Explanatory Memorandum to COM(2008)815 - Minimum standards for the reception of asylum seekers (Recast) - Main contents
Please note
This page contains a limited version of this dossier in the EU Monitor.
| dossier | COM(2008)815 - Minimum standards for the reception of asylum seekers (Recast). |
|---|---|
| source | COM(2008)815  |
| date | 03-12-2008 |
This proposal is a recasting of Council Directive 2003/9/EC of 27 January 2003 laying down minimum standards for the reception of asylum seekers i (hereafter – the Reception Conditions Directive).
The Commission's Evaluation Report on the application of the Reception Conditions Directive in Member States issued on 26 November 2007 i as well as contributions received by various stakeholders in response to the Green Paper consultation process i have identified a number of deficiencies regarding the level of reception conditions for asylum seekers which mainly results from the fact that the Directive currently allows Member States a wide margin of discretion concerning the establishment of reception conditions at national level.
As announced in the Policy Plan on Asylum i, this proposal is part of a first package of proposals which aim to ensure a higher degree of harmonisation and better standards of protection for the Common European Asylum System (CEAS). It is adopted at the same time of the recast of the Dublin i and Eurodac i Regulations. In 2009, the Commission will propose to amend the Qualification Directive i and the Asylum Procedures Directive i. In addition, in the first quarter of 2009 the Commission will propose the establishment of a European Asylum Support Office, which will aim to provide practical assistance to Member States in taking decisions on asylum claims. The Support Office will also provide assistance to Member States who are faced with particular pressures on their national asylum system, notably because of their geographical position, to comply with requirement of Community legislation, by providing specific expertise and practical support.
Work on the creation of a CEAS started immediately after the entry into force of the Treaty of Amsterdam in May 1999, on the basis of the orientations given by the Tampere European Council. During the first phase of the CEAS (1999-2005), the goal was to harmonise Member States' legal frameworks on the basis of common minimum standards. The Reception Conditions Directive was the first of the five pieces of EU asylum legislation flowing from the Tampere Conclusions. It aims to establish reception conditions that will normally suffice to ensure asylum seekers a dignified standard of living and comparable living conditions in all Member States.
The Hague Programme invited the Commission to conclude the evaluation of the first-phase legal instruments and to submit proposals for the second-phase instruments and measures to the Council and the European Parliament with a view to their adoption before the end of 2010. This proposal responds to that call; it aims to address adequately the deficiencies identified during the first-phase of the asylum legislation.
Detailed analysis of the problems identified in relation to this directive and concerning the preparation carried out for its adoption, the identification and assessment of policy options and the identification and assessment of the preferred policy option are included in the Impact Assessment, annexed to this proposal.
This proposal is fully in line with the Tampere European Council Conclusions of 1999 and the Hague programme of 2004 in relation to the establishment of the CEAS.
The Commission considered that before proposing any new initiative, an in-depth reflection and debate with all the relevant stakeholders on the future architecture of the CEAS was necessary. It therefore presented a Green Paper in June 2007, which aimed to identify possible options for shaping the second phase of the CEAS. The response to the public consultation included 89 contributions from a wide range of stakeholders.[9] The issues raised and the suggestions put forward during the consultation have provided the basis for the Policy Plan that defines a road-map for the coming years and lists the measures that the Commission intends to propose in order to complete the second phase of the CEAS, including the proposal to amend the Reception Conditions Directive. The Policy Plan also identifies a number of objectives to be met during the second phase of the asylum legislation concerning the reception of asylum seekers.
The Commission's Evaluation Report was prepared on the basis of two studies on the state of application of the Directive.[10] These studies provided the Commission with valuable information regarding the areas to be addressed in the present amending proposal.
