers of people who would otherwise apply for refugee or subsidiary protection status in the EU, or whose applications will be considered on the merits (the asylum procedures law provides that some applications can or must be considered inadmissible). Any reduction in the numbers applying for asylum will reduce the numbers who are covered by the Directive; any increase in the number of applications found inadmissible will in principle curtail the length of time that asylum seekers are covered by it – only ‘in principle’, because the Directive will still apply in the event of an appeal, if the asylum seeker is still on the territory. Furthermore, some of the other measures in the package include derogations from the Directive; we can only fully assess the scope and impact of those derogations after those texts are made public.

Reception conditions for asylum seekers should more broadly be situated in the context of the asylum system as a whole. While benefits etc for asylum seekers are provided under the reception conditions Directive, the process of dealing with their applications for asylum as such is subject to the rules in the EU law on asylum procedures, while the substance of the claims (if they are admissible) is considered on the basis of the EU law on qualifications (on which, see part 1 of this series). As we shall see, the Dublin rules – ie which Member State is responsible for considering their application – is relevant to reception conditions too. If the application is successful, the parts of the qualification law rules dealing with benefits etc for refugees and people with subsidiary protection then apply (again, see part 1 of this series).

If the application fails at first instance, the asylum seeker can appeal – an issue subject to the procedures law, although as noted already, the reception conditions Directive applies during the appeal, if the asylum seeker is allowed to stay on the territory. Whether they are allowed to stay during the appeal is an issue dealt with under the procedures law (spoiler: in principle appeals have suspensive effect, although there are wide exceptions to that rule). If an appeal is successful (and quite a few are), the qualification rules apply. But if an appeal fails, then in principle the failed asylum seeker must be expelled on the basis of the rules in the Returns Directive. However, the Returns Directive leaves Member States with discretion to allow irregular migrants to stay; and the case law on that Directive requires Member States to let them stay if they would be expelled to an unsafe country. Also, EU asylum law, as noted in part 1 of this series, leaves Member States with discretion to grant a form of national protection to people who do not qualify for refugee or subsidiary protection status. People with such national status will largely fall outside the scope of any EU law, although the equal treatment provisions in the recently agreed amendment of the EU single permit Directive (discussed here) will apply to them, if they are allowed to work.

The legislative process leading to the agreed text of the revised reception conditions Directive started with the Commission proposal in 2016, as a response to the perceived refugee crisis. EU governments (the Council) and the European Parliament then adopted their negotiating positions, and jointly agreed a text in principle. Member States were reluctant to accept that text, but then agreed to it eventually in 2022. But this blog post will compare the 2024 Directive only to the current Directive, leaving aside the politics of the negotiations.

Basic issues

The first key issue is the type of law used, which is linked with the degree of harmonisation which the EU seeks in this field. Like the first and second phase laws, the 2024 reception conditions law will be a Directive, which means that Member States will still be bound to achieve the outcome required but have a choice of form and method. But since the qualification and procedures laws will be turned into Regulations (binding in and of themselves, without national transposition), the 2024 law will be the only Directive applicable in the field of asylum law.

As for the level of harmonisation, the 2024 reception conditions Directive will still set a form of minimum standards: Member States can have higher standards, as long as those standards are compatible with the Directive. So there will still be both a floor and a ceiling. Again, the reception conditions Directive will then become unique in the field of asylum law, as the equivalent provisions in the laws on qualifications and procedures will be dropped, in favour of full harmonisation in principle – although note that some provisions in the qualification and procedures Regulations will still only be options for Member States. Exactly what the ceiling means in terms of reception conditions may be open to debate, because there’s no CJEU case law on the issue (for the case law on the ceiling applicable to the outgoing qualification Directive, see part 1; there’s also case law on the equivalent provision of the returns Directive, which is not technically an asylum measure)

The 2024 Directive provides that Member States will have to implement it two years after its adoption - so likely by spring 2026.*

Turning to the details of the Directive, there are nine main elements to the law: its scope, general provisions, detention, education, employment, benefits, reduction or withdrawal of benefits, special cases, and appeals and final provisions. This blog post mostly does not discuss the preamble, but keep in mind that the preamble adds some important detail to many of the points in the main text analysed here.

