Legal provisions of COM(2011)320 - Standards for the reception of asylum seekers (Recast) Amended proposal for a DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL laying down standards for the reception of asylum seekers (Recast)

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Contents

CHAPTER I - PURPOSE, DEFINITIONS AND SCOPE

Article 1 - Purpose

The purpose of this Directive is to lay down minimum standards for the reception of asylum seekers in Member States.

Article 2 - Definitions

For the purposes of this Directive:

(a) 'Geneva Convention' shall mean the Convention of 28 July 1951 relating to the status of refugees, as amended by the New York Protocol of 31 January 1967;

(b) 'application for asylum' shall mean the application made by a third-country national or a stateless person which can be understood as a request for international protection from a Member State, under the Geneva Convention. Any application for international protection is presumed to be an application for asylum unless a third-country national or a stateless person explicitly requests another kind of protection that can be applied for separately;

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(a) 'application for international protection' means an application for international protection as defined in point (h) of Article 2 of Directive […/…/EU] [the Qualification Directive];

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(b)(c) 'applicant' Ö, 'applicant for international protection' Õ or 'asylum seeker' shall mean Ö means Õ a third country national or a stateless person who has made an application for asylum ð international protection ï in respect of which a final decision has not yet been taken;

(c) (d) 'family members' shall mean Ö means Õ, in so far as the family already existed in the country of origin, the following members of the applicant's family who are present in the same Member State in relation to the application for asylum ð international protection ï:

Ö (i) when the applicant is an adult; Õ

(i) - the spouse of the asylum seeker or his or her unmarried partner in a stable relationship, where the legislation or practice of the Member State concerned treats unmarried couples in a way comparable to married couples under its law relating to aliens Ö third country nationals Õ ;

(ii) - the minor children of the couple Ö couples Õ referred to in the first indent point (i) or of the applicant, on condition that they are unmarried and dependent and regardless of whether they were born in or out of wedlock or adopted as defined under the national law;

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- the married minor children of couples referred to in the first indent of point (i) or of the applicant, regardless of whether they were born in or out of wedlock or adopted as defined under the national law, provided they are not accompanied by their spouses and it is in their best interests to consider them as family members;

(ii) when the applicant is an unmarried minor:

- the father, mother, regardless of whether the applicant was born in or out of wedlock or adopted as defined under the national law, or the adult responsible for the applicant whether by law or by the national practice of the Member State concerned ;

- the minor siblings of the applicant, regardless of whether they were born in or out of wedlock or adopted as defined under the national law, provided they are unmarried or married but not accompanied by their spouses and it is in their best interests to be considered family members;

(iii) when the applicant is a married minor, the persons referred to in point (ii) provided the applicant is not accompanied by his/her spouse and it is in the best interests of the applicant or his/her siblings to consider the persons referred to in point (ii) as family members.

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(e) 'refugee' shall mean a person who fulfils the requirements of Article 1(A) of the Geneva Convention;

(f) 'refugee status' shall mean the status granted by a Member State to a person who is a refugee and is admitted as such to the territory of that Member State;

(g) 'procedures' and 'appeals', shall means the procedures and appeals established by Member States in their national law;

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(d) 'minor' means a third-country national or stateless person below the age of 18 years;

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(e)(h) 'unaccompanied minors' shall mean Ö means Õ ð a minor ï persons below the age of eighteen who arrive Ö arrives Õ in the territory of the Member States unaccompanied by an adult responsible for them him/her whether by law or by ð the national practice of the Member State concerned ï custom, and for as long as they are Ö he/she is Õ not effectively taken into the care of such a person; it shall include minors Ö includes a minor Õ who Ö is Õ are left unaccompanied after they have Ö he/she has Õ entered the territory of Member States;

(f)(i) 'reception conditions' shall mean Ö means Õ the full set of measures that Member States grant to asylum seeker in accordance with this Directive;

(g)(j) 'material reception conditions' shall mean Ö means Õ the reception conditions that include housing, food and clothing provided in kind, or as financial allowances or in vouchers, ð or a combination of the three ï, and a daily expenses allowance;

(h)(k) 'detention' shall mean Ö means Õ confinement of an asylum seeker by a Member State within a particular place, where the applicant is deprived of his or her freedom of movement;

(i)(l) 'accommodation centre' shall mean Ö means Õ any place used for collective housing of asylum seekers;.

