High Trust Arrangements in a Low Trust Context: The Rwanda Policy’s impact on the Common Travel Area

 

 

Professor Colin Murray, University of Newcastle, and Professor Steve Peers, Royal Holloway University of London

Photo credit: Zairon, via Wikimedia Commons

Introduction

The latest spat between the UK and Ireland over the knock-on consequences of the UK’s Rwanda policy exposes the tangled web of EU law and Common Travel Area (CTA) arrangements which now cover the interactions between both countries’ immigration policies. This post considers these interactions and proposals of the Irish Government to legislate in light of the Irish High Court decision in A v Minister for Justice.

The Realities of the CTA post-Brexit

The CTA has been a remarkably durable feature of relations between the UK and Ireland for over a century. In the immediate aftermath of a bloody war of independence, both countries recognised the mutual benefits of facilitating people moving across their new borders. And even at the height of the Brexit referendum campaign, pro-Brexit campaigners lined up to downplay any concerns around the land border because the CTA would continue after Brexit. Even if it was not, of itself, capable of ensuring an open border on the island of Ireland, the CTA was generally accepted as providing an important ongoing element of UK-Ireland relations. This always underplayed how difficult it was going to be to make these arrangements work post Brexit.

The CTA arrangement has been operable for so long on the basis that it works on two levels; unrestricted movement can take place between the parts of the CTA because each part enforces broadly comparable external rules of entry. For decades, the two states aligned their immigration policy and enforced a shared list of excluded individuals. After both joined the EEC at the same time, these arrangements were augmented by a range of EU law, but Ireland and the UK continued to jointly operate opt outs to let them maintain distinct elements of immigration policy and to provide more legal entitlements to each other’s citizens than they did to other EU citizens (see here).

Post Brexit, the immediate concern was over the UK’s commitment to the CTA. Once Brexit happened, the common external arrangement would no longer be operative, because EU citizens could continue to move freely into Ireland (whereas they would face new restrictions on moving directly to the UK). They could, however, then use the CTA to move into the UK, thereby circumventing the UK’s new immigration policy.  UK ministers, however, remained confident that they could deal with this issue by immigration enforcement away from the border (by requiring banks, landlords, etc to require individuals provide proof of status before accessing services). They therefore signed up to a new CTA deal with Ireland in 2019.

The latest spat in post-Brexit relations between the UK and Ireland, however, involves the necessary corollary of some of the concerns being raised before Brexit took effect. Once the UK set about tightening its restrictions on immigration, and particularly abandoning safeguards around refugees that it had implemented under EU law, would there be a displacement effect as people turned to Ireland instead to process asylum claims. This led to the claims by Ireland’s Justice Minister, Helen McEntee, that not only was there a sharp rise in asylum applications in Ireland in recent months, that 80% of new applicants were now crossing the land border from Northern Ireland. There has not been any evidence published to support this figure (a fact emphasised by some coalition government ministers from other parties, perhaps more alive to the consequences of ramping up these tensions for the CTA).

Groups like the Irish Refugee Council have pointed out that simply because the number of in-country applications has risen, this does not mean that all of those individuals have crossed the land border (people in the country on a different immigration status can make decisions to apply for asylum on the basis of a change in the circumstances of their home country, for example). But the impression that the UK Government’s Rwanda policy has had a direct knock on impact on Ireland, which needs to be addressed, has become central to ministerial thinking.

The position in Ireland

EU asylum law framework

The problem for Ireland is how to enforce returns to the UK, especially in light of the legislation closing off of routes to claim asylum in the UK. The starting point is that Ireland is bound by aspects of EU asylum law, having exercised the possibility to opt in to parts of it. In particular, Ireland opted into the first phase asylum procedures Directive, adopted in 2005, but not the second phase asylum procedures Directive, adopted in 2013 (the ‘2013 Directive’), both of which contain slightly different rules (optional for Member States) on ‘safe third countries’ – ie countries that asylum seekers could arguably make their applications in instead, other than their countries of origin or the country where they are applying now.

The ‘safe third country’ rules in the Directives refer to non-EU countries. If the argument is that the asylum seeker should have applied in an EU Member State or a Schengen associate (Norway, Iceland, Switzerland, Liechtenstein), a different set of rules (the ‘Dublin rules’) apply instead, which determine in detail which Member State is considered responsible for the application, how transfers of asylum-seekers to give effect to the responsibility rules work, and what rights asylum-seekers have to challenge the potential transfers. Ireland has opted in to the current version of those rules – the 2013 version of the Dublin Regulation, known as ‘Dublin III’ – which states that rather than apply those rules to transfer an asylum seeker to another Member State which is responsible, a Member State can choose (as an option) to send an asylum seeker to a non-EU country instead, in accordance with the ‘safe third country’ rules in the 2013 Directive. (One way for Ireland to get around difficulties sending asylum seekers back to the UK would be to revert to the Dublin rules and try to send more of them back to other Member States under those criteria; but that will not always work, for instance because there may not be enough evidence to apply those rules, or the responsibility for the Member State which they first entered illegally to deal with the asylum-seeker may have timed out).

