Explanatory Memorandum to COM(2016)465 - Standards for the reception of applicants for international protection (recast) - Main contents
Please note
This page contains a limited version of this dossier in the EU Monitor.
| dossier | COM(2016)465 - Standards for the reception of applicants for international protection (recast). |
|---|---|
| source | COM(2016)465  |
| date | 13-07-2016 |
Context
and reasons for the proposal
The EU is working towards an integrated, sustainable and holistic EU migration policy based on solidarity and fair sharing of responsibilities and which can function effectively both in times of calm and crisis. Since the adoption of the European Agenda on Migration1, the European Commission has been working to implement measures to address both the immediate and the long-term challenges of managing migration flows effectively and comprehensively.
The Common European Asylum System is based on rules determining the Member State responsible for applicants for international protection (including an asylum fingerprint database), common standards for asylum procedures, reception conditions, the recognition and protection of beneficiaries of international protection. In addition, a European Asylum Support Office supports Member States in the implementation of the Common European Asylum System.
Notwithstanding the significant progress that has been made in the development of the Common European Asylum System, there are still notable differences between the Member States in the types of procedures used, the reception conditions provided to applicants, the recognition rates and the type of protection granted to beneficiaries of international protection. These divergences contribute to secondary movements and asylum shopping, create pull factors, and ultimately lead to an uneven distribution among the Member States of the responsibility to offer protection to those in need.
Recent large scale arrivals have shown that Europe needs an effective and efficient asylum system able to assure a fair and sustainable sharing of responsibility between Member States, to provide sufficient and decent reception conditions throughout the EU, to process quickly and effectively asylum claims lodged in the EU, and to ensure the quality of the decisions made so that those who are in need of international protection effectively obtain it. At the same time, the EU needs to address irregular and dangerous movements and put an end to the business model of smugglers. To this end asylum applications of those who are not entitled to international protection must on the one hand be dealt with quickly and these migrants must then be returned quickly. On the other hand, safe and legal ways to the EU for those from third countries who need protection need to be opened. This is also part of a wider partnership with priority countries of origin and transit.
On 6 April 2016, the Commission set out its priorities for a structural reform of the European asylum and migration framework in its Communication Towards a reform of the Common European Asylum System and enhancing legal avenues to Europe2, outlining the different steps to be taken towards a more humane, fair and efficient European asylum policy as well as a better managed legal migration policy.
1 COM(2015) 240 final.
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On 4 May 2016, the Commission presented a first set of proposals to reform the Common European Asylum System delivering on three priorities identified in its Communication: establishing a sustainable and fair Dublin system for determining the Member State responsible for examining asylum applications3, reinforcing the Eurodac system to better monitor secondary movements and facilitate the fight against irregular migration4 and establishing a genuine European Union Agency for Asylum to ensure the well-functioning of the
European asylum system5.
These proposals were the first building blocks to reform the structure of the Common European Asylum System.
With the second package, the Commission is completing the reform of the Common European Asylum System by adopting four additional proposals: a proposal replacing the Asylum Procedures Directive with a Regulation6, harmonising the current disparate procedural arrangements in all Member States and creating a genuine common procedure; a proposal replacing the Qualification Directive7 with a Regulation8, setting uniform standards for the recognition of persons in need of protection and the rights granted to beneficiaries of international protection as well as a proposal revising the Reception Conditions Directive9 to further harmonise reception conditions in the EU, increase applicants' integration prospects and decrease secondary movements. Finally, following-up on the commitment to enhance legal avenues to the EU as announced on 6 April 2016, the Commission is also proposing a structured Union resettlement framework, moving towards a more managed approach to international protection within the EU, ensuring orderly and safe pathways to the EU for persons in need of international protection, with the aim of progressively reducing the incentives for irregular arrivals10.
These proposals are an indispensable part of the comprehensive reform of the Common European Asylum System and are closely interlinked. With this second stage of legislative proposals reforming the asylum acquis, all the elements required to put in place a solid, coherent and integrated Common European Asylum System, based on common, harmonised rules that are both effective and protective, fully in line with the Geneva Convention, are now on the table.
The Common European Asylum System that we are further developing is both effective and protective and is designed to ensure full convergence between the national asylum systems, decreasing incentives for secondary movements, strenghtening mutual trust between Member States and leading overall to a well functioning Dublin system.
