3 Standards for the reception of asylum
seekers
| (30254)
16913/08
COM(08) 815
+ ADD 1
+ ADDs 2 and 3
| Draft Directive laying down minimum standards for the reception of asylum seekers
Annex to the draft Directive: detailed explanation of the proposal
Commission staff working document: impact assessment and summary of assessment
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| Legal base | Article 63(1)(b) EC; co-decision; QMV
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| Document originated | 3 December 2008
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| Deposited in Parliament | 10 December 2008
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| Department | Home Office |
| Basis of consideration | EM of 23 December 2008
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| Previous Committee Report | None
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| To be discussed in Council | No date fixed
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| Committee's assessment | Politically important
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| Committee's decision | For debate in the European Committee on the same occasion that it debates the draft Regulation on determining the Member State responsible for examining an application for international protection
((30267) 16929/08)
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Background
3.1 In 1999, the European Council adopted a five-year programme
of action on justice and home affairs (the Tampere Programme).
It agreed to work towards establishing a Common European Asylum
System, based on the full application of the Geneva Convention.[10]
3.2 The Council of Ministers subsequently adopted
the following four Directives ("the first phase legislation"):
- the Procedures Directive on
minimum standards for Member States' procedures for granting and
withdrawing refugee status;[11]
- the Qualification Directive on common minimum
standards for the qualification and status of third country nationals
or stateless people as refugees or as persons otherwise in need
of international protection;[12]
- the Reception Conditions Directive on minimum
standards for the reception of asylum seekers;[13]
and
- the Temporary Protection Directive on minimum
standards for giving temporary protection in the event of a mass
influx of displaced people and measures to promote a balance of
effort between Member States in receiving such an influx.[14]
3.3 In addition, the Council adopted two Regulations
to determine which State should examine an application for asylum
(the Dublin Regulation);[15]
and a Regulation on the creation and operation of a database of
the fingerprints of asylum seekers (EURODAC).[16]
3.4 In 2004, the European Council adopted a further
five-year programme of action on justice and home affairs (the
Hague Programme). It says that:
"The aims of the Common European Asylum
System in its second phase will be the establishment of a common
asylum procedure and a uniform status for those who are granted
asylum or subsidiary protection."[17]
The Hague Programme invites the Commission, in the
period up to 2010, to evaluate the first phase legislation and
propose legislation to give effect to the second phase.
3.5 Recitals 7 and 8 to the Reception Conditions
Directive of 2003 say that:
- minimum standards should be
set for the reception of asylum seekers to ensure that they have
comparable living conditions in all Member States and that the
conditions are normally sufficient to ensure asylum seekers a
dignified standard of living; and
- the harmonisation of the reception conditions
should help to reduce the secondary movement of asylum seekers.
3.6 In 2007, the Commission published a report on
the implementation of the Reception Conditions Directive.[18]
It concluded that the Directive has been transposed satisfactorily
in the majority of Member States. The Commission said that:
"Contrary to what was predicted following
adoption of the Directive, it appears that Member States have
not lowered their previous standards of assistance to asylum seekers.
However, the present report has clearly shown that the wide discretion
allowed by the Directive in a number of areas, notably in regard
to access to employment, health care, level and form of material
reception conditions, free movement rights and needs of vulnerable
persons, undermines the objective of creating a level playing
field in the area of reception conditions."[19]
3.7 In June 2008, the Commission published its Policy
Plan on Asylum.[20] It
set out what the Commission saw as the essential components of
a Common European Asylum System and outlined the amendments to
the Reception Conditions Directive, and the Asylum Procedures
and the Qualification Directives which it intended to propose
in order to remove what it regarded as the distortions caused
by the present differences in Member States' practices.
3.8 Article 63(1)(b) of the EC Treaty requires the
Council to adopt measures on minimum standards for the reception
of asylum seekers.
3.9 The fourth Protocol to the EC Treaty provides
that the United Kingdom is not bound by a measure adopted by the
Council under Title IV of the Treaty (visas, asylum, immigration
and other policies related to the free movement of persons) unless
the Government opts into it. The UK Government opted into the
Reception Conditions Directive 2003 and the UK is bound by it.
The document
3.10 In the light of the findings of the 2007 report
on the implementation of the Directive and the Commission's subsequent
consultations with Member States, MEPs, the UNHCR, academic experts
and others, the Commission believes that many changes are needed
to the Reception Conditions Directive 2003 (the 2003 Directive).
Because there are so many, the Commission proposes this measure
to repeal and replace the 2003 Directive.
3.11 The proposed new Directive would apply to applicants
for "international protection" . The 2003 Directive
applies only to third country nationals and stateless people who
apply for "refugee status". The proposed Directive would
apply not only to them but also to third country nationals and
stateless people who apply for "subsidiary protection status".