Scope

As with the second phase Directive, the 2024 Directive will apply to applicants both for refugee and subsidiary protection status, although Member States can choose to apply it to applicants for other types of status. (The first phase Directive only applied to applicants for refugee status). The Directive still does not apply to applications at consulates. Otherwise, as before, it will apply to those ‘who make an application for international protection on the territory, including at the external border, in the territorial sea or in the transit zones of the Member States, as long as they are allowed to remain on the territory as applicants, as well as to family members, if they are covered by such application for international protection according to national law.’

The 2024 Directive will delete an exception in the current law, which excludes the Directive from applying where the temporary protection Directive (which has been applied in practice to those fleeing the invasion of Ukraine) applies. So in principle this means that anyone covered by temporary protection who decides to apply for asylum in light of temporary protection expiring in March 2025 (as the law now stands) will be covered by the reception conditions Directive – if Member States a) apply this aspect of the 2024 Directive before the deadline to apply it in 2026; and b) opt to apply the temporary protection directive and reception conditions directive simultaneously (the temporary protection directive gives Member States the option not to allow this).

As with the new Qualification Regulation, ‘family member’ will be defined slightly more broadly, to include relationships formed outside the country of refuge, not just those formed inside the country or origin. It will also include adult dependent children. But it will still be necessary for the family members to be present on the territory in connection with the asylum application. A minor must be considered unmarried if the marriage would not have been allowed under the Member State’s national law, especially on grounds of age.

General provisions

Under the current Directive, asylum seekers have to be informed within fifteen days of lodging their application of the rights and benefits to which they are entitled and the obligations placed upon them by Member States. The 2024 Directive provides that they must be given information on the basis of a standard template, within three days of the application, or the deadline to register it under the asylum procedures law. There are expanded provisions on making this information understandable.

As for documentation, under the current law asylum seekers have to be given, within three days of their application, a document certifying their status or the legality of their presence on the territory (subject to certain exceptions), and Member States ‘may’ supply asylum seekers with a travel document ‘when serious humanitarian reasons arise that require their presence in another State’. Member States cannot ‘impose unnecessary or disproportionate documentation or other administrative requirements’ before granting rights under the Directive, solely because the beneficiaries are asylum applicants.

Under the 2024 Directive, the main rules on documentation will be set out instead in the procedures law. The ban on unnecessary etc documentation remains, including now non-discrimination based on nationality. Also, the rules on travel documents are tightened: Member States may ‘only’ supply them in the event of ‘serious humanitarian reasons or other imperative reasons’ that require asylum-seekers’ presence in another State, and the document’s validity must be ‘limited to the purpose and duration needed for the reason for which it is issued’.

A number of changes will be made to the rules on movement within a Member State. Under the current Directive, asylum seekers are entitled to freedom of movement within a Member State, or at least within an assigned area, but Member States can decide on asylum seekers’ residence on grounds of public order, public interest, or the necessity to decide on applications quickly. Member States can also require asylum seekers to reside in a certain place in order to obtain benefits.

Under the 2024 Directive, there are more detailed rules on Member States’ requiring applicants to stay in a particular region, to ensure fair distribution of applicants or efficient processing of applications. There are also revised provisions on limiting free movement to a specific place, linked to the receipt of benefits, on different grounds: ‘for reasons of public order or to effectively prevent the applicant from absconding, where there is a risk of absconding, in particular’ in Dublin cases.

Detention

As before (rules on detention were only added in the second phase Directive), asylum seekers cannot be detailed solely for applying for asylum, and detention must be ‘necessary’ based on an individual assessment. The 2024 Directive will add that they cannot be detailed based solely on their nationality. Another new provision concerns detainees (or would-be detainees) who are special cases, who might be released from detention, or have their detention adjusted, in light of their personal circumstances. It will also now be specified that detention cannot be punitive.

The definition of ‘detention’ – confinement in a particular place, involving the deprivation (not merely the limitation) of free movement within a territory – will not change, so presumably the CJEU case law still applies: detention includes transit zones where the asylum-seekers’ movements are controlled by guards, they live in a small container, and are surrounded by high fences and barbed wire (FMS judgment; C-808/18 Commission v Hungary); the prospect of leaving for a non-Member State does not alter the conclusion that asylum-seekers are detained, because leaving would end the possibility of applying for asylum in a Member State and would not work on its own terms (as there was no effective possibility of applying for asylum there).