It guarantees that asylum seekers are treated, wherever they are in the EU, in an equal and appropriate manner. It provides for the tools needed to ensure quick identification of persons in genuine need of international protection and return of those who do not have protection needs. It is generous to the most vulnerable and strict towards potential abuse, while always
COM(2016)) 270 final. COM(2016) 272 final. COM(2016) 271 final. L OJ 180, 29.6.2013, p. 60. L OJ 337, 20.12.2011, p. 9. OJ C [...], [...], p. [...]. OJ C [...], [...], p. [...].
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respecting fundamental rights. The common system is finally cost-effective and flexible enough to adapt to the complex challenges Member States have in this area.
Objectives
of the present proposal
As part of this second set of asylum policy reforms, the Commission is proposing a recast of Directive 2013/33/EU of the European Parliament and of the Council of 26 June 2013 laying down standards for the reception of applicants for international protection11.
The Reception Conditions Directive provides for minimum harmonisation of standards for the reception of applicants for international protection in the EU. Reception conditions however continue to vary considerably between Member States both in terms of how the reception system is organised and in terms of the standards provided to applicants.
The migratory crisis has exposed the need to ensure greater consistency in reception conditions across the EU and the need for Member States to be better prepared to deal with disproportionate numbers of migrants. There are wide divergences in the level of reception conditions provided by the Member States. In some Member States, there have been persistent problems in ensuring adherence to the reception standards required for a dignified treatment of applicants, while in others the standards provided are more generous. This has contributed to secondary movements and has put pressure on certain Member States in particular.
In view of this, this proposal aims to:
(1) Further harmonise reception conditions in the EU. This will both ensure that the treatment of applicants is dignified across the EU, in accordance with fundamental rights and rights of the child, including in Member States where there have been persistent problems in ensuring such dignified treatment, and reduce reception-related incentives for applicants to move irregularly to and within the EU, in particular to Member States where reception conditions are generally of a high standard. It will also contribute to a fairer distribution of applicants between the Member States. This will in particular be done by requiring Member States to take into account operational standards and indicators on reception conditions developed at EU level and by requiring Member States to have contingency plans ready to ensure the adequate reception of applicants in cases where they are confronted with a disproportionate number of applicants.
(2) Reduce incentives for secondary movements. To ensure an orderly management of migration flows, facilitate the determination of the Member State responsible and to prevent secondary movements, it is essential that the applicants remain in the Member State which is responsible for them and do not abscond. This obligation on applicants is set out in the proposed reform of the Dublin Regulation. The introduction of more targeted restrictions to the applicants' freedom of movement and strict consequences when such restrictions are not complied with will contribute to more effective monitoring of the applicants' whereabouts. Further harmonisation of possibilities to assign a specific place of residence to applicants, to impose reporting obligations and to provide material reception conditions only in kind is also necessary to create a more predictable situation for applicants, to ensure that they are accounted for regardless of which Member State they are present in and to deter
them from absconding. This applies in particular in three situations namely where: the applicant did not make an application for international protection in the Member State of first irregular entry or legal entry; the applicant has absconded from the Member State in which he or she is required to be present, and the applicant has been sent back to the Member State where he or she is required to be present after having absconded to another Member State.
(3) Increase applicants self-reliance and possible integration prospects. Except for
those whose applications are likely to be rejected, applicants should, as quickly as possible, be allowed to work and earn their own money, even whilst their applications are being processed. T his helps to reduce their dependency and allows for better prospects for eventual integration of those who will ultimately be granted protection. The time-limit for access to the labour market should therefore be reduced from no later than nine months to no later than six months from the lodging of the application. This aligns the applicants access to the labour market with the duration of the examination procedure on the merits. Member States are also encouraged to grant access to the labour market no later than three months from the lodging of the application where the application is likely to be well-founded. Access to the labour market should be in full compliance with labour market standards, which should also help to avoid distortions in the labour market. Further limiting the current wide discrepancies between Member States rules on access to the labour market is also essential in order to reduce employment-related asylum-shopping and incentives for secondary movements.
• Consistency with existing policy provisions in the policy area
This proposal for a recast of the Reception Conditions Directive is fully consistent with the first proposals to reform the Common European Asylum System presented on 4 May 2016, and with the proposals for reforming the Asylum Procedures and Qualification Directives, which would include their transformation into Regulations, as well as with the proposal for a structured Union resettle m ent f ra m e work.
According to the Commission's proposal for a recast of the Dublin III Regulation, when an applicant is not in the Member State where he or she is required to be present, the applicant should not be entitled to the full material reception conditions provided for under this Directive. The Dublin proposal in this way impacts the application of the Reception Conditions Directive and corresponding changes to this Directive are necessary and have been proposed.
