Explanatory Memorandum to 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) - Main contents
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| dossier | COM(2011)320 - Standards for the reception of asylum seekers (Recast) Amended proposal for a DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF ... |
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| source | COM(2011)320  |
| date | 01-06-2011 |
As announced in the Policy Plan on Asylum i, on 9 December 2008 the Commission presented a proposal amending 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 proposal was prepared on the basis of the evaluation of the application of the current Directive in Member States and after a wide consultation process with Member States, UNHCR, NGOs and other relevant stakeholders.
On 7 May 2009 the European Parliament adopted its position i on the Commission proposal which approves the great majority of the proposed amendments. The proposal was discussed in the Council mainly under the Czech and the Swedish Presidencies but negotiations have been difficult and no position was reached on the text in the Council.
By presenting the modified proposal, the Commission intends to use its right of initiative to boost up the work towards achieving a true Common European Asylum System (CEAS). The Commission is convinced that such a system, being both fair and efficient, will benefit Member States and refugees alike.
The Commission has a political responsibility to facilitate negotiations and to provide real opportunities so that the Union respects its commitment set out in the Stockholm Programme to achieve the CEAS by 2012. The adoption of the new Long Term Residence Directive which now covers beneficiaries of international protection gave a strong impetus towards this direction.
The Commission also adopts at the same time its modified proposal for the Asylum Procedures Directive.
Reception conditions should ensure a dignified standard of living and be comparable throughout the Union, irrespective of where an asylum application has been made. To achieve these objectives, the Commission has continued to gather knowledge on how to consolidate the best national practices and how to make them easy to implement across the EU.
The modified proposal brings together the knowledge and experience built up during the negotiations and in consultations with other stakeholders such as UNHCR and NGOs, into a simplified and more coherent reception system in line with fundamental rights.
In particular, it introduces clearer concepts and more simplified rules and grants Member States more flexibility in integrating them into their national legal systems. It also better enables Member States to address possible abuses of their reception systems and it attends to their concerns on the financial and administrative implications of some of the proposed measures. At the same time, the modified proposal maintains high standards of treatment in line with fundamental rights. This is particularly the case in relation to detention; severe restrictions on the right to free movement shall only be applied when necessary and proportionate and should be accompanied by necessary legal guarantees. The particular situation of vulnerable persons must always be a primary concern. Reception standards should also be further harmonised to address secondary movements to the extent that they are a relevant cause of this phenomenon.
The modified proposal should be viewed together with the modified proposal on the Asylum Procedures Directive. That proposal, inter alia, aims to improve the efficiency and quality of national asylum systems which should reduce Member States' reception cost by enabling them to deliver decisions quicker.
The modified proposal also relates to the Regulation establishing the European Asylum Support Office (EASO) adopted on 19 May 2010, thus after the adoption of the initial proposal on the Reception Conditions Directive. The EASO could provide practical support and expertise to Member States for implementing the provisions of the Directive and for identifying best practices. It could also support those Member States that face particular pressures in their reception systems by identifying the most cost-effective ways to implement the envisaged measures through the pooling of good practices and the structured exchange of high-level practices. Indeed, for the first time since its adoption, the EASO will provide this kind of assistance to Greece with the deployment of asylum support teams to assist in addressing urgent needs in their asylum procedure.
The 2008 proposal and the present modified proposal are part of a legislative package in the area of asylum aiming to establish a CEAS by 2012.
In particular, in 2008, together with the proposal amending the Reception Conditions Directive, the Commission also adopted proposals amending the Dublin and EURODAC Regulations. In 2009, the Commission adopted proposals amending the Asylum Procedures and the Qualification Directives. In 2010, the Regulation establishing European Asylum Support Office was adopted which aims to increase operational cooperation between Member States and facilitate the implementation of common rules in the area of asylum.
