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 18 June 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’ve looked at these agreements for new legislation on this blog, based on a forthcoming article.* These laws are a ‘package’ of new or revised EU asylum laws, which was formally adopted on 14 May 2024, and published in the EU Official Journal on 22 May 2024.*
This is the second blog post in the series, on the revised reception conditions Directive.* For the first blog post, on the new qualification Regulation, see here.* Part 3 concerns the resettlement Regulation, part 4 concerns Eurodac, part 5 concerns the Screening Regulation, part 6 concerns the revised Dublin rules, part 7 concerns the asylum procedures Regulation, and part 8 concerns the crisis Regulation (plus general comments).* There’s also an earlier analysis of the revised reception conditions Directive on this blog, by Vasiliki Apatzidou.
The 2024 asylum package joins the Regulation revising the powers
of the EU asylum agency, which was separated from the package and
adopted already in 2021.* (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 is in effect 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 includes 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.
None of the measures
in the package can be fully understood without the context of all the others –
which I discuss 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.
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 is a Directive, which means that Member States are still 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 is the
only Directive applicable in the field of asylum law, other than the temporary protection Directive.
As for the level of harmonisation,
the 2024 reception conditions Directive still sets 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 has become unique in the field
of asylum law (besides the temporary protection Directive), as the equivalent provisions in the laws on qualifications and
procedures have been dropped, in favour of full harmonisation in principle –
although note that some provisions in the qualification and procedures
Regulations are still only 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 - namely 12 June 2026.* Unlike the other measures in the 2024 package, there is no transitional clause, so it is not clear if the 2024 Directive will apply also to applications still pending on 12 June 2026, or only to applications made after it; the point could be relevant particularly to grounds for detention, sanctions for not complying with Dublin rules, or earlier access to employment.*
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 deleted an
exception in the 2013 law, which excluded 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 2013 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 2013 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
have expanded 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 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 is 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). Part 7 discusses 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 is 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 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 is 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 2013 directive requires
access to education ‘under similar conditions’ to nationals, and the new
Directive adds 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 now cuts 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, discussed in part 7.* (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 emphasises that it must guarantee an ‘adequate standard of living’.* The 2013 Directive rule that Member States must aim to prevent sexual violence or harassment in
reception centres is 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 2013 Directive,
the 2024 Directive specifies that Member States should change reception
centres where asylum-seekers are living only where necessary.* The case law on
the 2013 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 2013 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 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 is now 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 adds a reference to ‘necessary
sexual and reproductive health care which is essential to address a serious
physical condition’.* It is 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 2013 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 provides 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 2013 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 2013 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 2013 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 2013 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 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 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.