The Commission's proposal for a recast of the Dublin III Regulation also refers to th e fact that all applicants, wherever they are present, have the right to emergency health care. In practice, Member States typically consider that essential treatment of illnesses, including of serious mental disorders as granted under the Reception Conditions Directive, corresponds to the concept of emergency health care . In view of this, this proposal is fully consistent with the Commission's proposal f or a recast of the Dublin III Regulation.
Based on the work already started by the European Asylum Support Office (EASO), the European Union Agency for Asylum will monitor and assess Member States' asylum and reception systems.
The proposal for a recast of the Reception Conditions Directive will ensure that asylum applicants remain available throughout the asylum procedure to ensure a timely and effective assessment of their claim and will therefore contribute to the effective implementation of the proposed Asylum Procedures and Qualification Regulations.
• Consistency with other Union policies
This proposal is consistent with the comprehensive long-term policy on better migration management as set out by the Commission in the European Agenda on Migration12, which developed President Juncker's Political Guidelines into a set of coherent and mutually reinforcing initiatives based on four pillars. Those pillars consist of reducing incentives for irregular migration, securing the Unions external borders and saving lives, as well as ensuring a strong asylum policy and a new policy on legal migration.
This proposal, which further implements the European Agenda on Migration as regards the objective of strengthening the Union s asylum policy, should be seen as part of the broader policy at EU level towards building a robust and effective system for sustainable migration management for the future that is fair for host societies and EU citizens as well as for the third country nationals concerned and countries of origin and transit.
LEGAL BASIS, SUBSIDIARITY AND PROPORTIONALITY
• Legal basis
This proposal recasts the Reception Conditions Directive and should therefore be adopted on the same legal basis, namely Article 78, second paragraph, point (f) of the Treaty on the Functioning of the European Union (TFEU), in accordance with the ordinary legislative procedure.
• Variable geometry
In accordance with Protocol No 21 on the position of the United Kingdom and Ireland in respect of the Area of Freedom, Security and Justice, annexed to the Treaty on European Union (TEU) and to the TFEU, the United Kingdom and Ireland may decide to take part in the adoption and application of measures establishing a Common European Asylum System.
In this respect, the United Kingdom has given notice of its wish to take part in the adoption and application of Directive 2003/9/EC and of its decision n ot to participate in the adoption of Directive 2013/33/EU. Ireland has decided neither to participate in the adoption of Directive 2003/9/EC nor in the adoption of Directive 2013/33/EU. Consequently, the provisions of Directive 2003/9/EC apply to the United Kingdom, while the provisions of the current Directive do not apply to either the United Kingdom or Ireland.
The positions of the United Kingdom and Ireland with regard to the previous directives do not affect their possible participation in the adoption and application of the new directive. The participation of the United Kingdom and Ireland will be determined in the course of the negotiations and in accordance with Protocol No 21, referred to above.
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In accordance with Protocol No 22 on the position of Denmark, annexed to the TEU and to the TFEU, Directive 2003/9/EC and Directive 2013/33/EU are not binding on Denmark nor is Denmark subject to their application.
• Subsidiarity
Despite the achievement of an im portant level of harmonisation by the adoption of Directives 2003/9/EC and 2013/33/EU, reception conditions still vary considerably between Member States. Large differences in reception conditions between the Member States and a lack of operational standards for a dignified treatment of applicants contributes to re cepti on-re lated asylum shopping and secondary movements of applicants within the EU and puts pressure on certain Member States in particular. More equal reception standards set at an appropriate level across all Member States will contribute to a more dignified treatment and fairer distribution of applicants across the EU. Further EU action is therefore needed to ensure a sufficient level of harmonisation to meet the stated objectives.
• Proportionality
The proposed changes to the Reception Conditions Directive are limited and targeted to addressing the objectives of ensuring that the treatment of applicants is dignified across the EU, in accordance with fundamental rights and rights of the child, and reducing reception and integration-related incentives for migrants to move irregularly to and within the EU, while taking into account the significant differences in Member States social and economic conditions.
Changes to the Reception Conditions Directive are only proposed in areas where further harmonisation will have significant impacts, such as in relation to provisions dealing with material reception standards, measures to ensure that applicants remain available to the competent authorities and do not abscond as well as rights and obligations relevant to the effective integration of applicants into the Member States host societies.
The proposal clarifies that, in all cases where Member States decide to restrict the freedom of movement of an applicant, place him or her in detention or require the applicant to cover or contribute to the material reception conditions, the Member State needs to take into account the particular situation of the person concerned, including any special reception needs, and the principle of proportionality.