Ireland intends to opt in to the 2024 versions of the Dublin Regulation and the procedures law – which will now become a Regulation – after they are formally adopted, which is scheduled for May 14 (on the details of the new Regulations, see here and here). The procedures Regulation will change the ‘safe third country’ rules again. However, this will not have an immediate impact, since these new Regulations will not apply until mid-2026. So the focus here is the current law.

According to the recent Irish High Court judgment, Ireland had ‘safe third country’ rules at several points previously, but reintroduced the possibility in 2020, when an omnibus law on Brexit amended the International Protection Act 2015 to provide again for ‘safe third countries’ to be designated. Obviously this legal change had the UK in mind – given that the Dublin rules ceased to apply to the UK at the end of 2020, when the Brexit transition period expired. Indeed, the Irish government promptly used these new powers to designate the UK as a ‘safe third country’.

EU ‘safe third country’ rules

The 2005 ‘safe third country’ rules, which apply to Ireland as such, state that a Member State can apply the concept ‘only’ if ‘the competent authorities are satisfied that a person seeking asylum will be treated in accordance with the following principles in the third country concerned:’

a) life and liberty are not threatened on account of race, religion, nationality, membership of a particular social group or political opinion;

b) the principle of non-refoulement in accordance with the Geneva [Refugee] Convention is respected;

c) the prohibition of removal, in violation of the right to freedom from torture and cruel, inhuman or degrading treatment as laid down in international law, is respected; and

d) the possibility exists to request refugee status and, if found to be a refugee, to receive protection in accordance with the Geneva Convention.

The Directive goes on to state that ‘[t]he application of the safe third country concept shall be subject to rules laid down in national legislation, including:’

a) rules requiring a connection between the person seeking asylum and the third country concerned on the basis of which it would be reasonable for that person to go to that country;

b) rules on the methodology by which the competent authorities satisfy themselves that the safe third country concept may be applied to a particular country or to a particular applicant’, which must ‘include case-by-case consideration of the safety of the country for a particular applicant and/or national designation of countries considered to be generally safe’;

c) rules in accordance with international law, allowing an individual examination of whether the third country concerned is safe for a particular applicant which, as a minimum, shall permit the applicant to challenge the application of the safe third country concept on the grounds that he/she would be subjected to torture, cruel, inhuman or degrading treatment or punishment.

Next, Member States must:

a) inform the applicant accordingly; and

b) provide him/her with a document informing the authorities of the third country, in the language of that country, that the application has not been examined in substance.

Finally, if the non-EU country concerned ‘does not permit the applicant for asylum to enter its territory, Member States shall ensure that access to a procedure is given in accordance with the basic principles and guarantees described in’ the Directive.

The 2013 Directive is similar, except for adding ‘there is no risk of serious harm as defined in Directive 2011/95/EU [the EU Directive on definition of refugee and subsidiary protection status] to the list of principles that must apply in the non-EU country, and providing that the applicant must be permitted to argue that the non-EU country ‘is not safe in his or her particular circumstances’ and ‘to challenge the existence of a connection between him or her and the third country in accordance with’ the Directive.

The impact of designating a country as a ‘safe third country’ is that the application is inadmissible on the merits – on the assumption that it will be considered on the merits in the other country instead, because it is presumed that the asylum-seeker will apply for asylum in that country after being expelled there. The case will be fast-tracked, and it may be harder to stay on the territory in the event of an appeal against the decision than in some other cases.

The Court of Justice has ruled several times on the interpretation of the ‘safe third country’ rules in the 2013 Directive: Cases C-564/18, C-821/19, and C-924/19 and C-925/19 PPU, inter alia ruling that the principle does not apply to transit countries, and that Hungary had not fully provided for the guarantees related to the ‘safe third country’ concept’ required by the Directive in its national law.

The High Court judgment

The Irish High Court judgment ruled that the Irish government’s designation of the UK as a ‘safe third country’ was unlawful; but it did not rule on whether or not the UK was actually safe. This apparent paradox stems from the nature of administrative law, which often concerns itself with whether the public administration followed the correct procedure, rather than the merits of the decision – in part because courts are often more willing to review the procedure which a government applied to take a decision than the merits of that decision, which are seen as to some extent a matter of political discretion. So it’s possible that after a court quashes a government measure as unlawful on procedural grounds, the government could back and lawfully adopt the same decision again, provided that it now does so following the correct procedure. (And to knock on the head another common misconception: a minister taking an unlawful decision does not mean that the minister has committed a crime)

So why was the designation of the UK as a ‘safe third country’ unlawful? Mainly because the Irish law from 2020 providing the powers to designate such countries was not fully consistent with EU law, particularly because it did not provide the guarantees required in the 2013 Directive, which is cross-referenced in the Dublin III Regulation. (As noted above, the CJEU came to a very similar conclusion regarding Hungary’s lack of full application of those guarantees, but oddly the High Court judgment makes no reference to this case law). Also, there had not been a continual review of the position in the UK.