The Commission proposes that, for the purposes of the draft Directive,
the definition of "application for international protection"
should be the same as the definition in the Qualifications Directive.[21]
3.12 Article 7 of the 2003 Directive established
the general principle that asylum seekers should be able to move
freely within the area of the host Member State. But it authorised
Member States:
- to decide on the residence
of asylum seekers for reasons of public interest or public order
or for the swift processing of their applications; or
- to confine an applicant to a particular place
for legal reasons or reasons of public order.
Otherwise, the 2003 Directive makes no provision
on the detention of asylum seekers.
3.13 Articles 8 to 11of the draft Directive propose
new provisions on detention, safeguards for detained applicants,
the conditions of applicants held in detention, and the detention
of vulnerable people and people with special needs. The new Articles
provide, for example, that:
- Member States must not hold
people in detention for the sole reason that they have applied
for international protection;
- applicants may be detained only if less coercive
measures would not be effective and only then in order to establish
their identity or nationality; to determine elements of their
applications which might otherwise be lost; decide on their right
to enter the Member State; or when national security and public
order require detention;
- detention must be for the shortest possible period
reasonably required to process the application and obtain the
information necessary for the determination of it;
- detention should normally be ordered only by
judicial authorities but in urgent cases may be ordered by administrative
authorities for no more that 72 hours unless confirmed by judicial
authorities;
- applicants who are detained should receive free
legal advice and representation if they cannot afford to pay for
it themselves;
- Member States must not detain asylum seekers
in prison accommodation;
- unaccompanied minors must never be detained;
- detained families must be provided with separate
accommodation which provides adequate privacy; and
- people with special needs should not be detained
unless a suitably qualified person certifies that their health
and well-being will not deteriorate significantly as a result
of detention.
3.14 Article 11 of the 2003 Directive provides that
Member States should decide the length of time during which an
applicant for asylum may not have access to the labour market.
If the application has not been decided within a year of being
made, the Member State should decide the conditions for giving
the applicant access.
3.15 Article 15 of the draft Directive replaces this
with a requirement on Member States to give applicants access
to the labour market no later than six months after they make
their applications.
3.16 Article 17(5) of the draft Directive proposes
a new requirement about the "material receptions conditions"
of applicants.[22] It
provides that, in calculating the amount of assistance to be given
to an applicant, Member States should ensure that the total value
of the material reception conditions is equivalent to the amount
of social assistance granted to nationals of the Member State
who require assistance.
3.17 Articles 21 to 24 of the draft Directive contain
provisions on the reception conditions of people with special
needs, including minors, disabled people, old people, pregnant
women, victims of trafficking in human beings, people with mental
health problems and people who have been subjected to torture,
rape and other serious forms of violence. Article 21(2) requires
Member States to establish procedures for identifying any special
needs as soon as an application for international protection is
made and to ensure that people with special needs receive support
throughout the asylum procedure. Articles 22, 23 and 24 contain
requirements specific to the treatment of minors, unaccompanied
minors, and victims of torture and violence.
The Government's view
3.18 In his Explanatory Memorandum of 23 December
2008, the Minister of State at the Home Office (Mr Phil Woolas)
tells us that the Government is still considering whether to opt
into the draft Directive. In making the decision, it will have
particular regard to:
- the extent to which the provisions
— and especially those on detention, employment rights and
support levels — would help the Government achieve its objectives
of safeguarding the UK's borders and operating an asylum system
that makes fast and fair decisions, protecting people who need
protection and removing those who do not; and
- the implications for the UK's broader relationships
with the EU and Member States.
3.19 The Minister says that the Government welcomes
the proposal that the new Directive should include applicants
for subsidiary protection as well as applicants for refugee status.
In the UK, applicants for subsidiary protection are already given
the benefit of the provisions of the 2003 Directive.
3.20 Commenting on the proposed Articles on detention
(Articles 8 to 11), the Minister says:
"In the UK third country nationals are only
detained when they meet specific detention criteria, such as for
the purposes of removal or where there is a risk of absconding.
Our detained fast track system was introduced to deal with asylum
seekers whose claims appear straightforward and capable of being
decided quickly."[23]
Applicants may challenge the lawfulness of their
detention before the courts and may also apply for bail. In the
light of the safeguards which exist in the UK, the Government
is not convinced that Articles 8 to 11 are necessary.
3.21 The Government is concerned that the proposal
in Article 15 of the draft Directive to require Member States
to give applicants access to the labour market not later than
six months after they make their applications might encourage
fraudulent applications by people seeking to use the asylum system
as a cover for economic migration. The Government considers that
the approach taken in Article 11 of the 2003 Directive is more
appropriate because integration into society should be reserved
for people who have a long-term future in the UK.