The possible grounds for detention will expand from six to seven. However, since the list of grounds will remain exhaustive (‘only’) – leaving aside criminal law outside the scope of the Directive – it will still not be possible to detain asylum seekers purely because housing capacity has been exhausted (VL judgment), because of their inability to cover their needs (FMS judgment), or because they entered illegally (Case C-72/22 PPU) – although the latter point must be qualified in light of the ground to detain pursuant to a border procedure.

First, detention can be justified ‘in order to determine or verify [an asylum seeker’s] identity or nationality’. Second, it can be justified:

(b)

in order to determine those elements on which the application for international protection is based which could not be obtained in the absence of detention, in particular when there is a risk of absconding of the applicant (on the first two grounds for detention, see the K judgment)


The 2024 Directive will now add a definition of ‘risk of absconding’. (Note also that previous case law requires Member States to set out details in national law, concerning a similarly worded definition).

The third ground for detention is the new one. It will be possible to detain asylum seekers ‘in order to ensure compliance with legal obligations imposed on the applicant through an individual decision [requiring residence in a specific place] in cases where the applicant has not complied with such obligations and there is still a risk of absconding of the applicant’. This is linked to the revised rules on requiring residence in a specific place, summarised above.

The fourth ground for detention will be amended. The current text refers to detention ‘in order to decide, in the context of a procedure, on the applicant’s right to enter the territory’. The new version will refer instead to deciding that issue ‘in accordance with’ the border procedures rules in the new asylum procedures Regulation (which will alter the border procedures rules as compared to the current procedures Directive). I will examine in a subsequent blog post whether the revised rules on border procedure detention might alter the Court’s rulings against Hungarian transit zone detention under the current rules (FMS judgment; C-808/18 Commission v Hungary).*

Fifth, an asylum seeker can be detained when subject to a return procedure under the Returns Directive, if ‘the Member State concerned can substantiate on the basis of objective criteria, including that he or she already had the opportunity to access the procedure for international protection, that there are reasonable grounds to believe that he or she is making the application for international protection merely in order to delay or frustrate the enforcement of the return decision’. The Court of Justice has interpreted this ground narrowly (VL judgment; see also the JA ruling).

Sixth, detention can take place ‘when protection of national security or public order so requires’. The CJEU has already interpreted this provision under the current Directive, as discussed here and in Case C-72/22 PPU. Finally, asylum seekers can be detained on the basis of the specific rules in the Dublin Regulation (as replaced).

 

As before, Member States must lay down the grounds for detention in national law, along with the rules on alternatives to detention. There are still no time limits on detention of asylum seekers in general, although the case law on detention under the border procedure under the current asylum procedures law has set time limits, and for failed asylum seekers there are time limits to detention in the Returns Directive. There is already an obligation to give reasons for detention in writing; the new Directive adds a requirement to explain why coercive measures are not used instead.

The provision on judicial review of detention will be amended to provide a deadline (fifteen days, or exceptionally 21 days), with a useful remedy: release from detention after 21 days if there is no ruling. (The current rule on release if detention is unlawful will be retained) The rules on further judicial reviews will now include a requirement of regular automatic reviews of detention of unaccompanied minors. There is no reason to doubt that the Hungarian criminalisation of advice to asylum-seekers (see Case C-821/19) would still breach EU law.

Finally, the guarantees on detention for special cases will now include a requirement to give timely support for those who need it, and not to detain at all those whose health would be put at ‘serious risk’. There will be stronger language requiring that detention of minors is exceptional, and some specific tightening of the circumstances and conditions of their detention: never in prison accommodation (at present this ban only applies to unaccompanied minors, not minors in general) or other law enforcement locations, and only on grounds of safeguarding (for unaccompanied minors) or because their caregivers are detained (for other minors). There are new references to ‘family unity’ and to detention adapted to minors.

Education

The current directive requires access to education ‘under similar conditions’ to nationals, and the new Directive will add a requirement for ‘the same access’ – concepts that are potentially in tension. Education must be ‘integrated’ with that for national children, and be of the ‘same quality’. The waiting period for access to education must be cut from three months to two, with a possible first month not provided within the ‘mainstream’ school system; although it will still be possible to provide education outside the mainstream education system indefinitely, if mainstream education is ‘not possible’ due to the ‘specific situation’ of the minor.