Choice
of the instrument
A recast of the Reception Conditions Directive together with an extended mandate for the European Union Agency for Asylum to promote a uniform implementation of reception standards in practice is considered sufficient in order to meet the objectives of further harmonising Member States' reception conditions and applicants' integration prospects and reducing reception-related incentives for migrants to move irregularly to and within the EU. Considering the current significant differences in Member States' social and economic conditions, it is not considered feasible or desirable to fully harmonise Member States' reception conditions.
RESULTS OF STAKEHOLDER CONSULTATIONS AND COLLECTION OF EXPERTISE
Stakeholder
consultations
With its Communication of 6 April 2016, towards a reform of the Common European Asylum System and enhancing legal avenues to Europe, the Commission launched a broad debate. Since its adoption, there have been exchanges of views on the initiatives proposed in the Communication both in the European Parliament (in the LIBE Committee on 21 April 2016) and in the Council. The Communication has also been the subject of extensive discussions among social partners, specialised NGOs, intergovernmental organisations and other stakeholders.
In May 2016, the Commission consulted the Member States and other interested parties (including NGOs and international organisations, such as the UNHCR) on its main ideas for the reform as set out in a discussion paper. In June 2016, the Commission also had an informal exchange of views with the European Parliament. All consulted parties had an opportunity to provide written comments. The main outcome of the targeted stakeholder consultation can be summarised as follows:
– Further harmonise reception conditions in the EU: Most Member States were in
favour of further harmonising reception conditions in the EU. Among the other parties consulted, some stakeholders, including some representatives of the European Parliament, were however wary that further harmonisation could lead to an unwelcome lowering of reception standards and pointed to the need to respect fundamental rights and international obligations. All stakeholders agreed that Member States need to be allowed to grant more favourable conditions to applicants than those provided for under the Reception Conditions Directive. One particular challenge that was identified was the ambiguity as to what dignified standards of living means in the Reception Conditions Directive. In this respect, the operational standards and indicators on reception conditions in the EU, which EASO has started to develop at the Commission's initiative, were widely supported, together with the need for further monitoring, enforcement and contingency planning.
– Reduce reception-related incentives to secondary movements: The Member
States were generally positive towards the idea of a more harmonised approach to measures, such as restrictions on the applicants' freedom of movement, for ensuring that applicants remain available to the authorities and do not abscond. While a number of Member States agreed that the provision of material reception conditions should be conditioned on stay in the Member State where the applicant is required to be present, Member States were more divided over whether material reception conditions should in some circumstances be provided only in kind. Other stakeholders, including some representatives of the European Parliament, questioned the utility of such measures and considered that incentives for applicants to stay would be a more effective way of ensuring the same objective (family reunification, access to the labour market etc.).
– Increase applicants' integration prospects: Most stakeholders, including Member
States and representatives of the European Parliament, agreed that it would be useful to revisit the Reception Conditions Directive's provision concerning the conditions for applicants' access to the labour market as a means to increase integration prospects for applicants. Some Member States had recent positive experience with
reducing time limits for access to the labour market. According to several stakeholders, harmonising and shortening the time limits for access to the labour market is important but the effects should not be overestimated as other hurdles to effective access are significant (including recognition of qualifications, in particular for applicants who lack documents).
EU benchmark for determining the level of financial support provided to applicants: Most stakeholders were hesitant towards introducing a common EU benchmark for determining the level of financial support provided to applicants. This possibility was nevertheless thoroughly assessed. It was concluded that it is not possible to introduce such a common benchmark, mainly because (a) most Member States do not provide material reception conditions through financial support only as they prefer to provide reception conditions in kind or via a combination of financial support and in kind benefits, and (b) the financial support currently provided to applicants is in most cases well below all the possible benchmarks or thresholds examined (at-risk-of-poverty threshold, severely materially deprived threshold, and minimum income threshold). Harmonising the support levels would therefore entail raising the level of support in many Member States, in some cases quite significantly, in particular in those Member States with already a comparably high level of support, and could in some cases result in more favourable treatment being given to applicants than to Member States' nationals facing destitution or who are otherwise economically disadvantaged.