This legislative package is in line with the European Pact on Immigration and Asylum adopted on 16 October 2008 which reconfirmed the objectives of The Hague Programme, and called on the Commission to present proposals for establishing, in 2012 at the latest, a single asylum procedure comprising common guarantees. In the same framework, the Stockholm Programme adopted by the European Council in its meeting of 10-11 December 2009 underlined the need establish 'a common area of protection and solidarity based on a common asylum procedure and a uniform status for those granted international protection', based on 'high protection standards' and 'fair and effective procedures', by 2012. More specifically, the Stockholm Programme provides that individuals, regardless of the Member State in which their application for asylum is made, are offered an equivalent level of treatment as regards reception conditions .
An Impact Assessment i was conducted as part of the preparation of the previous proposal. The modified proposal is based on the same principles as the previous proposal. In addition it aims to simplify and clarify certain provisions to make their implementation easier. For this reason, the Impact Assessment conducted for the previous proposal continues to apply to the modified proposal.
This proposal is fully in line with the Tampere European Council Conclusions of 1999, The Hague Programme of 2004, the 2008 European Pact on Immigration and Asylum and the Stockholm Programme of 2009 in relation to the establishment of the CEAS.
The proposal is also consistent with the objectives of the Europe 2020 strategy since it ensures appropriate access to employment for asylum seekers. Asylum seekers who make an economic contribution cease to require additional support from national welfare systems, and thus make a positive, even if often temporary, contribution to growth.
As part of the preparatory work for the previous proposal, the Commission presented a Green Paper, conducted several experts' meetings, including with the UNHCR and civil society partners, commissioned an external study, and collected data in response to several detailed questionnaires.
The Commission also adopted an Evaluation Report on the application of the Directive which identified a number of deficiencies in Member States' laws and policies.
Following the adoption of the initial proposal in December 2008 discussions were conducted at the technical level in the Council, mainly under the Czech and Swedish Presidencies. The discussions revealed that many Member States opposed specific provisions of the proposal because of the particularities of their asylum and/or legal systems. In this respect it was feared that adaptations would require substantial financial efforts and administrative readjustments and would impede the effectiveness of the asylum procedure.
During the discussions, Member States had the opportunity to explain the potential implementation problems that they could encounter regarding specific provisions. It became apparent that, in order to avoid incorporating multiple exceptions for specific Member States and thus jeopardising the overall coherence of the proposed system, there was an opportunity for the Commission to revisit the proposal to propose a more comprehensive solution to the issues voiced, while safeguarding the added value of the text. Clarifying and simplifying the proposed provisions to make their implementation easier for Member States should give a renewed impetus to the discussions. The Commission therefore announced in the Justice and Home Affairs Council of 8 November 2010 that it would present a modified proposal for this Directive as well as for the Asylum Procedures Directive before the start of the 2011 Polish Council Presidency.
The proposed amendments included in the position of the European Parliament, adopted on 7 May 2009, are to a large extent taken on board in the modified proposal. The modified proposal also takes due regard to the opinion of the European Economic and Social Committee i and the Committee of the Regions i and to the results of consultations with other stakeholders such as UNHCR and NGOs working in the area of fundamental rights.
As part of the preparatory work for this modified proposal, the Commission conducted a series of bilateral technical consultation meetings with stakeholders including national administrations in January–April 2010, where constraints and reservation on the Commission's initial proposal were explained in detail.
The modified proposal also takes into account the discussions in the framework of the Ministerial Conference on the quality and efficiency in the asylum process, organised by the Belgian Presidency on 13-14 September 2010. The conference inter alia focused on the issue of addressing the needs of vulnerable asylum applicants.