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(j) 'representative' means a person or an organisation appointed by the competent bodies to act as a legal guardian in order to assist and represent an unaccompanied minor in procedures provided for in this Directive with a view to ensuring the child's best interests and exercising legal capacity for the minor where necessary. Where an organisation acts as a representative, it shall appoint a person responsible for carrying out the duties of the legal guardian in respect of the minor, in accordance with this Directive;

(k) 'applicant with special reception needs' means a vulnerable applicant, in line with Article 21, who is in need of special guarantees in order to benefit from the rights and comply with the obligations provided for in this Directive.

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Article 3 - Scope

1. This Directive shall apply to all third country nationals and stateless persons who make an application for asylum ð international protection ï at the border, or in the territory, Ö including at the border, Õ ð in the territorial waters or in the transit zones, ï of a Member State, as long as they are allowed to remain on the territory as asylum seekers, as well as to family members, if they are covered by such application for ð international protection ï asylum according to the national law.

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2. This Directive shall not apply in cases of requests for diplomatic or territorial asylum submitted to representations of Member States.

3. This Directive shall not apply when the provisions of Council Directive 2001/55/EC of 20 July 2001 on minimum standards for giving temporary protection in the event of a mass influx of displaced persons and on measures promoting a balance of efforts between Member States in receiving such persons and bearing the consequences thereof are applied.

4. Member States may decide to apply this Directive in connection with procedures for deciding on applications for kinds of protection other than that emanating from ð Directive […/…/EU] [the Qualification Directive] ï the Geneva Convention for third-country nationals or stateless persons who are found not to be refugees.

Article 4 - More favourable provisions

Member States may introduce or retain more favourable provisions in the field of reception conditions for asylum seekers and other close relatives of the applicant who are present in the same Member State when they are dependent on him or for humanitarian reasons insofar as these provisions are compatible with this Directive.

CHAPTER II - GENERAL PROVISIONS ON RECEPTION CONDITIONS

Article 5 - Information

1. Member States shall inform asylum seekers, within a reasonable time not exceeding fifteen days after they have lodged their application for ð international protection ï asylum with the competent authority, of at least any established benefits and of the obligations with which they must comply relating to reception conditions.

Member States shall ensure that applicants are provided with information on organisations or groups of persons that provide specific legal assistance and organisations that might be able to help or inform them concerning the available reception conditions, including health care.

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2. Member States shall ensure that the information referred to in paragraph 1 is in writing and, as far as possible, in a language that the applicants ð understand or ï may Ö are Õ reasonably be supposed to understand. Where appropriate, this information may also be supplied orally.

Article 6 - Documentation

1. Member States shall ensure that, within three days after an application ð for international protection ï is lodged with the competent authority, the applicant is provided with a document issued in his or her own name certifying his or her status as an asylum seeker or testifying that he or she is allowed to stay in the territory of the Member State while his or her application is pending or being examined.

If the holder is not free to move within all or a part of the territory of the Member State, the document shall also certify this fact.

2. Member States may exclude application of this Article when the asylum seeker is in detention and during the examination of an application for ð international protection ï asylum made at the border or within the context of a procedure to decide on the right of the applicant legally to enter the territory of a Member State. In specific cases, during the examination of an application for ð international protection ï asylum, Member States may provide applicants with other evidence equivalent to the document referred to in paragraph 1.

3. The document referred to in paragraph 1 need not certify the identity of the asylum seeker.

4. Member States shall adopt the necessary measures to provide asylum seekers with the document referred to in paragraph 1, which must be valid for as long as they are authorised to remain in the territory of the Member State concerned or at the border thereof.

5. Member States may provide asylum seekers with a travel document when serious humanitarian reasons arise that require their presence in another State.

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6. Member States shall not impose any documentation or other administrative requirements on asylum seekers before granting the rights to which they are entitled under this Directive for the sole reason that they are applicants for international protection.

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Article 7 - Residence and freedom of movement

1. Asylum seekers may move freely within the territory of the host Member State or within an area assigned to them by that Member State. The assigned area shall not affect the unalienable sphere of private life and shall allow sufficient scope for guaranteeing access to all benefits under this Directive.

2. Member States may decide on the residence of the asylum seeker for reasons of public interest, public order or, when necessary, for the swift processing and effective monitoring of his or her application ð for international protection ï.

3. When it proves necessary, for example for legal reasons or reasons of public order, Member States may confine an applicant to a particular place in accordance with their national law.

3.4. Member States may make provision of the material reception conditions subject to actual residence by the applicants in a specific place, to be determined by the Member States. Such a decision, which may be of a general nature, shall be taken individually and established by national legislation.