Employment

The second phase Directive cut the waiting period for access to employment, after lodging an asylum claim, from 12 months to 9 months; the 2024 Directive will now cut this to 6 months. As before, this is only triggered if there is no decision on the application yet, and if the delay is not the fault of the applicant. According to the CJEU’s interpretation of the current Directive, a delay is not the fault of the applicant if they appealed against a transfer decision, or did not apply for asylum in the first Member State of entry. But a delay is their fault if they failed to cooperate with the authorities, as defined by the asylum procedures law.

However, there is a new exception, denying access to employment if a Member State has triggered some of the fast-track provisions in the procedures Regulation. (Remember also that the Directive sets minimum standards, so in principle Member States can grant labour market access earlier).

Another new exception, discussed further below, provides that access to employment is lost when the asylum seeker is notified that they must be transferred to another Member State under the Dublin rules. As with the new Dublin exception for benefits, this overturns CJEU case law on the point, and raises the question of the effect of an appeal against the transfer (which was also expressly addressed in the case law, as noted above).

There are more detailed provisions on possible job-market preference, and new rules on equal treatment – although these are also subject to exceptions. It will remain the case that labour market access will be retained during appeals, if the appeals have suspensive effect.

Benefits

As for State assistance, the 2024 Directive maintains (with minor rewording) the current basic rule that Member States must ensure ‘material reception conditions’ that ‘provide an adequate standard of living for applicants, which guarantees their subsistence and protects their physical and mental health’, although assistance can be reduced or eliminated for asylum seekers with means or who have been working. (On the adequacy of financial support under the first phase Directive, see the Saciri judgment) A new provision will state that Member States cannot ask for contributions to health care costs if the health care in question is provided for free to their citizens.

For housing, a new provision will emphasise that it must guarantee an ‘adequate standard of living’. The current rule that Member States must aim to prevent sexual violence or harassment in reception centres will be expanded to refer to ensuring ‘as far as possible, the prevention of assault and violence, including violence committed with a sexual, gender, racist or religious motive’ – which would seem to cover also violence against asylum seekers or reception centres committed by extremist far right groups. Other new provisions state that ‘Member States shall provide separate sanitary facilities for female applicants and a safe place in accommodation centres for them and their minor children’, and give Member States an option to permit asylum seekers to do voluntary work outside reception centres.

As under the current Directive, the 2024 Directive will specify that Member States should change reception centres where asylum-seekers are living only where necessary. The case law on the current Directive says that this does not prevent Member States moving asylum-seekers to a new reception centre when they are preparing to transfer the applicants to another Member State under the Dublin rules (see VW and EV), even if the asylum seekers have appealed against the transfer decision; as we shall see below, the 2024 Directive takes an even stricter approach to those covered by the Dublin rules.

Finally, the current Directive allows a temporary exception from the housing rules where the asylum seeker is a special case or housing provision is temporarily exhausted, provided that ‘basic needs’ are still met. The 2024 rules will amend this, adding also the scenario where ‘due to a disproportionate number of persons to be accommodated or a man-made or natural disaster, housing capacities normally available are temporarily unavailable’. In place of a reference to ‘basic needs’, it will now be specified that in such cases Member States ‘shall in any circumstances ensure access to health care…and a standard of living for all applicants in accordance with Union law, including the Charter of Fundamental Rights of the European Union, and international obligations’. This wording now matches the minimum standards required when reception conditions are reduced or withdrawn, discussed further below. The CJEU has ruled that detention cannot be considered in this context as a form of alternative housing provision (VL judgment); there is nothing in the 2024 Directive to suggest that interpretation should be changed.

Health care provided to asylum seekers has to include as a minimum essential treatment of illness, emergency care, and mental health; the 2024 Directive will add a reference to ‘necessary sexual and reproductive health care which is essential to address a serious physical condition’. It will be expressly specified that health care must be provided even where benefits are otherwise withdrawn due to the applicant being subject to a Dublin transfer.

Reduction or withdrawal of benefits

In the current law, Member States are allowed to reduce or (exceptionally) withdraw reception conditions where rules on reporting or residence have been breached, or if the applicant makes a repeat application as defined in the asylum procedures directive. They can also reduce conditions where ‘an asylum seeker has failed to demonstrate that the asylum claim was made as soon as reasonably practicable after arrival in that Member State’.  Furthermore, conditions can be withdrawn or reduced if the applicant concealed financial resources, and there can be ‘sanctions’ for ‘serious breaches’ of reception centre rules, or ‘seriously violent behaviour’.