Contents
- LEGAL ELEMENTS OF THE PROPOSAL
- 1.1. Grounds for and objectives of the proposal
- 1.2. General context
- 1.3. Consistency with other policies and objectives of the Union
- 2. CONSULTATION OF INTERESTED PARTIES
- 3.1. Summary of the proposed action
- 3.1.1. Making implementation easier for Member States
- 3.1.2. Clear and strict rules on detention
- 3.1.3. Ensuring dignified standards of living
- 3.1.4. Enhancing self-sufficiency of asylum seekers
- 3.2. Legal basis
- 3.3. Territorial application
- 3.4. Subsidiarity Principle
- 3.5. Proportionality Principle
- 3.6. Impact on fundamental rights
The main objective of this modified proposal is to further clarify and provide more flexibility to the proposed reception standards so that they can be easier built into the national legal systems. At the same time it maintains the key elements of the 2008 proposal, namely ensuring adequate and comparable reception conditions throughout the EU. It also continues to guarantee full respect of fundamental rights as it is informed by developing case law of the Court of Justice of the European Union and the European Court of Human Rights. This is especially the case as regards the right to freedom of movement and respect of dignity.
Finally, the proposal enhances the consistency within the CEAS legislative package, in particular with the modified proposal on the Asylum Procedures Directive. Where necessary, it also includes amendments resulting from the negotiations on the Qualification Directive and the Dublin Regulation to ensure coherence in respect of horizontal issues.
The modified proposal mainly addresses the following issues:
The modified proposal grants Member States more latitude in the implementation of some of the proposed measures in comparison to the 2008 proposal, which addresses concerns on potentially high financial implications and administrative constraints and costs. This is achieved by proposing better defined legal notions, more simplified reception standards and devices, and more adaptable rules that could be more easily built into national practices.
These amendments concern in particular, guarantees for detained asylum seekers, reception conditions in detention facilities, deadlines for access to the labour market, level of health care provided for persons with special reception needs and identification mechanisms for such needs, access to material support and the reporting obligations aimed to ensure better monitoring of the Directive's key provisions.
The modified proposal also better ensures that Member States have the tools to address cases where reception rules are abused and/or become pull factors . In particular, the modified proposal allows more cases of withdrawal of material support, provided that necessary guarantees are applied and that the situation of particularly vulnerable persons is respected.
It is necessary to establish strict and exhaustive EU rules to ensure that detention is not arbitrary and that fundamental rights are respected in all cases. The Commission is concerned about the wide use of detention of asylum seekers while the EU asylum acquis is silent on this issue. The modified proposal therefore retains the general approach of the 2008 proposal on the issue of detention. In particular, detention may only occur under prescribed grounds and only if it is in line with the principles of proportionality and necessity, after an individual examination of each case. Necessary guarantees shall be available such as access to an effective remedy and free legal assistance where necessary. Reception conditions in detention must also respect human dignity. The proposed amendments are fully in line with the EU Charter of Fundamental Rights and recent case law of the ECtHR in its interpretation of Article 3 of the Convention.
At the same time more flexibility for some of the proposed detention rules and clarification of different notions has been introduced in order to facilitate their implementation, and to accommodate certain particularities of Member States' different legal systems (e.g. concerning access to free legal assistance and the possibility of the administrative authorities to issue a detention order ). The modified proposal also introduces more adaptable conditions of detention in relation geographical areas where it is practically difficult to always ensure the full set of guarantees proposed, namely border posts and transit zones. Several amendments were also introduced, in line with EU rules on detention applicable for third country nationals subject to a return decision to ensure, where appropriate, a more consistent approach on detention rules of third country nationals.
Discussions in the Council revealed that in certain circumstances it is in the best interests of unaccompanied minors to be kept in detention facilities, in particular to prevent abductions which reportedly do occur in open centres. In this respect, the modified proposal allows the detention of unaccompanied minors, only if it is established that it is in their best interests, as defined in the proposed Directive, and that alternative non-detention measures will not be effective. Moreover it has to be ensured through an individual examination of the situation that detention will not harm their health and well-being. Moreover, detention may only be applied if the necessary reception conditions can be offered in the specific detention facility (access to leisure activities, including in open air etc.). This proposed provision is in line with the ECtHR case law.