4.5. Member States shall provide for the possibility of granting applicants temporary permission to leave the place of residence mentioned in paragraphs 2 and 43 and/or the assigned area mentioned in paragraph 1. Decisions shall be taken individually, objectively and impartially and reasons shall be given if they are negative.

The applicant shall not require permission to keep appointments with authorities and courts if his or her appearance is necessary.

5.6. Member States shall require applicants to inform the competent authorities of their current address and notify any change of address to such authorities as soon as possible.

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Article 8 - Detention

1. Member States shall not hold a person in detention for the sole reason that he/she is an applicant for international protection in accordance with Directive […/…/EU] [the Asylum Procedures Directive].

2. When it proves necessary and on the basis of an individual assessment of each case, Member States may detain an applicant, if other less coercive alternative measures cannot be applied effectively.

3. Without prejudice to Article 11 and to detention in the framework of criminal proceedings, an applicant may only be detained:

(a) in order to determine or verify his/her identity or nationality;

(b) in order to determine, within the context of a preliminary interview, the elements on which the application for international protection is based which could not be obtained in the absence of detention;

(c) in the context of a procedure, to decide on the right to enter the territory;

(d) when protection of national security or public order so requires.

These grounds shall be laid down in national law.

4. Member States shall ensure that rules concerning alternatives to detention, such as regular reporting to the authorities, the deposit of a financial guarantee, or an obligation to stay at an assigned place, are laid down in national law.

Article 9 - Guarantees for detained asylum seekers

1. Detention shall be for as short a period as possible and shall only be maintained for as long as the grounds set out in Article 8(3) are applicable.

Administrative procedures relevant to the grounds set out in Article 8(3) shall be executed with due diligence. Delays in the administrative procedures that cannot be attributed to the asylum seeker shall not justify a continuation of detention.

2. Detention shall be ordered by judicial or administrative authorities. Where detention is ordered by administrative authorities, it shall be confirmed by judicial authorities within 72 hours from the beginning of the detention. Where the judicial authority finds detention to be unlawful, or there is no decision within 72 hours, the asylum seeker concerned shall be released immediately.

3. Detention shall be ordered in writing. The detention order shall state the reasons in fact and in law on which it is based and the procedures laid down in national law for challenging it, in a language the asylum seeker understands or is reasonably supposed to understand. It shall immediately be provided to the detained asylum seeker.

4. Detention shall be reviewed by a judicial authority at reasonable intervals of time, either ex officio or on request by the asylum seeker concerned, in particular whenever it is of a prolonged duration or relevant circumstances arise or new information becomes available which may affect the lawfulness of detention.

5. In cases of an appeal or review of the detention order, Member States shall ensure that asylum seekers have access to free legal assistance and representation, where they cannot afford the costs involved and in so far as it is necessary to ensure their effective access to justice.

Legal assistance and representation shall include, at least, the preparation of the required procedural documents and representation before the judicial authorities.

Legal assistance and representation may be restricted to legal advisers or counsellors specifically designated by national law to assist and represent asylum seekers.

Procedures for access to legal assistance and representation in such cases shall be laid down in national law.

Article 10 - Conditions of detention

1. Detention shall only take place in specialised detention facilities.

Asylum seekers in detention shall be kept separately from other third country nationals who have not lodged an application for international protection unless it is necessary to ensure family unity and the applicant consents thereto.

2. Detained asylum seekers shall have access to open-air spaces.

3. Member States shall ensure that persons representing the United Nations High Commissioner for Refugees have the possibility to communicate with applicants and to have access to detention facilities. This also applies to an organisation which is working in the territory of the Member State concerned on behalf of the United Nations High Commissioner for Refugees pursuant to an agreement with that Member State.

4. Member States shall ensure that family members, legal advisers or counsellors and persons representing relevant non-governmental organisations recognised by the Member State concerned, have the possibility to communicate with applicants and have access to detention facilities. Limits to access may be imposed only where, by virtue of national law, they are objectively necessary for the security, public order or administrative management of the detention facility, provided that access is not thereby severely limited or rendered impossible.

5. Member States shall ensure that asylum seekers in detention are systematically provided with information which explains the rules applied in the facility and sets out their rights and obligations in a language they understand or are reasonably supposed to understand.