However, this did not mean – despite a popular misconception on this point – that the High Court judgment ruled that the UK was unsafe because of the UK’s Rwanda policy. In fact the judgment is at pains to point out that it was not reaching any conclusion on the Rwanda policy one way or another.

The Irish government’s response

The Irish government has announced plans to adopt legislation to designate the UK as a ‘safe third country’. Depending on the content, this may be sufficient to address the specific reasons why the High Court found that the previous designation was unlawful. But this is not the end of the story, because, as we have seen, the High Court did not get into the merits of whether the UK was ‘safe’ or not, particularly in light of the Rwanda policy, which has moreover developed since. Any fresh legislation could be challenged on those grounds. It’s even possible, if fresh challenges are brought, that an Irish court may want to send questions to the CJEU on this or other aspects of interpretation of the ‘safe third country’ rule. (Incidentally, as the Irish High Court did not rule on the merits of whether or not the UK was 'safe', the Irish government - unlike the UK recently - is not legislating to overturn a court judgment on whether another country is 'safe').

Furthermore, there are other elements to the EU rule, not discussed much in the High Court ruling. As noted above, there must be a ‘connection’ between the asylum seeker and the non-EU country (a point notably missing from the Rwanda policy, on the UK side), and the case law says that mere transit is not enough to create a connection. The two asylum-seekers concerned by the previous High Court judgment had been deemed to have spent enough time in the UK to have a ‘connection’, but that will arguably not be the case for all asylum-seekers who might make their way via the UK to Ireland.

Another point – also scrapped on the UK side in the Rwanda policy – is that the asylum-seeker must be readmitted by the non-EU country. The EU rules thus aim to avoid the very limbo that thousands of asylum-seekers are subject to in the UK, where their cases are inadmissible but with no country willing or obliged to decide their applications on the merits. While the High Court judgment refers to UK willingness to readmit asylum seekers previously (see para 44), the UK has now announced that it is not willing to do so, perhaps because it views the CTA arrangements as not binding. This obviously creates a further issue on the EU side (on the readmission/’safe third country’ nexus in EU law, see the pending Case C-134/23).

Immigration Policy for the whole of the UK?

As well as the Irish dimension to this argument, there is also a Northern Irish aspect. Notwithstanding the current wrangling, many question marks hang over the UK’s policy under the Illegal Migration Act 2023, as extended by the Rwanda Act 2024, and particularly over how they apply in the context of Northern Ireland. As part of the EU-UK Withdrawal Agreement the UK committed to ensuring no diminution of rights and equality protections operative in Northern Ireland law as a result of EU law because of Brexit (Windsor Framework, Article 2). It did so to avoid any claim that Brexit jeopardised the rights provisions of the Belfast/Good Friday Agreement 1998, some of which had come to rely upon EU law in practice. This concession headed off a lightning-rod argument for opposition to Brexit in the Northern Ireland context, and enabled the deal to proceed.

But now that these arrangements are in place, and operative, it means that Northern Ireland has a separate (and higher) floor of rights protections than the remainder of the UK. It is arguable that many aspects of EU law applicable to asylum seekers, and providing protections for them (including the Trafficking Directive), continue in full effect in Northern Ireland post Brexit. As pointed out in previous posts (here and here) the courts have the ability to disapply statutes insofar as they conflict with the Windsor Framework arrangements. In other words, this casts doubt on whether the UK Government’s flagship policy on asylum seekers can apply equally in all parts of the UK. The issue has already been argued before the Northern Ireland High Court with regard to the Illegal Migration Act (judgment is pending). Even if the Rwanda Act closes off many legal challenges, asylum seekers within Northern Ireland are therefore likely to try to use the Windsor Framework to challenge any deportations under these measures for the foreseeable future. 

Conclusions

Amid the tangle post-Brexit arrangements, both countries appear to be talking at cross purposes. For the UK Government, Brexit removed its obligations to comply with the Dublin III regulations and the arrangements thereunder for return of asylum seekers to other EU countries (and it cites the restrictions on it being able to enforce the return of individuals to France post Brexit as evidence of this). For the Irish Government, the Dublin III process might have been used when both countries were EU Member States, but the underlying CTA relationship sprang back into full effect (although conditioned by its own EU obligations) once the overlaying EU law was removed post Brexit. In reality, so much of the CTA relies on shared understandings and reciprocal nods, that there is considerable scope for misinterpretation. Indeed, two countries which were engaging with each other in the close collaborative relationship that the CTA requires might well have been expected to publicly make the appropriate arrangements in advance of Brexit taking effect (but that, alas, is not where UK-Ireland relations are at – see Professor Bernard Ryan here).