The 2024 Directive will provide that benefits can only be withdrawn for violent behaviour (as reworded). But the daily expenses allowance, or other benefits, can also be reduced in the cases referred to in the current law, as well as failure to cooperate with the authorities or failure to comply with integration measures; although the prospect of punishment for late applications (which dates back to a UK demand during the negotiations of the first phase Directive) has been dropped.

Various procedural safeguards in the current law are retained, along with a substantive safeguard: Member States must always retain access to emergency health care and a ‘standard of living in accordance with Union law’ (referring to the EU Charter of Fundamental Rights and international law); this replaces the current minimum requirement of a ‘dignified standard of living’. As noted above, the same rule will apply when Member States temporarily apply an exception to normal benefits rules in special cases or due to overloaded reception capacity.

Interpreting the current rules on withdrawal or reduction of benefits, the CJEU has ruled that ‘sanctions’ for breaches of the rules of an accommodation centre can include reduction or withdrawal of benefits; but a complete withdrawal, making the asylum seeker homeless and giving him only a list of homelessness charities to contact, was a breach of the obligation to ensure a decent standard of living, in accordance with the EU Charter (Haqbin; see also the later TO judgment). The reworded minimum in the 2024 Directive, which adds a reference to the Charter in this context, appears to integrate this case law (although the case law post-dates the 2018 agreement on the text of the Directive), rather than overturn it. EU law requires as an absolute minimum, according to the case law, that the State refrain from imposing ‘extreme material poverty that does not allow that person to meet his or her most basic needs such as a place to live, food, clothing and personal hygiene, and that undermines his or her physical or mental health or puts that person in a state of degradation incompatible with human dignity’.

The biggest change in this area in the 2024 Directive is the overturning of the Court of Justice case law on the position of asylum seekers subject to a Dublin transfer (CIMADE and GISTI). In that case, the Court found that there were no express exceptions in the first phase Directive for Dublin cases, and that transfers might take months to take place or never happen at all. Member States were responsible for ensuring application of the Directive until a transfer was carried out, considering inter alia the right to dignity in the EU Charter of Fundamental Rights. Separately, as noted above, the CJEU has ruled that access to employment is not lost because the asylum seeker did not apply in the first Member State of entry, or is subject to the Dublin rules, or appeals against a Dublin transfer decision with suspensive effect.

In the 2024 Directive, a new clause specifies that access to benefits and employment is ended from the point at which the asylum seeker is notified of a transfer decision under the Dublin rules. However, this does not apply to healthcare, and is ‘without prejudice to the need to ensure a standard of living in accordance with Union law, including the Charter of Fundamental Rights of the European Union, and international obligations.’ As noted above, this test, which also applies to the ‘traditional’ grounds for withdrawing or reducing benefits, appears to be consistent with the case law on those traditional grounds, which rules out a complete removal of support for housing, food, clothing and hygiene.

Special cases

The list of special cases will be expanded to add mentions of LGBTI applicants, PTSD (as an example of mental illness), and victims of ‘gender-based violence’, ‘child or forced marriage, or violence committed with a sexual, gender, racist or religious motive’. There will be a new deadline of 30 days after the asylum claim to complete an assessment (or a separate deadline in the procedures law), and new rules on the obligations for those assessing asylum-seekers. As before, the assessment process is separate from the determination of whether some qualifies as a refugee or needs subsidiary protection.

For specific groups of special cases, as regards minors the 2024 Directive will add references to ‘the need for stability and continuity in care’ and the risk that the minor is ‘a victim of any form of violence or exploitation’, along with references to access to school materials and a safeguarding requirement for anyone working with minors. In the case of unaccompanied minors, there will be deadlines to appoint a representative, as well as a number of other changes to the rules, including the prospect of the minor complaining about the representative. (For a breach of the current version of the obligation to consider the vulnerability of unaccompanied minors, see again the Haqbin judgment – which is also a practical demonstration of the importance of having a representative to litigate in the interests of the unaccompanied minor).

Finally, the provision on victims of torture et al will add specific references to victims of trafficking in human beings, expand on the forms of violence concerned and the motivation for it (‘including sexual-, gender-, racist- or religious-motivated violence), and refer specifically to rehabilitation, counselling and translation needs.