6. In duly justified cases and for a reasonable period which shall be as short as possible Member States may derogate:

(a) from the first subparagraph of paragraph 1 where accommodation in specialised detention facilities is temporarily not available and, as a consequence, Member States are obliged to resort to prison accommodation, provided that asylum seekers in detention are kept separately from ordinary prisoners; unaccompanied minors shall not, however, be kept in prison accommodation;

(b) from paragraph 5 when the asylum seeker is detained at a border post or in a transit zone with the exception of cases referred to in Article 43 of Directive […/…/EU] [the Asylum Procedures Directive].

Article 11 - Detention of vulnerable persons and persons with special reception needs

1. In all cases, vulnerable persons shall not be detained unless it is established that their health, including their mental health, and well-being, will not significantly deteriorate as a result of the detention.

Where vulnerable persons are detained, Member States shall ensure regular monitoring and adequate support taking into account their particular situation including their health.

2. Minors shall not be detained unless it is established in an individual case that it is in the minor's best interests, as prescribed in Article 23(2).

Detention of minors shall be a measure of last resort, after having established that other less coercive alternative measures cannot be applied effectively. It shall be for as short a period as possible and all efforts shall be made to release the detained minors and place them in accommodation suitable for minors.

Detention of unaccompanied minors shall be resorted to only in particularly exceptional cases.

Where minors are detained, they shall have the possibility to engage in leisure-activities, including play and recreational activities appropriate to their age.

Minors shall have access to open-air spaces.

Where unaccompanied minors are detained, Member States shall ensure that they are accommodated separately from adults.

3. Detained families shall be provided with separate accommodation guaranteeing adequate privacy.

4. Where female asylum seekers are detained, Member States shall ensure that they are accommodated separately from male asylum seekers, unless these are family members and all concerned individuals consent thereto.

Exceptions may also apply for the use of common spaces designed for recreational or social activities including the provision of meals.

5. In duly justified cases and for a reasonable period that shall be as short as possible Member States may derogate from the fourth subparagraph of paragraph 2, paragraph 3 and the first subparagraph of paragraph 4, when the asylum seeker is detained at a border post or in a transit zone, with the exception of cases referred to in Article 43 of Directive […/…/EU] [the Asylum Procedures Directive].

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Article 12 - 8 Families

Member States shall take appropriate measures to maintain as far as possible family unity as present within their territory, if applicants are provided with housing by the Member State concerned. Such measures shall be implemented with the asylum seeker's agreement.

Article 13 - 9 Medical screening

Member States may require medical screening for applicants on public health grounds.

Article 14 - 10 Schooling and education of minors

1. Member States shall grant to minor children of asylum seekers and to asylum seekers who are minors access to the education system under similar conditions as nationals of the host Member State for so long as an expulsion measure against them or their parents is not actually enforced. Such education may be provided in accommodation centres.

The Member State concerned may stipulate that such access must be confined to the State education system.

Minors shall be younger than the age of legal majority in the Member State in which the application for asylum was lodged or is being examined. Member States shall not withdraw secondary education for the sole reason that the minor has reached the age of majority.

2. Access to the education system shall not be postponed for more than three months from the date the application for ð international protection ï asylum was lodged by ð or on behalf of ï the minor or the minor's parents. This period may be extended to one year where specific education is provided in order to facilitate access to the education system.

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Preparatory classes, including language classes, shall be provided to minors where it is necessary to facilitate their access and integration to the national education system.

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3. Where access to the education system as set out in paragraph 1 is not possible due to the specific situation of the minor, the Member State ð shall ï may offer other education arrangements ð in accordance with national law and practices ï.

Article 15 - 11 Employment

1. Member States shall determine a period of time, starting from the date on which an application for asylum was lodged during which an applicant shall not have access to the labour market.

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1. Member States shall ensure that applicants have access to the labour market no later than 6 months following the date when the application for international protection was lodged.

Member States may extend that time limit for a period not exceeding a further six months, in the cases provided for in points (b) and (c) of Article 31(3)of Directive […/…/EU] [the Asylum Procedures Directive].

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2. If a decision at first instance has not been taken within one year of the presentation of an application for asylum and this delay cannot be attributed to the applicant, Member States shall decide the conditions for granting access to the labour market for the applicant ð, in accordance with their national law, while ensuring asylum seekers have effective access to the labour market. ï.

3. Access to the labour market shall not be withdrawn during appeals procedures, where an appeal against a negative decision in a regular procedure has suspensive effect, until such time as a negative decision on the appeal is notified.