Elections loom in both Ireland and the UK, and many politicians in both countries have decided that there are votes to be won in looking tough on immigration. When refugees and asylum-seekers are at issue, however, it is difficult to ignore the fact that both countries process a relatively low number of asylum claims on a European level. But both countries are at loggerheads over policies which increasingly put the CTA arrangements in jeopardy and which seek to ignore the fact that conflict and persecution necessarily create more refugees. Both, it has to be concluded, would like this to be someone else’s problem.

The new EU asylum laws, part 6: the new Dublin rules on responsibility for asylum-seekers

 

Professor Steve Peers, Royal Holloway, University of London

Photo credit: Ggia, via Wikimedia Commons

(last updated 10 June 2024: changed text marked by an asterisk)

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. These five laws joined the previously agreed revised laws on qualification of refugees and people with subsidiary protection, reception conditions for asylum-seekers, and resettlement of refugees from outside the EU. Taken together, all these laws are a ‘package’ of new or revised EU asylum laws.* The whole package was formally adopted on May 14 2024, and published in the EU Official Journal on 22 May 2024.*

I’ve looked at all the new legislation on this blog in a series of blog posts, which are based on a forthcoming article.* This is the sixth post in the series, on the Regulation on Asylum and Migration Management – which I will refer to as the ‘revised Dublin Regulation’ or ‘2024 Dublin Regulation’ for the sake of simplicity. The other blog posts in the series concern the new qualification Regulation (part 1), the revised reception conditions Directive (part 2), the new Regulation on resettlement of refugees (part 3), the revised Regulation on Eurodac (part 4), the Regulation on screening of migrants (part 5), the Regulation on asylum procedures (part 7), and the crisis Regulation and general conclusions (part 8). 

The 2024 package joins the previous Regulation revising the powers of the EU asylum agency, which was separated from the package and adopted already in 2021.* (On EU asylum law generally, see my asylum law chapter in the latest edition of EU Justice and Home Affairs Law).

The 2024 Dublin Regulation: background

After an early failed attempt to negotiate rules on responsibility for asylum-seekers in the broader Council of Europe framework, a group of EU Member States agreed rules on the issue as part of the Schengen Convention in 1990. These rules were then extended to all Member States in the Dublin Convention in the same year. Subsequently, the Dublin system became part of the EU development of the Common European Asylum System (CEAS): the first phase of the CEAS included a ‘Dublin II Regulation’, adopted in 2003, and the second phase included a ‘Dublin III Regulation’, adopted in 2013. During the perceived ‘refugee crisis’, there were two emergency decisions on ‘relocation’ of asylum-seekers (moving some of them from Italy and Greece, who were responsible for their applications, to a different Member State, to reduce the burdens on those frontline States), but they expired in 2017. The case law on the Dublin II Regulation and Dublin III Regulation is presumably still relevant to the 2024 Regulation, except where the latter has changed the text of the rules.

The UK and Ireland both opted into the Dublin II and III Regulations. The UK is no longer part of the Dublin system, as a consequence of Brexit (for more on the Brexit angle, see my comments for the UK in a Changing Europe in 2020; note that since I wrote that, the UK has not negotiated any replacement for Dublin with the EU as a whole or individual Member States, resorting to the Rwanda policy instead). Ireland opted out of the 2024 Dublin Regulation, but has announced an intention to opt in to it after adoption.* Denmark is opted out of the Regulation as such, but nevertheless participates in the Dublin system via a treaty with the EU. There is also a Dublin association treaty with Norway and Iceland, and subsequently with Switzerland and Liechtenstein, in parallel to those countries’ association with Schengen.

The legislative process leading to the 2024 Regulation began with a proposal in 2016, which I commented on at the time. Since this proved particularly difficult to agree, a new proposal was tabled in 2020 as part of the relaunch of the proposed EU Immigration and Asylum Pact.

Substance of the Regulation

Like most of the new asylum laws (except the resettlement Regulation, which will apply almost immediately), the new Dublin rules will apply in about two years’ time - on 1 July 2026.* But certain provisions will have some effect earlier than that, as discussed below. Furthermore, the Commission must produce a ‘common implementation plan’ to the Council within three months of the Regulation’s entry into force (it is planning to issue this early, in June); Member States must produce national implementation plans by 12 December 2024.*

In addition to amending the traditional Dublin rules on criteria for responsibility for asylum applications, and also the process for the transfer of asylum-seekers to the responsible Member State, the 2024 version of the Dublin Regulation does two more (closely linked) things: it sets up an overall framework for asylum and immigration management within the EU, and establishes a solidarity mechanism to share the burden of applications between Member States. This blog post examines in turn the amendments to changes to responsibility, the related procedural rights, and the transfer process, followed by discussion of the new rules on migration management and solidarity, and concluding with an overall assessment.