On 5 March 2008 the Commission informally discussed the broad outline of this proposal with the Member States in the Committee on Immigration and Asylum (CIA). Meetings were also organised between December 2007 and March 2008 with academic experts, Member States, NGOs, UNHCR and Members of the European Parliament in order to seek their opinion on the further improvement of reception condition standards. Finally, a meeting was held on 29 April 2008 with UNHCR and NGOs in view of addressing specific issues in relation to the treatment of persons with special needs.
Parties consulted expressed a general consensus to achieving further harmonisation of reception conditions in the second phase of the asylum legislation. Some Member States however underlined the need to retain a certain degree of flexibility regarding access to the labour market and material reception conditions, whereas others expressed a preference to address deficiencies regarding the treatment of vulnerable asylum seekers via practical cooperation measures rather than via a legislative intervention.
The Commission's proposal takes into account to a certain extent these concerns in particular regarding access to the labour market and the modalities established at national level to ensure adequate material reception conditions for asylum seekers. However, taking into consideration the serious gaps detected in relation to the identification of special needs and access to treatment, the Commission decided also to address this issue within the framework of the present proposal.
Contents
- Legal Elements of the Proposal
- Consultation of Interested Parties
- - Grounds for and objectives of the proposal
- - General context
- - Consistency with other policies and objectives of the Union
- - Summary of the proposed action
- In this respect the proposal addresses the following issues:
- 1. scope of the directive:
- 2. access to the labour market:
- 3. access to material reception conditions:
- 4. detention:
- 5. persons with special needs:
- 6. implementation and improvement of national systems:
- - Legal basis
- - Subsidiarity Principle
- - Proportionality Principle
- - Impact on fundamental rights
The main objective of this proposal is, as part of the second phase of the asylum legislation, to ensure higher standards of treatment for asylum seekers with regard to reception conditions that would guarantee a dignified standard of living, in line with international law. Further harmonisation of national rules on reception conditions is also required in order to limit the phenomenon of secondary movements of asylum seekers amongst Member States, to the degree that such movements are generated from diverge national reception polices.
The proposal extends the scope of the directive in order to include applicants for subsidiary protection. This modification is considered necessary with a view to ensure consistency with the current EU acquis, namely with the Qualification Directive that introduces the legal notion of subsidiary protection. Moreover in view of adequately clarifying the rationae materiae of the directive, the proposal stipulates that it is applicable to all types of asylum procedures and to all geographic areas and facilities hosting asylum seekers.
Access to employment is beneficial both for the asylum seeker and the hosting Member State. Facilitated access to employment for asylum seekers could prevent exclusion from the host society, and therefore facilitate integration. It would also promote self-sufficiency among asylum seekers. Mandatory unemployment on the other hand imposes costs on the State through the payment of additional social welfare payments. It should be noted in this respect that labour market restrictions could encourage illegal working.[11] This is particularly relevant for those Member States which create obstacles on access to the labour market and which grant very low welfare assistance to asylum seekers at the same time.
The proposal therefore aims to facilitate access to the labour market. In particular, two measures are envisaged. First and foremost, the proposal provides that asylum seekers will be able to access employment after a period of maximum 6 months after lodging an application for international protection; the Commission considers that on the basis of Member States' current practices i and taking into consideration stakeholders' contributions to the Green Paper this is an appropriate time period.
Secondly, the proposal stipulates that the imposition of national labour market conditions shall not unduly restrict access to employment for asylum seekers. The rationale behind this amendment is to better underline the objective of the current Article which is to ensure that asylum seekers are provided with fair opportunities to access employment in Member States.
With a view to guarantying that access to material reception conditions ensures a standard of living adequate for the health of the asylum seeker and capable of ensuring his/her subsistence, the proposal obliges Member States when granting financial support to asylum seekers to take into consideration the level of social assistance provided to nationals. Moreover, in order to ensure appropriate accommodation for specific categories of asylum seekers, the directive introduces an obligation for Member States when allocating housing facilities to take on board considerations of gender and age, and the situation of persons with special needs.