3.22 As to the provisions on material reception conditions
(Articles 17 to 20 of the draft Directive), the Minister says
that the Government considers that the support provided in the
UK is already sufficient to meet the essential living needs of
asylum seekers during the short time before they are either granted
protection or refused it and removed. So the Government is not
persuaded that the proposed changes are necessary.
3.23 Commenting on Articles 21 to 24 of the draft
Directive (provisions for persons with special needs), the Minister
says that the UK already has high standards:
"All applicants are asked if they have any
special needs at asylum screening units and again when completing
their asylum support applications. We recognise that some asylum
seekers have special needs and we ensure that these are taken
into account when dealing with their claim. In addition they are
informed of the numerous organisations within the UK who can also
provide assistance.
"Applicants' needs are assessed individually
when allocating accommodation and are subject to regular review.
In the UK local authorities provide accommodation and welfare
support where an asylum seeker is in need of care and attention
because of age, illness or disability affecting their ability
to live independently. We place no restrictions on access to health
care for asylum seekers generally or education of minors though
some restrictions may apply to those aged 16 and over in line
with national practices for school leaving age.
"Provisions have been included in the UK
Borders Act to establish a Code of Practice to Keep Children Safe
from Harm and place our responsibilities towards children on a
statutory basis.
"We consider that the procedures in place
in the UK more than meet our obligations and suggest that greater
emphasis should be placed on sharing best practice to assist our
EU partners who are struggling to meet the existing minimum standards."[24]
Conclusion
3.24 We are grateful to the Minister for his clear
and thorough exposition of the Government's view. We are particularly
grateful to him for telling us the considerations to which the
Government will have regard in deciding whether to opt into the
draft Directive.
3.25 Because of the importance of the arrangements
for the reception of asylum seekers and so that the Government
is able to take the views of the House into account in reaching
its Decision over whether to opt into the measure, we recommend
the draft Directive for debate in the European Committee. Because
this proposal raises some issues similar to those which arise
on the draft Regulation on determining the Member State responsible
for examining an application for international protection,[25]
we recommend that the two documents should be debated on the same
occasion.
10 Tampere European Council, 15-16 October 1999, Presidency
Conclusions, Annex A, paragraphs 14 and 15. Back
11
Council Directive 2005/85/EC: OJ No. L 326, 13.12.05, p.13. Back
12
Council Directive 2004/83/EC: OJ No. L 304, 30.9.04, p.12. Back
13
Council Directive 2003/9/EC: OJ No. L 31, 6.2.03, p.18. Back
14
Council Directive 2001/55/EC: OJ No. L 212, 7.8.01, p.12. Back
15
Council Regulations(EC) No. 1560/2003: OJ No. L 222, 5.9.03, p.3;
and Council Regulation (EC) No. 343/2003: OJ No. L 50, 25.2.03,
p.1. Back
16
Council Regulation (EC) No. 407/2002: OJ No. L 62, 5.3.02, p.1. Back
17
European Council 4-5 November 2004, Presidency Conclusions, Annex
I, page 17, final paragraph. Back
18
(29216) 15802/07: see HC 16-vii (2007-08), chapter 9 (9 January
2008). Back
19
.Commission report, page 10, final paragraph. Back
20
(29766) 11022/08: HC 16- xxix (2007-08), chapter 16 (10 September
2008). Back
21
Council Directive 2004/83/EC: OJ No. L 304, 30.9.04, p.12.
Article 2(g) of the Qualifications
Directive says that "application for international protection"
means a request by a third country national or a stateless person
for protection from a Member State where the person can be understood
to be seeking refugee status or subsidiary protection status.
Article 2(c) defines "refugee"
as a third country national who, because of a well-founded fear
of being persecuted on grounds of race, religion, nationality,
political opinion or membership of a particular social group,
is outside the country of nationality and is unable, or owing
to such fear, is unwilling to avail himself or herself of the
protection of that country, or a stateless person, who, being
outside the country of former habitual residence, for the same
reasons, is unable or unwilling to return to it.
Article 2(e) of the Qualifications
Directive defines "person eligible for subsidiary protection"
as a third country national or stateless person who does not qualify
as a refugee but in respect of whom substantial grounds have been
shown for believing that the person, if returned to his or her
country or former country, would face a real risk of suffering
serious harm and is unable or unwilling to avail himself or herself
of the protection of that country. Back
22
Article 2(h) of the draft Directive defines "material reception
conditions" as including housing, food, clothing and a daily
expenses allowance. Back
23
Minister's Explanatory Memorandum of 23 December 2008, paragraph
16. Back
24
Minister' Explanatory Memorandum of 23 December 2008, paragraphs
24 to 27. Back
25
(30267) 16929/08. Back
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