Criteria for responsibility

As before, there is an underlying obligation for Member States to consider asylum applications, which will be considered by a single Member State responsible under the Dublin criteria; if the criteria do not indicate a responsible Member State, the default is where the application was registered (previously where the application was lodged; the procedures Regulation details the differences between these concepts). It is still possible to send an applicant to a ‘safe third country’ as defined by the procedures law rather than apply the Dublin rules (on which see the CJEU ruling in Mirza, and the recent Irish judgment finding that the UK was wrongly designated a ‘safe’ country in this context). A new provision allocates responsibility if an asylum seeker fails a security check: the Member State conducting the check then becomes responsible for the application.

The exception to the Dublin rules where there are serious human rights breaches in the responsible State (dating back to the CJEU’s interpretation of the Dublin II Regulation in NS and ME, and added to the text of the Dublin III Regulation), also remains. But there are some amendments to the exception: it now solely refers to Article 4 of the EU Charter on Fundamental Rights (the ban on facing torture or other inhuman or degrading treatment), rather than also to ‘systemic flaws in the asylum procedure and in the reception conditions for applicants in that Member State’; the clauses on dependent persons and the sovereignty clause (both discussed below) must also be considered; and it is possible to consider all Member States (not just those responsible according to the Dublin criteria) before the Member State where the application was registered becomes responsible. The former change is perhaps due to CJEU case law which confirmed that asylum-seekers could also not be returned to a Member State where they faced an Article 4 risk because of their individual situation, or because of a risk of severe material poverty (see respectively CK and Jawo). On the other hand, the CJEU has rejected arguments that the exception applies where there are flaws applying the qualification criteria in the other Member State (Cases C-228/21 etc), although in some circumstances ‘pushbacks’ would be a ground for challenging Dublin transfers (Case C-392/22). (The position of those – other than resettled persons – who already have international protection in one Member State but seek it in another Member State due to human rights problems in the former State is governed by the procedures Regulation).

A new provision in the 2024 Regulation expressly obliges each asylum-seeker to apply in the Member State of first entry. This has long been the popular conception of what the Dublin rules do anyway, but in fact they previously only referred to obligations for Member States, not asylum-seekers – although of course this will often have amounted to a de facto obligation for asylum seekers in practice, to the extent that Member States attempted to enforce the rules. As a derogation from this new rule, asylum seekers must apply in a Member State that gave them a residence document or visa; if that residence document or visa has expired or been withdrawn et al, they must apply in the Member State where they are present. Asylum-seekers also have further obligations: to cooperate in providing evidence relevant to the Dublin rules; to provide biometric data for the Eurodac database; to be present in the Member State where they were obliged to apply, or which is responsible, or which they were relocated to; and to cooperate and comply with a transfer decision.

What if the asylum-seeker does not comply with these obligations? Another new clause sets out consequences for non-compliance: loss of certain reception conditions under the revised reception conditions Directive, subject to the conditions that the asylum-seeker was informed and that a basic standard of living is maintained. This exception was discussed in Part 2 of this series, commenting on that revised Directive. But there are exceptions, which are not mentioned in that Directive, if there are reasonable grounds to  believe that the asylum-seeker is a victim of human trafficking, as defined by EU law, as well as a general obligation to ‘take into account the individual circumstances of the applicant, including any real risk of violations of fundamental rights in the Member State where the applicant is required to be present’, together with the principle of proportionality.

Moving on to the criteria for responsibility themselves, they still apply in the order in which they appear – but there are some changes, both to those criteria and to that order of appearance. First of all, the criteria relating to responsibility for unaccompanied minors (starting with responsibility for the Member State where there is a legally present family member or sibling) are largely unchanged, although the default rule is now where the minor’s application was ‘first registered’, rather than where it was ‘lodged’; this seems to change the case law (see Case C-648/11). Secondly, the criterion assigning responsibility to the Member State where a family member has international protection has been widened, to include also Member States where the family member has EU long-term residence on the basis of the EU long-term residence Directive (or national long-term residence, if the Directive does not apply to the Member State in question). However, the third criterion – where family members are themselves asylum-seekers, if they are awaiting a first instance decision on the substance – is unchanged.