4. For reasons of labour market policies, Member States may give priority to EU citizens and nationals of States parties to the Agreement on the European Economic Area and also to legally resident third-country nationals.

Article 16 - 12 Vocational training

Member States may allow asylum seekers access to vocational training irrespective of whether they have access to the labour market.

Access to vocational training relating to an employment contract shall depend on the extent to which the applicant has access to the labour market in accordance with Article 15 11.

Article 17 - 13 General rules on material reception conditions and health care

1. Member States shall ensure that material reception conditions are available to applicants when they make their application for asylum ð international protection ï.

ê 2003/9/EC (adapted)

2. Member States shall Ö ensure that Õ make provisions on material reception conditions Ö provide an adequate Õ to ensure a standard of living Ö for applicants for international protection, which guarantees their subsistence and protects their physical and mental health Õ adequate for the health of applicants and capable of ensuring their subsistence.

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Member States shall ensure that that standard of living is met in the specific situation of ð vulnerable ï persons who have special needs, in accordance with Article ð 21 ï 17 , as well as in relation to the situation of persons who are in detention.

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

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

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

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

Where Member States provide material reception conditions in the form of financial allowances or vouchers, the amount thereof shall be determined in accordance with the principles set out in this Article.

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5. Where Member States provide material reception conditions in the form of financial allowances and vouchers, the amount thereof shall be determined on the basis of the point(s) of reference established by the Member State concerned either by law or practice to ensure adequate standards of living for nationals, such as the minimum level of social welfare assistance. Member States may grant less favourable treatment to asylum applicants compared to nationals in this respect, where it is duly justified.

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Article 18 - 14 Modalities for material reception conditions

1. Where housing is provided in kind, it should take one or a combination of the following forms:

(a) premises used for the purpose of housing applicants during the examination of an application for ð international protection ï asylum lodged ð made ï at the border ð or in transit zones ï;

(b) accommodation centres which guarantee an adequate standard of living;

(c) private houses, flats, hotels or other premises adapted for housing applicants.

2. ð Without prejudice to any specific conditions of detention as stipulated in Articles 10 and 11, ï Ö in relation to housing referred to in paragraph 1(a), (b) and (c), Õ Member States shall ensure that applicants provided with the housing referred to in paragraph 1(a), (b) and (c) are assured:

(a) Ö applicants are guaranteed Õ protection of their family life;

(b) Ö applicants have Õ the possibility of communicating with relatives, legal advisers ð or counsellors ï, Ö persons representing Õ and representatives of the United Nations High Commissioner for Refugees (UNHCR) and ð other relevant national, international and non-governmental organisations and bodies ï non governmental organisations (NGOs) recognised by Member States.

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(c) ð Family members ï, legal advisers advisors or counsellors of asylum seekers, Ö persons representing Õ and representatives of the United Nations High Commissioner for Refugees Ö (UNHCR) Õ Ö and Õ or ð relevant ï non-governmental organisations designated by the latter and recognised by the Member State concerned Ö are Õ shall be granted access to accommodation centres and other housing facilities in order to assist the said asylum seekers. Limits on such access may be imposed only on grounds relating to the security of Ö these premises Õ the centres and facilities and of the asylum seekers.

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3. Member States shall take into consideration gender and age specific concerns and the situation of vulnerable persons in relation to applicants within the premises and accommodation centres referred to in paragraph 1(a) and (b).

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4. Member States shall Ö take appropriate measures to prevent Õ pay particular attention to the prevention of assault ð and gender based violence including sexual assault, ï within the premises and accommodation centres referred to in paragraph 1(a) and (b).

3. Member States shall ensure, if appropriate, that minor children of applicants or applicants who are minors are lodged with their parents or with the adult family member responsible for them whether by law or by custom.

5. 4. Member States shall ensure that transfers of applicants from one housing facility to another take place only when necessary. Member States shall provide for the possibility for applicants to inform their legal advisers advisors ð or counsellors ï of the transfer and of their new address.

6. 5. Persons working in accommodation centres shall be adequately trained and shall be bound by the confidentiality principle as defined in the national law in relation to any information they obtain in the course of their work.

7. 6. Member States may involve applicants in managing the material resources and non-material aspects of life in the centre through an advisory board or council representing residents.

7. Legal advisors or counsellors of asylum seekers and representatives of the United Nations High Commissioner for Refugees or non-governmental organisations designated by the latter and recognised by the Member State concerned shall be granted access to accommodation centres and other housing facilities in order to assist the said asylum seekers. Limits on such access may be imposed only on grounds relating to the security of the centres and facilities and of the asylum seekers.