- Addressing special reception needs has been identified as one of the areas where current national standards are very problematic. Identifying special reception needs not only has a bearing on access to appropriate treatment, but could also affect the quality of the decision-making process. The modified proposal aims to ensure that national measures are put in place for the swift identification of the special reception needs of vulnerable persons and the continuous support and monitoring of individual cases. Particular attention is placed on the special reception needs of particularly vulnerable groups such as minors and victims of torture. At the same time the modified proposal introduces a simplified format of this identification process and a clearer link between vulnerable persons and persons with special reception needs.
The proposal does not include reference to equal treatment with nationals concerning access to health care, taking note of the position of the European Parliament and strong reservations in the Council.
- The evaluation of the implementation of the current Directive noted deficiencies in relation to the level of material support Member States provide to asylum applicants. Although the current Directive stipulates the obligation of ensuring adequate standards of treatment, it has been difficult in practice to define the required level of support. It is therefore necessary to introduce points of reference that could better 'quantify' this obligation and can also be effectively applied by national administrations.
During Council negotiations and recent consultations with Member States it became clear that relevant points of reference are actually envisaged under national law or practices in this respect, although they are quite divergent. Taking note of this fact, the modified proposal allows flexibility and does not aim to establish a single EU point of reference but allows the applications of different national benchmarks in this respect provided that they are measurable and can facilitate the monitoring of the level of support provided to applicants.
Access to employment could prevent exclusion from the host society and 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 and could encourage illegal working i. In this respect, facilitating access to employment is beneficial both for asylum applicants and the host Member State.
A higher degree of flexibility is allowed by the modified proposal concerning access to the labour market, in line with the provisions on the duration of the examination of an asylum application set out in the Asylum Procedures Directive modified proposal.
The modified proposal is based on Article 78(2)(f) of the Treaty on the Functioning of the European Union (TFEU), which calls for the establishment of 'standards' for the reception of asylum seekers.
The proposed Directive will be addressed to the Member States. Application of the Directive to the United Kingdom and Ireland will be determined in accordance with the provisions of Protocol No 21 annexed to the TFEU.
In accordance with Articles 1 and 2 of Protocol No 22 on the position of Denmark, annexed to the TFEU, Denmark is not bound by the Directive nor is subject to its application.
Title V of the TFEU on the Area of Freedom, Security and Justice confers certain powers on these matters to the European Union. These powers must be exercised in accordance with Article 5 of the Treaty on European Union, 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 Union.
The current legal base for Union action is established in Article 78 TFEU. This provision states that the Union is to “develop a common policy on asylum, subsidiary protection and temporary protection with a view to offering appropriate status to any third-country national requiring international protection and ensuring compliance with the principle of non-refoulement. This policy must be 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”. Article 78(2)(f) states that the European Parliament and the Council acting in accordance with the ordinary procedure shall adopt measures for a common European asylum system comprising 'standards concerning the conditions for the reception of applicants for asylum or subsidiary protection'.
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 CEAS, in particular concerning standards for reception applicable throughout the Union. Although an important level of harmonization was reached by the adoption of the directive in 2003, further EU action is necessary in order to attain higher and more harmonised standards on reception conditions.
The impact assessment on the amendment of the Reception Conditions Directive, conducted as part of the preparatory work for the previous proposal, assessed each option with regard 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. The present modified proposal retains the guiding principles of the previous proposal, while introducing additional flexibility for Member States, thus further contributing to the respect of the principle of proportionality.
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 Union law, as provided in the EU Charter of Fundamental Rights ("the Charter"), 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 reception 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 provided in Article 6 of the Charter 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 with regard both to the manner and to the purpose of such detention. Access to an effective remedy is also ensured, according to Article 47 of the Charter.
The rights of minors will be better reflected in the text by including a relevant definition, clarifying the principle of the child's best interests in line with Article 24 of the Charter, and restricting possibilities of detention. 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 proposal will reinforce the principle of non-discrimination as provided in Article 21 of the Charter by ensuring that asylum seekers are not unjustifiably treated less favourably in comparison to nationals. 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 EU 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 embodied in the Charter.
ê 2003/9/EC