Underlying these criteria is the definition of ‘family member’, which has been amended. It now applies to family relationships that pre-dated entry into the territory, not only to families which existed in the country of origin; so it would now cover (for example) Syrians who got married or had a child while in Turkey. Otherwise the definition is the same (spouse or unmarried partner, if national immigration law treats spouses and partners the same; unmarried minor children of the couple or applicant; or the parent or other adult responsible for an unmarried minor). Similar changes were made to the family reunion definition in the qualifications and reception conditions rules, as we saw in Parts 1 and 2 of this series.

The next criterion remains holding a residence document or visa. Here, the rules have changed to provide for a longer period of responsibility where either the residence document (three years instead of two) or visa (18 months, instead of six) has expired (on the CJEU’s interpretation of ‘residence documents’ and ‘visa’, see Case C-568/21 on diplomatic cards, and Jafari on the Merkel waiver of the rules in 2015). Along the same lines, there is then a wholly new criterion: the Member State where the asylum-seeker obtained a diploma or other qualification, if it was attained less than six years before the asylum application. The next two criteria are not new, but rather have been moved higher up the list of criteria, now trumping irregular entry: those who entered on the basis of a visa waiver, or who applied in the international transit area of an airport.

The irregular entry criterion – the best known rule, but obviously not the only one, or even the first one – is now the bottom of the list (leaving aside the default of where the application was registered), and has itself been amended: responsibility now expires 20 months after the irregular border crossing of a Member State (instead of 12); the ‘Sangatte clause’ on responsibility for irregular stay on the territory of a Member State has been dropped; and there are new provisions on search and rescue cases (responsibility expiring after 12 months) and relocation (on interpretation of this criterion, see again Jafari). Finally, the special provisions on dependents, and the ‘sovereignty clause’ allowing Member States to accept cases that are not their responsibility under the rules (or to request another Member State that is not responsible to accept responsibility), remain largely unchanged (there’s extensive case law on the sovereignty clause, leaving Member States with discretion to apply it: see most recently Case C-359/22. In a dig at Merkel, the 2016 proposal would have curtailed its use substantially, but that proposal got nowhere).

Procedural rights

At the start of the Dublin process, the right to information for asylum-seekers has been expanded to include more issues. There is a new right to legal counselling at this point. The previous rules on the right to an interview have been amended, inter alia to add details on the questions to be asked and a requirement to record the interview (in place of a written summary). (On the scope and effect – under the Dublin III Regulation – of the rights to information and an interview, see Cases C-228/21 etc) Next, the previous rules on the rights of minors have also been amended, in particular to elaborate on the role of the child’s representatives, expand upon the notion of the ‘best interests of the child’, and require an assessment before transferring an unaccompanied minor.

As for remedies once a transfer decision has been made, Member States are still obliged to inform asylum seekers if another Member State has agreed to take back or take charge of them, with additional obligations to inform them of the obligation to comply. While there is still a right to an effective remedy against a transfer, the detailed rules on the remedy restrict it compared to the Dublin III Regulation. In particular, the scope of the remedy is now limited to assessment of specific issues (Article 4 of the Charter, new circumstances since the transfer decision, or an application of the responsibility criteria related to family members), effectively overturning prior case law which allowed for exercise of appeal rights in more cases (see, for instance, Ghezelbash). It is now specified that Member States must give asylum seekers at least one week, but not more than three weeks, to bring an appeal. Also, the prospects of suspensive effect of an appeal have been weakened by making the main rule merely a request for suspensive effect, dropping stronger options. Finally, the right to legal aid for such appeals is retained.

Moving on to detention pending a Dublin transfer, detention solely for being subject to a Dublin procedure is still ruled out. But the threshold to detain has been lowered (a ‘risk of absconding’, in place of a ‘significant risk of absconding’), and there is now a second ground to detain (‘where the protection of national security or public order so requires’). There is still a general rule that detention must be for ‘as short a period as possible’, and ‘for no longer than the time reasonably necessary to complete the required administrative procedures with due diligence until the transfer under this Regulation is carried out’, and the previous time limits requiring a fast track application of the transfer rules where an asylum seeker was detained have been shortened. As for detention conditions, they are still governed by cross-reference to the reception conditions Directive (see Part 2 of this series), although specific procedural guarantees (reasons for detention in writing, speedy judicial review) have been added to the 2024 Dublin Regulation itself. This is potentially confusing, as these provisions in the Regulation are an abridged version of the guarantees in the Directive.

Transfer process

The detailed rules on Member States’ obligations have been amended, inter alia to extend the obligations to take back asylum seekers to include those who have been admitted under an EU or national resettlement scheme but move irregularly to the territory of another Member State (on the EU resettlement scheme, see Part 3 of this series). Apparently, the obligation for the responsible Member State to consider the merits of an application made by an asylum-seeker who moves to another Member State has been dropped; the procedures Regulation in fact treats such cases as normally withdrawn. Also, there are revised rules on the cessation of responsibility, meaning that Member States remain responsible for longer. The deadlines to request another Member State to take charge of an applicant are shorter, as are the deadlines to reply to those requests. There are similar changes to the rules on take back requests. If a request to take charge or take back is accepted, the requesting State must adopt a transfer decision within two weeks.