8. ð In duly justified cases, ï Member States may exceptionally set modalities for material reception conditions different from those provided for in this Article, for a reasonable period which shall be as short as possible, when:

(a) - an initial assessment of the specific needs of the applicant is required ð , in accordance with Article 22 ï ,

- material reception conditions, as provided for in this Article, are not available in a certain geographical area,

(b) - housing capacities normally available are temporarily exhausted,

- the asylum seeker is in detention or confined to border posts..

These different conditions shall cover in any case basic needs.

Article 19 - 15 Health care

1. Member States shall ensure that applicants receive the necessary health care which shall include, at least, emergency care and essential treatment of illness ð or post traumatic disorders ï.

2. Member States shall provide necessary medical or other assistance to applicants who have special ð reception ï needs, ð including appropriate mental health care where needed ï.

CHAPTER III - REDUCTION OR WITHDRAWAL OF Ö MATERIAL Õ RECEPTION CONDITIONS

Article 20 - 16 Reduction or withdrawal of Ö material Õ reception conditions

1. Member States may reduce or withdraw Ö material Õ reception conditions in the following cases:

(a) where an asylum seeker:

(a) - abandons the place of residence determined by the competent authority without informing it or, if requested, without permission, or

(b) - does not comply with reporting duties or with requests to provide information or to appear for personal interviews concerning the asylum procedure during a reasonable period laid down in national law, or

(c) - has already lodged ð a subsequent application as defined in Article 2(q) of […/…/EU] [the Asylum Procedures Directive] ï an application in the same Member State. Ö, or Õ

Ö (d) has concealed financial resources and has therefore unduly benefited from material reception conditions. Õ

Ö In relation to cases (a) and (b), Õ Wwhen the applicant is traced or voluntarily reports to the competent authority, a duly motivated decision, based on the reasons for the disappearance, shall be taken on the reinstallation of the grant of some or all of the Ö material Õ reception conditions Ö withdrawn or reduced Õ;.

(b) where an applicant has concealed financial resources and has therefore unduly benefited from material reception conditions.

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

2. Member States may refuse conditions in cases 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.

2. 3. Member States may determine sanctions applicable to serious breaching of the rules of the accommodation centres as well as to seriously violent behaviour.

3. 4. Decisions for reduction, withdrawal or refusal of Ö material Õ reception conditions or sanctions referred to in paragraphs 1, 2 and 3 2 shall be taken individually, objectively and impartially and reasons shall be given. Decisions shall be based on the particular situation of the person concerned, especially with regard to persons covered by Article ð 21 ï 17 , taking into account the principle of proportionality. Member States shall under all circumstances ensure access to emergency health care ð in accordance with Article 19 ï.

4. 5. Member States shall ensure that material reception conditions are not withdrawn or reduced before a negative decision is taken Ö in accordance with paragraph 3 Õ.

CHAPTER IV - PROVISIONS FOR ð VULNERABLE PERSONS ï PERSONS WITH SPECIAL NEEDS

Article 21 - 17 General principle

1. Member States shall take into account the specific situation of vulnerable persons such as minors, unaccompanied minors, disabled people, elderly people, pregnant women, single parents with minor children ð, victims of trafficking, persons with serious physical illnesses, mental illnesses, or post-traumatic disorders, ï and persons who have been subjected to torture, rape or other serious forms of psychological, physical or sexual violence, in the national legislation implementing ð this Directive ï the provisions of Chapter II relating to material reception conditions and health care.

2. Paragraph 1 shall apply only to persons found to have special needs after an individual evaluation of their situation.

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Article 22 - Identification of the special reception needs of vulnerable persons

1. Member States shall establish mechanisms with a view to identifying whether the applicant is a vulnerable person and, if so, has special reception needs, also indicating the nature of such needs. Those mechanisms shall be initiated within a reasonable time after an application for international protection is made. Member States shall ensure that these special reception needs are also addressed, in accordance with the provisions of this Directive, if they become apparent at a later stage in the asylum procedure.

Member States shall ensure adequate support for persons with special reception needs throughout the duration of the asylum procedure and shall provide for appropriate monitoring of their situation.

2. The identification mechanisms provided for in paragraph 1 shall be without prejudice to the assessment of international protection needs pursuant to Directive […/…/EU] [the Qualification Directive].