• Collection and use of expertise
EASO has been tasked with developing operational standards and indicators on reception conditions. It is proposed that Member States should take these operational standards and indicators into account when putting in place relevant mechanisms to ensure appropriate guidance, monitoring and control of their reception conditions. For the purpose of developing the operational standards and indicators, EASO conducted in spring 2016 a reception conditions mapping exercise, where Member States provided detailed information on their approach to the provision of reception conditions. The resulting report, to which 26 Member States and Associated States provided input , has informed the development of this proposal. The relevant results of the report can be summarised as follows:
— Further harmonise reception conditions in the EU: The definition of material reception conditions varies considerably in the Member States, from a rather limited definition in some Member States to definitions that go well beyond the Reception Conditions Directive in others, including sanitary items. Most Member States provide a combination of different forms of material reception conditions, such as both in kind and in the form of financial allowances or vouchers. In some Member States, material reception conditions are only provided in kind. The modalities for the provision of material reception conditions vary depending on what is provided (housing, food, clothing etc.) or to whom (applicants with special reception needs and the stage of the asylum procedure).
— Reduce reception - related incentives to secondary movements: The majority of Member States do not restrict applicants movements to assigned areas but allow
Belgium, Bulgaria, Switzerland, Czech Republic, Ireland, Greece, Spain, France, Croatia, Italy, Cyprus, Latvia, Lithuania, Luxembourg, Hungary, Malta, Netherlands, Norway, Austria, Poland, Portugal,
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them to move freely within their territory. A number of Member States nevertheless assign a particular place of residence to applicants, typically in order to organise their reception system. They usually take into account the population, the social and economic situation, the capacity of the reception centres or the needs of individual applicants. Most Member States make the provision of material reception conditions subject to the applicants residence in a specific place, usually by limiting the provision of material reception conditions to reception centres. Member States also frequently use reporting obligations to monitor the applicants whereabouts. Such reporting obligations are used both when the applicants reside in a designated reception centre and when they have private accommodation. The practices and reasons for reducing or withdrawing material reception conditions also vary considerably between Member States. One of the most common reasons for reducing or withdrawing reception conditions is that the applicant has abandoned his or her place of residence.
Increase applicants' integration prospects: Almost all Member States give applicants access to the labour market during the asylum procedure. However, the time frame after which access to employment is granted varies considerably from one Member State to another (from within one month in some Member States to after nine months in others). The majority of Member States do not apply any specific restrictions with regard to the applicants access to the labour market. Only a few Member States apply a labour market test.
In addition, since the adoption of the Reception Conditions Directive in 2013, the Commission has organised a series of Contact Committee meetings to discuss with Member States experts challenges they face with regard to the transposition and implementation of the Directive. The conclusions reached during the Contact Committees have also informed the current proposal .
• Rights
This proposal was made subject to an in-depth scrutiny to make sure that its provisions are in full compatibility with fundamental rights and general principles of Union law, as provided for in the Charter of Fundamental Rights of the European Union, as well as resulting from obligations stemming from international law.
The proposed changes to the Reception Conditions Directive underline the obligation for Member States to take into account operational standards and indicators for reception conditions developed at the EU level when monitoring and controlling their reception systems. It also clarifies that applicants are in all circumstances entitled to health care under the Reception Conditions Directive and to a dignified standard of living.
The proposal ensures that reception conditions are adapted to the specific situation of minors, whether unaccompanied or within families, with due regard to their security, physical and emotional care and are provided in a manner that encourages their general development. The proposal also takes into account Member States obligations under the Council of Europe Convention on preventing and combating violence against women and domestic violence
(Istanbul Convention)14.
Contents
- In view of providing a suitable level of protection to women who have been subject to gender-based
- conclusion of the Istanbul Convention, a gender-sensitive approach should be adopted when
- 1. Further harmonisation of reception conditions in the EU
- 3. Increasing integration prospects for applicants in the EU - access to the labour
- 16 17
In view of providing a suitable level of protection to women who have been subject to gender-based
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The principle of non-discrimination is reinforced by obliging Member States to treat applicants who have been granted access to the labour market in the same way as their nationals with regard to working conditions, freedom of association and affiliation, education and vocational training, the recognition of professional qualifications and social security.
The proposal underlines the need for Member States, when assessing the resources of an applicant, when requiring an applicant to cover or contribute to the cost of the material reception conditions or when asking an applicant for a refund, to observe the principle of proportionality, to take into account the individual behaviour and the particular circumstances of the applicant and the need to respect his or her dignity or personal integrity, including the appl icant s special reception needs.
All decisions restricting an applicants freedom of movement need to be taken objectively and impartially, based on the individual behaviour and the particular circumstances of the person concerned, with due regard to the principle of proportionality. The applicant has to be immediately informed in writing, in a language which he or she understands or is reasonably supposed to understand, of the adoption of such a decision, of the reasons for the decision, and of the procedures for challenging the decision.