The next step in the process – the transfer itself – must still be carried out within six months of the acceptance of the transfer request or the final decision on appeal. But the previous exception extending the deadline to eighteen months when the asylum-seeker absconds has been extended further to three years, and now also applies when the asylum-seeker ‘is physically resisting the transfer, is intentionally making himself or herself unfit for the transfer, or is not complying with medical requirements for the transfer.’ (There’s extensive prior case law on this deadline, for instance as regards covid cases and trafficking in persons).

Migration management and solidarity framework

The new provisions on migration management start with a general obligation on the EU and its Member States to establish comprehensive migration management, which is further broken down into internal and external components. There is also a general obligation to ensure solidarity and the fair sharing of responsibility, backed up by a ‘Migration Toolbox’ of EU policies. Member States must establish national strategies to manage migration and asylum, and the Commission must build on this to adopt a (non-binding) long-term EU Migration Management Strategy. The first of these strategies must be adopted within 18 months of the entry into force of the Regulation (so likely late 2025 or early 2026), and then every five years afterward, including a ‘prominent role’ for the case law of the CJEU and the European Court of Human Rights.

Next, the Commission must adopt an annual report on asylum and migration, ‘assessing the asylum, reception and migratory situation over the previous 12 month period and any possible developments providing a strategic situational picture of the area of migration and asylum that also serves as an early warning and awareness tool for the Union’. The report must assess migration developments, provide a forward projection, examine preparedness and capacity, and judge whether solidarity measures are necessary. Reports must be issued by October 15 each year, starting in 2025. Together with the annual report, the Commission must adopt an implementing decision defining which Member States are ‘under migratory pressure, at risk of migratory pressure or facing a significant migratory situation’ – which, as we will see, is linked to the solidarity rules under the new Dublin Regulation.

Also at the same time, the Commission must present a proposal for a Council implementing measure establishing the ‘Solidarity Pool’ – ‘to address the migratory situation in the upcoming year in a balanced and effective manner’, and which ‘shall reflect the annual projected solidarity needs of the Member States under migratory pressure’. This will identify the EU-wide annual needs for solidarity, which must be ‘at least’ 30,000 relocations and €600 million in financial contributions, setting out indicative shares of these contributions from each Member State based on the annual key in the Regulation, to ‘with a view to facilitating’ a pledging exercise. The need for solidarity is the norm: the Commission can only propose that such contributions are unnecessary in ‘exceptional situations’. There seems to be no possibility to propose numbers of relocations between zero and 30,000, or contributions below €600 million.

Conversely, these numbers could be higher, and also the Commission ‘may identify other forms of solidarity…depending on the needs for such measures arising from the specific challenges in the area of migration in the Member State concerned’. But if the numbers are higher, the ratio between relocations and financial contributions ‘shall be maintained’ (ie raising the financial contributions to €900 million would mean raising the relocations to 45,000). In proposing the size of the Pool, the Commission has to ‘take into account relevant qualitative and quantitative criteria, including, for the relevant year, the overall number of arrivals, the average recognition rates as well as the average return rates’. Due to the political sensitivity of the discussion, the Commission’s proposal will be secret until the Council has adopted the implementing decision.

To follow up the Commission proposal, there is a ‘High Level Solidarity Forum’ of Member States’ representatives, chaired by the Council Presidency, which will consider the Commission proposals within 15 days. This Forum is the venue for Member States to pledge towards the solidarity requirements; it can be reconvened if arguably more solidarity is necessary. The process is assisted by a technical-level forum and an EU Solidarity Coordinator, appointed by the Commission.

The Regulation’s provisions on solidarity explain further what the Solidarity Pool will consist of: relocation of both asylum-seekers and (if both States consent) beneficiaries of international protection, if they obtained their status less than three years before the Council act adopting the Solidarity Pool (those with international protection must also consent to relocation, but asylum-seekers are only consulted); financial contributions as regards asylum and migration, including possibly to non-EU countries ‘that might have a direct impact on the migratory flows at the external borders of Member States or improve the asylum, reception and migration system of the third country concerned, including assisted voluntary return and reintegration programmes’; and alternative measures, which focus ‘on operational support, capacity building, services, staff support, facilities and technical equipment’.