ê 2003/9/EC

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Article 23 - 18 Minors

1. The best interests of the child shall be a primary consideration for Member States when implementing the provisions of this Directive that involve minors. ð Member States shall ensure a standard of living adequate for the minor's physical, mental, spiritual, moral and social development. ï

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2. In assessing the best interests of the child, Member States shall in particular take due account of the following factors:

(a) family reunification possibilities;

(b) the minor’s well-being and social development, taking into particular consideration the minor’s ethnic, religious, cultural and linguistic background;

(c) safety and security considerations, in particular where there is a risk of the minor being a victim of trafficking;

(d) the views of the minor in accordance with his/her age and maturity.

3. Member States shall ensure that minors have access to leisure-activities, including play and recreational activities appropriate to their age within the premises and accommodation centres referred to in Article 18(1)(a) and (b) and to open-air activities.

ê 2003/9/EC

4. 2. Member States shall ensure access to rehabilitation services for minors who have been victims of any form of abuse, neglect, exploitation, torture or cruel, inhuman and degrading treatment, or who have suffered from armed conflicts, and ensure that appropriate mental health care is developed and qualified counselling is provided when needed.

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5. Member States shall ensure, if appropriate, that minor children of applicants or applicants who are minors are lodged with their parents or with the adult family member responsible for them whether by law or by custom ð the national practice of the Member States concerned, provided this is in the best interests of the minors concerned ï.

ê 2003/9/EC

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Article 24 - 19 Unaccompanied minors

1. Member States shall as soon as possible take measures to ensure the necessary representation of unaccompanied minors by legal guardianship or, where necessary, representation by an organisation which is responsible for the care and well-being of minors, or by any other appropriate representation ð that a representative represents and assists the unaccompanied minor to enable him/her to benefit from the rights and comply with the obligations provided for in this Directive. The representative shall have the necessary expertise in the field of childcare and shall perform his/her duties in accordance with the principle of the best interests of the child, as prescribed in Article 23(2).ï

Regular assessments shall be made by the appropriate authorities.

2. Unaccompanied minors who make an application for ð international protection ï asylum shall, from the moment they are admitted to the territory to the moment they are obliged to leave the host Member State in which the application for ð international protection ï asylum was made or is being examined, be placed:

(a) with adult relatives;

(b) with a foster-family;

(c) in accommodation centres with special provisions for minors;

(d) in other accommodation suitable for minors.

Member States may place unaccompanied minors aged 16 or over in accommodation centres for adult asylum seekers, ð if it is in their best interests, as prescribed in Article 23(2)ï .

As far as possible, siblings shall be kept together, taking into account the best interests of the minor concerned and, in particular, his or her age and degree of maturity. Changes of residence of unaccompanied minors shall be limited to a minimum.

ê 2003/9/EC (adapted)

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3. ð Member States shall establish mechanisms for tracing the family members of an unaccompanied minor. ï Ö They Õ Member States protecting the unaccompanied minor's best interest shall endeavour ð start ï to trace, the members of Ö the unaccompanied minor's Õ his or her family ð, where necessary with the assistance of international or of other relevant organisations, ï as soon as possible ð after an application for international protection is made whilst protecting his/her best interests ï. In cases where there may be a threat to the life or integrity of the minor or his or her close relatives, particularly if they have remained in the country of origin, care must be taken to ensure that the collection, processing and circulation of information concerning those persons is undertaken on a confidential basis, so as to avoid jeopardizing their safety.

ê 2003/9/EC

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4. Those working with unaccompanied minors shall have had ð and shall continue to ï or receive appropriate training concerning their needs, and shall be bound by the confidentiality principle as defined in the national law, in relation to any information they obtain in the course of their work.

Article 25 - 20 Victims of torture and violence

1. Member States shall ensure that, if necessary, persons who have been subjected to torture, rape or other serious acts of violence receive the necessary treatment of damages caused by the aforementioned acts ð, in particular access to rehabilitation services that should allow for obtaining medical and psychological treatment ï.

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2. Those working with victims of torture, rape or other serious acts of violence shall have had and shall continue to receive appropriate training concerning their needs, and shall be bound by the confidentiality rules provided for in the relevant national law, in relation to any information they obtain in the course of their work.

ê 2003/9/EC (adapted)

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CHAPTER V - APPEALS

Article 26 - 21 Appeals

1. Member States shall ensure that negative decisions relating to the granting ð, withdrawal or reduction ï of benefits under this Directive or decisions taken under Article 7 which individually affect asylum seekers may be the subject of an appeal within the procedures laid down in the national law. At least in the last instance the possibility of an appeal or a review ð, in fact and in law, ï before a judicial body shall be granted.