Detention p ursua nt to th e Reception Conditions Directive continues to be justified only when it proves necessary and on the basis of an individual assessment of each case and if other less coercive alternative measures cannot be applied effectively. All the guarantees already provided for in the current Directive regarding detention remain unchanged. Special care must be taken to ensure that the length of any detention is proportionate and that the detention is terminated as soon as the applicable ground for detention under the Directive is no longer present. The proposal is also fully compatible with Article 6 of the EU Charter of Fundamental Rights, read in the light of Article 5 of the European Convention on Human Rights and re le v ant jur isprudence of the Court of Justice of the European Union and the European Court of Human Rights. In application of Article 37 of the United Nations Convention on the Rights of the Child, as a rule, minors should not be detained.
BUDGETARY IMPLICATIONS
This proposal does not impose any financial or administrative burden on the Union. Therefore it has no impact on the Union budget.
OTHERELEMENTS
• Implementation plans and monitoring, evaluation and reporting arrangements
The Commission shall report on the application of this Directi ve to th e European Parliament and to the Council within three years from its entry into force and every five years after that and propose any amendments that are necessary. The Member States shall provide the Commission with the necessary information for fulfilling its reporting obligation.
In accordance with the Commission's proposal for a Regulation on the European Union Agency for Asylum, the Agency will also monitor and assess Member States' asylum and reception systems.
• Detailed explanation of the specific provisions of the proposal
Explanations are only provided for the provisions which are changed by this proposal.
Scope: The Reception Conditions Directive continues, as a general rule, to apply to all third-country nationals and stateless persons who make an application for international protection on the territory of any of the Member States, as long as they are allowed to remain on the territory as applicants and as soon as the application is made.
An exception is introduced for cases where an applicant is irregularly present in another Member State than the one in which he or she is required to be present. In this situation, he or she is not entitled to material reception conditions, schooling and education of minors as well as employment and vocational training. The proposal clarifies that applicants will however always be entitled to health care and to a dignified standard of living, in accordance with fundamental rights, to cover the applicants subsistence and basic needs both in terms of physical safety, dignity and interpersonal relationships (Article 17a). However, in order to ensure respect for the fundamental rights of the child, Member States should provide minors with access to suitable educational activities pending the transfer to the Member State responsible.
— The proposal makes it clear that the right to a dignified treatment applies also in cases where a Member State, in duly justified cases, is exceptionally applying different standards of material reception conditions from the one required by the Reception Conditions Directive. The proposal also requires the Member States to inform the Commission and the European Union Agency for Asylum when resorting to such exceptional measures and when such measures have ceased to exist (Article
17(9)).
— The definition of family members is extended by including family relations which were formed after leaving the country of origin but before arrival on the territory of the Member State (Article 2(3)). This reflects the reality of migration today where applicants often stay for long periods of time outside their country of origin before reaching the EU, such as in refugee camps. The extension is expected to reduce the risk of irregular movements or absconding for persons covered by the extended rules.
— The proposal requires Member States to take into account operational standards and indicators on reception conditions currently being developed by EASO, when monitoring and controlling their reception systems (Article 27). The European Union
Agency for Asylum will be assisted by the Member State Network of Reception Authorities when implementing its tasks under this proposal, including the development of templates, practical tools, indicators and guidance.
— The proposal obliges Member States to draw up, and regularly update, contingency plans setting out the measures foreseen to be taken to ensure adequate reception of applicants in cases where the Member State is confronted with a disproportionate number of applicants (Article 28). The proposal also requires the Member States to inform the Commission and the European Union Agency for Asylum whe never their
contingency plan is activated. The monitoring and assessment of the contingency plans should take place in accordance with the procedure for monitoring and assessing Member States asylum and reception systems foreseen to be implemented by the European Union Agency for Asylum.
— The proposal clarifies that persons with special reception needs are persons who are in need of special guarantees in order to benefit from the rights and comply with the obligations provided for in the Reception Conditions Directive, regardless of whether these persons are considered vulnerable (Article 2(13)). The proposal also includes more detailed rules for assessing, determining, documenting and addressing applicants special reception needs as soon as possible and th roughout th e reception period. This includes the need for personnel of the relevant authorities to be adequately and continuously trained, and an obligation to refer certai n applicants to a doctor or psychologists for further assessment. It has been clarified that the assessment may be integrated into existing national procedures or into the assessment undertaken to identify applicants with special procedural needs (Article 21).