The provisions for reducing or withdrawing access to reception conditions, already envisaged under the current directive, are meant to ensure that the reception system is not abused. However, as the reduction or withdrawal of reception conditions can affect to a great extent the standard of living of applicants, the Commission considers it important to ensure that asylum seekers are never left destitute under such circumstances and that fundamental rights are respected. In this respect and also taking into consideration current case-law, the proposal limits the circumstances under which reception conditions could be fully withdrawn and ensures that asylum seekers will continue to benefit from access to necessary treatment of illness or mental disorders in relevant cases. The Commission equally considers that it is of outmost importance that decisions on these issues are subject to review before a national court.
Finally, the proposal limits the circumstances, currently prescribed under the directive, where Member States could exceptionally set up modalities for material reception conditions different from those provided under the Directive.
Taking into consideration the wide use of detention in the area of asylum by Member States and the developing case-law of the European Court of Human Rights (hereafter – the ECtHR) the Commission considers it necessary to address this issue in a holistic way in this directive with a view to ensure that detention is not arbitrary and that fundamental rights are respected in all cases. The proposal takes as its underlying principle that a person should not be held in detention for the sole reason that he/she is seeking international protection. This principle confirms the EU acquis on detention, in particular the Asylum Procedures Directive, and is in line with the Charter of Fundamental Rights and with international human rights instruments such as the European Convention for the Protection of Human Rights and Fundamental Freedoms and the UN Convention against Torture and other Cruel Inhuman or Degrading Treatment or Punishment.
The proposal ensures that detention could be allowed only in exceptional grounds prescribed under the Directive based on the Recommendation of the Committee of Ministers of the Council of Europe 'on measures of detention of asylum seekers' and UNHCR’s Guidelines on Applicable Criteria and Standards Relating to the Detention of Asylum Seekers of February 1999. Moreover it is foreseen that detention shall be in line with the principle of necessity and proportionality. It is furthermore foreseen that detention should be subject to an individual assessment of each case.
The proposal also guarantees that detained asylum seekers are treated in a humane and dignified manner with respect for their fundamental rights and in compliance with international and national law. Particular attention is given in this respect to cases where vulnerable asylum seekers are detained; with regard to children the proposal is in line with the 1989 UN Convention on the Rights of the Child. As unaccompanied minors are concerned, it is stipulated that they shall never be detained. Moreover, a number of legal and procedural safeguards are provided with a view to ensure that detention is legitimate.
The Commission has identified deficiencies in addressing special needs as being the most serious concern in the area of reception of asylum seekers. Identifying special needs not only has a bearing on access to appropriate treatment, but could also affect the quality of the decision-making process in relation to the asylum application, especially with regard to traumatised persons. In this respect the proposal ensures that national measures are put in place in order to immediately identify such needs.
Moreover, the proposal incorporates numerous safeguards in order to ensure that reception conditions are specifically designed to meet asylum seekers' special needs. These amendments reflect several aspects of reception conditions such as access to health care, housing facilities, and education of minors.
The current text of the Reception Conditions Directive contains several rules to ensure the complete implementation as well as the improvement of national systems. If the final aims of the new directive are to be achieved, it is important to ensure the continuity of such monitoring and to strengthen the Commission's role as the guardian of EU legislation. In this respect, at Community level, the reporting system already provided in the directive should be maintained. At national level it is important to guarantee that national mechanisms are established in order to ensure adequate monitoring and control of the national reception system. Moreover, the proposal extends the current reporting requirement imposed on Member States, in order to include those provisions in relation to which the Commission's evaluation report underlined a number of deficiencies regarding their implementation.
This proposal amends Directive 2003/9/EC and uses the same legal base as that act, namely point i (b) of the first subparagraph of Article 63 of the EC Treaty.
Article 1 of the Protocol on the position of the United Kingdom and Ireland, annexed to the Treaty on European Union and to the Treaty establishing the European Community, states that Ireland and the UK may ‘opt in’ to measures establishing a Common European Asylum System.