As for the Council decision establishing the Solidarity Pool each year, it shall be adopted by qualified majority (including amendments to the Commission proposal). Presumably the Council can amend the proposed number of relocations and financial support, either up or down. Crucially, ‘Member States shall have full discretion in choosing between the types of solidarity measures’, or a combination of them: in other words, they do not necessarily have to relocate asylum-seekers (the preamble also states that relocation is ‘voluntary’). The final decision will be based on what Member States are willing to pledge – a change from at least one of the 2015 relocation decisions, which set relocation numbers that some Member States disagreed with.

The Regulation then sets out the process by which Member States identified in the Commission’s decision as facing migratory pressure make use of the Solidarity Pool. Also, a Member State which was not identified as facing migratory pressure may apply to make use of the Pool; in that case the Commission must assess that Member State’s argument that it is facing such pressure. Presumably a refusal could be challenged. If the Commission agrees with the Member State, the Council will assess whether there is any capacity left in the Solidarity Pool for that year; if there is insufficient capacity, the Council will reopen the pledging process.

Member States facing migratory pressure, or a significant migratory situation (or which consider that they face such scenarios) can also ask to deduct some or all of their pledged contributions to the Pool. The Council will decide, following an assessment by the Commission, whether to agree to this request or not. Alternatively, under some circumstances, Member States’ relocation pledges can be offset by taking responsibility for applications that are not their responsibility under the Regulation. In other words, Germany might pledge to take 5,000 asylum-seekers from Greece to share its burden; but in practice this might take the form of Germany not transferring 5,000 asylum-seekers to Greece and dealing with their applications instead, even though Greece would normally have responsibility for them.

Assessment

A key objective of the 2024 changes to the EU asylum system is to ensure more migration control by enhancing the efficiency of the EU asylum system, in part by restricting secondary movements of asylum seekers (ie movements between Member States). The notion of restricting such secondary movements has always been in profound tension with the liberalisation of the movement of people across the EU. But the revised Dublin rules are internally contradictory on top. They aim simultaneously to make the Dublin system work via placing more restrictions on secondary movement, and yet to disapply aspects of that system because of the unacceptable strain it places on some Member States. Not since the grand old Duke of York had a favourite hill has there been so much pointless circular activity. And this comes despite the recent acceptance that the EU’s temporary protection regime for those fleeing the invasion of Ukraine should be run on an ‘applicants’ choice’ basis.

The main changes with a view to ‘making Dublin work’ are the restrictions on appeals against transfer, the (conditional) loss of benefits and rights to have an application considered due to secondary movements, the explicit obligations to comply, the wider grounds for detention, longer time periods for responsibility for applications, and shorter deadlines for administrative decision-making. Of these, the rules on appeals against transfers and loss of benefits and rights to apply particularly aim to achieve this aim by reducing the rights of asylum-seekers.

On the former point, the 2024 Dublin rules reduce both the scope of the right to appeal against a transfer and its effectiveness in practice (in particular by limiting the previous options for suspensive effect), potentially altering the dynamics of the whole Dublin system: there might be fewer cases reaching the CJEU due to the limitation of the scope of appeals, and more asylum seekers may be simultaneously challenging their transfer while starting their substantive application in the Member State they have been transferred to, due to the limits on suspensive effect. And because of the fast-tracks in the procedures Regulation, the latter process may even be completed before the former. The limits on the scope of appeal seems to be based on the cases in which the CJEU has explicitly mentioned the EU Charter in this context: see, for instance, Abdullahi (Article 4 Charter); Case C-19/21 (family criteria); and Shiri (information available after the transfer decision). Time will tell whether the CJEU accepts this limitation of the right to an effective remedy in other cases.

As for the ‘undoing the effects of Dublin’ provisions, they are new in the Dublin Regulation as such; but they can be compared to the previous relocation decisions. The mandatory relocation numbers in the previous decisions were never much complied with in practice, and so a more voluntary approach to relocations should at least reduce the prospect of non-compliance. But this misses the point: for the frontline Member States, the non-compliance was only a symptom; the underlying disease is the lack of sufficient solidarity. And the new Dublin Regulation does not cure the disease as such; it simply alters the dynamics of treatment. The issue will now be whether Member States will pledge enough relocations in the first place; and the compliance with those pledges in practice may yet be a further issue again on top.

Finally, as regards the possibility of the UK participating in the revised Dublin rules, the discussion of the new rules above confirms that the frequent (and previously debunked) claim from the UK government that the Labour party is seeking to take 100,000 asylum seekers a year from the EU is false. Quite apart from the lack of expressed interest from the EU (so far) in negotiations, the Labour party’s clarification that it seeks a much more narrow arrangement, and the voluntary nature of relocation under the Regulation, it is obviously mathematically impossible that the UK’s share of the 30,000 annual relocations that must be proposed by the Commission under the rules is…100,000. Perhaps the real intention is to provide further evidence for the Prime Minister’s proposal that all pupils should study maths until age 18?

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 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 2024 Directive now adds 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 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.