— The proposal introduces stricter time limits, within five working days from the moment the application was made, for the Member States to assign a guardian to represent and assist an unaccompanied minor. It is also proposed that the number of unaccompanied minors that guardians may be in charge of should not render them unable to perform their tasks. Member States should monitor that their guardians adequately perform their tasks and should review complaints lodged by unaccompanied minors against their guardian. The guardians appointed under the proposed Asylum Procedures Regulation may perform the task of the guardians under this proposal (Article 23) .
2. Reducing reception-re lated incentives for secondary movements within the EU
— The proposal requires Member States to inform applicants, using a com mon template, as soon as possible and at the latest when they lodge their application, of any benefits and obligations, which applicants must comply with in relation to reception conditions, including the circumstances under which the granting of material reception conditions may be restricted (Article 5) .
— The proposal does not change the fact that applicants may, as a general rule, move freely within the territory of the Member State or within an area assigned to them by the Member State (Article 7(1)).
— However, for reasons of public interest or public order, for the swift processing and effective monitoring of his or her application for international protection, for the swift processing and effective monitoring of his or her procedure for determining the Member State responsible in accordance with the Dublin Regulation or in order to effectively prevent the applicant from absconding, the proposal requires Member States, where necessary, to assign applicants a residence in a specific place, such as an accommodation centre, a private house, flat, hotel or other premises adapted for housing applicants. Such a decision may be necessary in particular in cases where the applicant has not complied with his or her obligations, as follows:
• The applicant did not make an application for international protection in the
Member State of first irregular entry or legal entry. Applicants do not have the right to choose the Member State of application. An applicant must apply for international protection in the Member State of first irregular entry or in the
Member State of legal entry. Applicants who have not complied with this obligation are, following a determination of the Member State responsible under the Dublin Regulation, less likely to be allowed to stay in the Member State where the application was made, which is supposedly the Member State of the applicants personal choice, and are consequently probably more likely to abscond.
• The applicant has absconded from the Member State in which he or she is required to be present. The applicant is required to be present in the Member State where the application was made or in the Member State to which he or she was transferred in accordance with the Dublin Regulation. In case an applicant has absconded from this Member State and, without authorisation, travelled to another Member State, it is vital, for the purpose of ensuring a well-functioning Common European Asylum System that the applicant is swiftly returned to the correct Member State. Until such a transfer has taken place, there is a risk that the applicant wil abscond and his or her whereabouts should therefore be closely monitored.
• The applicant has been sent back to the Member State where he or she is required to be present after having absconded to another Member State. The fact that an applicant has previously absconded to another Member State is an important factor to consider when assessing whether there is a continuing risk that the applicant may abscond. To ensure that the applicant does not abscond again and remains available to the competent authorities, his or her whereabouts shoul d be closely monitored.
In case the applicant is entitled to material reception conditions, such material reception conditions should also be provided subject to the applicant residing in this specific place (Article 7(2)).
The proposal also requires Member States to oblige, where necessary, any applicant to regularly report to the authorities if there are reasons for considering that there is a risk that the applicant may abscond (Article 7 i ).
In view of the serious consequences for applicants who have absconded or for whom it has been assessed that there is a risk that he or she may abscond, the proposal defines absconding as encompassing both a deliberate action to avoid the applicable asylum procedures and the factual circumstance of not remaining available to the relevant authorities, including by leaving the territory where the applicant is required to be present (Article 2(10)). A risk of absconding is also defined as the existence of reasons in an individual case, which are based on objective criteria defined by national law, to believe that an applicant may abscond, in line with the definition in the Dublin III Regulation15 (Article 2(11)).
It has been explicitly stated that all decisions restricting an applicants freedom of movement need to be based on the particular situation of the person concerned, taking into account any special reception needs of applicants and the principle of proportionality. It has also been clarified that applicants must be duly informed of such decisions and of the consequences of non-compliance (Article 7(7)-(8)).
It is clarified that Member States should only provide applicants with a travel document when serious humanitarian reasons arise. It has been added that travel documents may also be issued in case of other imperative reasons, such as, for
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example, when applicants have been granted access to the labour market and are required to perform essential travel for work purposes. Travel documents should not be issued outside of these exceptional circumstances. The validity of travel documents also needs to be limited to the purpose and duration needed for the reason they are issued (Article 6). The requirement for Member States to provide applicants with a document stating his or her identity has been included in Article 29 of the proposal for an Asylum Procedures Regulation.
The definition of material reception conditions is extended by including non-food items, which reflects the material reception conditions already provided in many Member States and underlines the importance of such non-food items, such as sanitary items (Article 2(7)).