In accordance with Article 3 of the Protocol on the position of the United Kingdom and Ireland, annexed to the Treaty on European Union and to the Treaty establishing the European Community, the United Kingdom gave notice, by letter of 18 August 2001, of its wish to take part in the adoption and application of the current Directive.
In accordance with Article 1 of the said Protocol, Ireland decided not to participate in the adoption of the current Directive. Consequently, and without prejudice to Article 4 of the aforementioned Protocol, the provisions of the current Directive do not apply to Ireland.
The position of the above mentioned Member States with regard to the current directive do not affect their possible participation with regard to the new directive once it comes into force.
In accordance with Articles 1 and 2 of the Protocol on the position of Denmark, annexed to the Treaty on European Union and to the Treaty establishing the European Community, Denmark is not bound by the directive nor is subject to its application.
Title IV of the EC Treaty ('TEC') on visas, asylum, immigration and other policies related to free movement of persons confers certain powers on these matters on the European Community. These powers must be exercised in accordance with Article 5 TEC, i.e. if and in so far as the objectives of the proposed action cannot be sufficiently achieved by the Member States and can, therefore, by reason of the scale or effects of the proposed action, be better achieved by the Community.
The current legal base for Community action in the area of reception of asylum seekers is established in Article 63 i TEC. This provision states that the Council is to adopt “measures on asylum, in accordance with the Geneva Convention relating to the Status of Refugees of 28 July 1951 and the Protocol of 31 January 1967 relating to the status of refugees and other relevant treaties” in areas such as minimum standards on the reception of asylum seekers in Member States.
Due to the transnational nature of the problems related to asylum and refugee protection, the EU is well placed to propose solutions in the framework of the Common European Asylum System (CEAS) in particular with regard to issues concerning the reception of asylum seekers. Although an important level of harmonization was reached by the adoption of the directive in 2003 there is still room for EU action in view of ensuring higher and more harmonised standards of treatment in relation to the reception of asylum seekers.
The impact assessment on the amendment of the Reception Conditions Directive assessed each option to the problems identified so as to represent an ideal proportion between practical value and efforts needed and concluded that opting for EU action does not go beyond what is necessary to achieve the objective of solving those problems.
This proposal was made subject of an in-depth scrutiny to make sure that its provisions are in full compatibility with fundamental rights as general principles of Community law, as provided in the EU Charter of Fundamental Rights, as well as obligations stemming from international law. As a result, particular emphasis was put on the provisions dealing with detention and procedural safeguards, treatment of persons with special needs notably minors, unaccompanied minors and victims of torture, and access to material reception conditions.
Ensuring higher and more equal standards of reception will have an overall strong positive impact for asylum seekers from a fundamental rights point of view. In particular, the right to liberty and freedom of movement will be reinforced by underlining that a person shall not be detained for the sole reason that he/she has registered an application for international protection; similarly, the proposal also provides that detention should only be allowed in exceptional cases prescribed under the Directive and only if it is in line with the principles of necessity and proportionality.
The rights of minors will be better reflected in the text by ensuring that they cannot be detained unless it is in their best interest, whereas detention of unaccompanied minors is prohibited in all cases. Moreover, the specific situations of vulnerable groups will be more adequately addressed by ensuring that their needs are timely identified and access to appropriate treatment is available. Facilitating access to the labour market could assist asylum seekers in becoming more self-sufficient and will facilitate their integration to the hosting Member State. Furthermore, the principle of non-discrimination will be reinforced by the imposition of the obligation on Member States to ensure that asylum seekers are not unjustifiably treated in comparison to nationals concerning the level of material reception conditions to be provided under the Directive. Finally, the imposition of a reporting requirement on essential provisions of the Directive linked with fundamental rights principles will ensure better monitoring of their implementation at Community level. In this respect it should be underlined that Member States are obliged to implement and apply the provisions of this Directive in line with Fundamental Rights.
ê 2003/9/EC