Appeals and final provisions

The current rules on appeals against decisions under the Directive, which include the legal aid aspects of judicial review, are amended to include an appeal against a decision to refuse legal aid because there is ‘no tangible prospect of success’.

The final provisions are amended to require Member States to take account of the EU Asylum Agency’s guidelines for their monitoring and control systems, and to place those systems into the monitoring mechanism set out in the Regulation establishing the Agency.  There is also a new provision requiring Member States to set out contingency planning measures.

The provisions on staff and resources will also refer now to the use of training materials developed by the Agency, as well as the tools on identifying special cases. Finally, the provisions on resources will now refer specifically to ‘translators and interpreters’, ‘taking into account seasonal fluctuations’ in asylum numbers, and allocating resources for ‘local, regional, civil society or international organisations’ which play a role in applying the law in practice.

Comments

According to the Commission’s proposal, the main objectives of the new Directive are to deter movement between Member States, harmonise the law further, and increase self-reliance of asylum-seekers. The former two objectives are shared with the qualification Regulation, as discussed in part 1 of this series, and they are linked: it is often presumed that one reason for movement of asylum seekers between Member States is the differences in their asylum laws (although this assumption is also contested).

Will the Directive deter movement between Member States? For the reasons explained above, Member States cannot enforce the Dublin rules by means of a complete removal of support for food and housing; and since the level of support may be quite low already, the threat may be less effective than Member States hope: asylum seekers might not even hear such threats over the sounds of their rumbling tummies. But it is bound to have some effect – including the removal of access to the labour market, where it is being exercised – and some key questions are left unclear. Since the access cannot be withdrawn until a transfer decision is notified (in CIMADE and GISTI, the Court ruled that the grounds for removal of benefits in the Directive were exhaustive), it cannot be withdrawn at an earlier stage in the Dublin process, so arguably not purely because the applicant did not apply in the first Member State of entry, but only after that fact leads to a transfer decision being made. (It should be recalled that the Dublin rules, even in the 2024 version, are more complex than a simple allocation of responsibility for the asylum claim to the first State of entry in all cases).

What if the asylum seeker appeals the transfer decision, with suspensive effect? Here, the new Directive is silent, and the case law points in both directions: the access to employment case law says that such access remains in light of the appeal, while the benefits case law says that the asylum seeker can be transferred to different housing, in light of the planned transfer, despite an appeal. In my view, it can be inferred from the absence of a provision on the point, and the need to interpret exceptions narrowly in light of Charter rights (both the right to dignity and the right to effective remedies), that appeals against transfer decisions will suspend the removal of benefits and access to employment, as long as those appeals are suspensive as regards the transfer itself. But undoubtedly the counter-argument will be made that this would undermine the attempts to make the Dublin system work efficiently – or, put bluntly, the intention to starve asylum seekers out of resisting its application.

Surely if the appeal against transfer is successful, or the transfer is not carried out by the deadline, then access to benefits and employment must be restored, on any interpretation. All of this will depend in practice on how the revised Dublin system applies in practice, and in particular the wording of the revised rules on transfers and appeals against them (the Dublin rules on detention may be relevant too, as that remains a detention ground under the Directive).   

How much further harmonisation will result from the Directive? There is certainly a degree more harmonisation on a number of points, such as information and documentation, limits on movement, time limits for judicial review of detention, detention guarantees, the details of access to employment, the definition of reception conditions, and special cases. In some cases the harmonisation results from cross-references to other new EU asylum laws, so it is hard to assess the changes in isolation. And in any event, the assumption that harmonisation of standards is closely linked to movement between Member States is in any event contested, as noted above. As regards education, the shorter time limits and expanded use of mainstream education are undercut by the possibility of still providing education outside the mainstream. Finally, the changes to the law on family unity and detention conditions adapted to minors imply that neither US-style family separation nor UK-style painting over Disney murals would be allowed under EU law.

Finally, as for the self-reliance of asylum seekers, the earlier access to the employment market and the clarification of related equal treatment and labour market tests should in principle increase the numbers of asylum seekers able to support themselves via work. But the exceptions for accelerated procedures and the Dublin cut off raise the question of whether the labour market access given with one hand will be in practice taken away with the other. 

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