The proposal clarifies that accommodation, food, clothing and other essential nonfood items may not be reduced or withdrawn. Only daily allowances may, in certain circumstances, be reduced or, in exceptional and duly justified cases, be withdrawn. In case accommodation, food, clothing and other essential non-food items are provided in the form of financial allowances, such allowances may in certain circumstances be replaced by reception conditions provided in kind (Article 19(1)).
Four new circumstances for scaling back or altering the form of material reception conditions have been added. Material reception conditions may be scaled back or altered where the applicant has: seriously breached the rules of the accommodation centre or behaved in a seriously violent way; not complied with the obligation to apply for international protection in the Member State of first irregular entry or of legal entry; been sent back after having absconded to another Member State; or failed to attend compulsory integration measures (Article 19(1)).
In order to tackle secondary movements and absconding of applicants, an additional detention ground has been added. In case an applicant has been assigned a specific place of residence but has not complied with this obligation, and where there is a continued risk that the applicant may abscond, the applicant may be detained in order to ensure the fulfilment of the obligation to reside in a specific place (Article 8(3)(c)). As in the case of detention pursuant to any other ground under the Reception Conditions Directive, detention is only justified when it proves necessary and on the basis of an individual assessment of each case and if other less coercive alternative measures cannot be applied effectively. All the guarantees already provided for in the current Reception Conditions Directive regarding detention remain unchanged. Special care must also be taken to ensure that the length of the detention is proportionate and that it ends as soon as there are no longer reasons for believing that the applicant will not fulfil the obligation put on him or her. The applicant must also have been made aware of the obligation in question and the consequences of non-compliance.
market
– The proposal reduces the time-limit for access to the labour market from no later
than nine months to no later than six months from the date when the application for international protection was lodged, where an administrative decision on the application has not been taken in accordance with the proposed Asylum Procedures
Regulation and the delay cannot be attributed to the applicant (Article 15(1)(1)). This aligns applicants' access to the labour market with the normal duration of the examination procedure on the merits in accordance with the proposed Asylum Procedures Regulation. As soon as an applicant is granted access to the labour market this should be specifically stated on his or her identity document (Article 15(5)).
Earlier access to the labour market contributes to increased integration prospects for applicants and reduces reception costs, in particular in cases where international protection is likely to be granted. The proposal therefore allows Member States to grant access earlier. Member States are encouraged to grant access no later than three months from the lodging of the application where the application is likely to be well-founded, including when its examination has for this reason been prioritised.
On the other hand, the proposal excludes from access to the labour market applicants who are not expected to be recognised beneficiaries of international protection due to the fact that their applications are likely to be unfounded (Article 15(1)(2)). An applicant whose application is being examined on the merits in an accelerated procedure because the applicant has withheld relevant facts, or provided clearly false representations, information or documentation, has made an application merely to delay or frustrate a return decision, is from a safe country of origin or, for serious reasons, is considered to be a danger to national security or public order in accordance with the proposed Asylum Procedures Regulation, falls into this category.
The proposal clarifies that access to the labour market, once granted, needs to be effective. If conditions effectively hinder an applicant from seeking employment, the access should not be considered effective. Labour market tests used to give priority to nationals or to other Union citizens or to third-country nationals legally resident in the Member State concerned should not hinder effective access for applicants to the labour market (Article 15).
It is proposed that, once granted access to the labour market, applicants should be entitled to a common set of rights based on equal treatment with nationals of the Member State similarly as other third-country nationals who are working in the Union (for example under the Single Permit Directive16 or the Seasonal Workers Directive17). It has been specifically stated that the right to equal treatment does not give rise to a right to reside in cases where the applicants' application for international protection has been rejected (Article 15(3)).
Working conditions referred to in the proposal cover at least pay and dismissal, health and safety requirements at the workplace, working time and leave, taking into account collective agreements in force. The proposal also grants applicants equal treatment as regards freedom of association and affiliation, education and vocational training, the recognition of professional qualifications and social security (Article 15(3)).
The proposal makes it possible to limit equal treatment concerning education and vocational training to such education and training directly linked to a specific employment activity. Branches of social security are defined in Regulation (EC) No 883/2004 of the European Parliament and of the Council of 29 April 2004 on the
OJ L 343, 23.12.2011, p. 1.
systems.18 The
coordination of social security systems. The proposal also makes it possible to limit applicants' equal treatment with regard to family benefits and unemployment benefits. Unemployed applicants are entitled to the reception conditions provided for in this Directive (Article 15(3)).
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*2013/33/EU