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2. In relation to the cases referred to in paragraph 1, Member States shall ensure that asylum seekers have access to free legal assistance and representation, where they cannot afford the costs involved and in so far as it is necessary to ensure their effective access to justice.

Legal assistance and representation shall include at least preparation of the required procedural documents and representation before the judicial authorities.

Legal assistance and representation may be restricted to legal advisers or counsellors specifically designated by national law to assist and represent asylum seekers.

ê 2003/9/EC

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2. Procedures for access to legal assistance ð and representation ï in such cases shall be laid down in national law.

CHAPTER VI - ACTIONS TO IMPROVE THE EFFICIENCY OF THE RECEPTION SYSTEM

Article 22 - Cooperation

Member States shall regularly inform the Commission on the data concerning the number of persons, broken down by sex and age, covered by reception conditions and provide full information on the type, name and format of the documents provided for by Article 6.

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Article 27 - Competent authorities

Each Member State shall notify the Commission of the authorities responsible for fulfilling the obligations arising under this Directive. Member States shall inform the Commission of any changes in the identity of such authorities.

ê 2003/9/EC

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Article 28 - 23 Guidance, monitoring and control system

1. Member States shall, with due respect to their constitutional structure, ð put in place relevant mechanisms in order to ï ensure that appropriate guidance, monitoring and control of the level of reception conditions are established.

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2. Member States shall submit relevant information to the Commission in the form set out in Annex I, by [1 year after the transposition deadline] at the latest.

ê 2003/9/EC

Article 29 - 24 Staff and resources

1. Member States shall take appropriate measures to ensure that authorities and other organisations implementing this Directive have received the necessary basic training with respect to the needs of both male and female applicants.

2. Member States shall allocate the necessary resources in connection with the national provisions enacted to implement this Directive.

ê 2003/9/EC (adapted)

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CHAPTER VII - FINAL PROVISIONS

Article 30 - 25 Reports

By ð [two years after the transposition deadline] at the latest ï 6 August 2006, the Commission shall report to the European Parliament and the Council on the application of this Directive and shall propose any amendments that are necessary.

Member States shall send the Commission all the information that is appropriate for drawing up the report, including the statistical data provided for by Article 22 by ð […/…/…] ï 6 February 2006.

After presenting the Ö first Õ report, the Commission shall report to the European Parliament and the Council on the application of this Directive at least every five years.

ê 2003/9/EC (adapted)

Article 31 - 26 Transposition

1. Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with this Directive by 6 February 2005Ö Articles […] [The articles which have been changed as to the substance by comparison with the earlier Directive] and Annex I by […] at the latest Õ. They shall forthwith inform Ö communicate to Õ the Commission thereofÖ the text of those provisions and a correlation table between those provisions and this Directive Õ.

When the Member States adopt these measures Ö those provisions Õ , they shall contain a reference to this Directive or shall be accompanied by such a reference on the occasion of their official publication. Member States shall determine how such a reference is to be made. Ö They shall also include a statement that references in existing laws, regulations and administrative provisions to the directive repealed by this Directive shall be construed as references to this Directive. Member States shall determine how such reference is to be made and how that statement is to be formulated. Õ

2. Member States shall communicate to the Commission the text of the Ö main Õ provisions of national law which they adopt in the field relating to the enforcement of Ö covered by Õ this Directive.

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Article 32 - Repeal

Directive 2003/9/EC is repealed for the Members States bound by this Directive with effect from [day after the date set out in the first subparagraph of Article 31(1) of this Directive], without prejudice to the obligations of the Member States relating to the time-limit for transposition into national law of the Directive set out in Annex II, Part B.

References to the repealed Directive shall be construed as references to this Directive and shall be read in accordance with the correlation table in Annex III.

ê 2003/9/EC (adapted)

Article 33 - 27 Entry into force

This Directive shall enter into force on the Ö twentieth Õ day Ö following that Õ of its publication in the Official Journal of the European Union.

Ö Articles [...] [ The articles which are un changed by comparison with the earlier Directive ] and Annex I shall apply from [day after the date set out in the first subparagraph of Article 31(1)]. Õ

Article 34 - 28 Addressees

This Directive is addressed to the Member States Ö in accordance with the Treaties Õ in accordance with the Treaty establishing the European Union.