Submissions of the Immigration Law Practitioners Association (ILPA) to the House of Lords Select Committee (E) on the Commission's proposed directive laying down minimum standards on the reception of applicants for asylum in Member States




1.     ILPA welcomes this opportunity to submit its preliminary observations on the Commission's proposed directive on reception conditions for asylum applicants. ILPA will be preparing a more detailed response to the directive scoreboarding its compliance with international human rights standards as well as adherence to the Tampere agenda similar to its scoreboard on the Commission's proposed directive on the Minimum Standards for Granting and Withdrawing Refugee Status which the Select Committee has had sight of in February 2001.


2.     ILPA considers the aims and principles behind the proposed directive as set out in the Commission's explanatory memorandum are generally sound however there are a number of deficiencies in the proposed directive itself which would expose asylum applicants to potential hardship and destitution as well deterioration in physical and mental well-being.


3.     At the heart of any measure concerning the conditions in which an asylum applicant awaits the outcome of his or her claim for refugee status should be the need to provide often vulnerable person who may have fled their own home countries in difficult if not impossible circumstances and who may have no knowledge of the language of the Member State, of procedures of adopted by the member state and no other social support networks. Too often in the recent past Member States have sought to restrict access to employment, social security and other forms of social support in the belief that such benefits may act as pull factors to asylum seekers who are without genuine asylum claims.


4.     ILPA does not consider that the wish on the part of Member States to dissuade such asylum seekers negates their obligations to provide a just, humane and secure situation for the asylum applicants. Thus only the highest standards of reception conditions are acceptable.


5.     There are a number of specific parts of the proposed directive which are now considered in greater detail.



Detention and Restrictions on Freedom of Movement



6.     ILPA considers that use of detention should be restricted to circumstances where it is strictly necessary and in accordance with the standards of Article 5 of the European Convention on Human Rights which provides that the right to liberty may only be removed in certain limited circumstances which in relation to immigration control are


"lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition" (Article 5(1)(f)).


Asylum seekers whose claims are yet to be determined can only fall into the former of these categories.


7.     The proposed directive cross references to the provisions in the  proposed directive on Minimum Standards for granting and withdrawing refugee status. ILPA, along with other organisations such as Justice, has been critical in the past of that directive's detention provisions to the extent that the presumption against detention is not expressly stated. Whilst the proposed directive under consideration now is more appropriately worded in terms of stating that an asylum claimant can not be detained for the "sole" reason that their asylum claim needs to be determined, the cross reference to Article 11 of the proposed directive on Minimum Standards for granting and withdrawing refugee status provides scope for detention which is not Article 5 compliant.


8.     It is imperative that standards of detention centres and accommodation centres are good. ILPA is aware of the many instances in which asylum applicants across the Member States have been detain in conditions which do not meet minimum acceptable standards for detention. In this regard the case of Dougoz v Greece (2001) is relevant where the European Court of Human Rights found that the conditions of detention for an immigration detainee fell below the standards of Article 3 and thus constituted inhuman and degrading treatment or punishment. ILPA therefore welcomes the provision in Article 15 for the standards of living to ensure well being.


9.     It is furthermore imperative that persons who are detained are given access to a court in order to challenge the legality of their detention speedily. In this context it should be recalled that "legality" does not simply refer to whether the detention is in accordance with national law but also refers to whether the detention is arbitrary, has not be unduly prolonged and that the alternatives to detention have been carefully considered and rejected. As a minimum safeguard the proposed directive should provide for mandatory bail hearings before a court and a right to bail without sureties.


10.   Any restrictions on freedom of movement of the asylum claimant should be strictly necessary. ILPA is of the view that restrictions on freedom of movement would constitute an unnecessary interference in a claimant's private and family life unless sufficient justification can be provided. ILPA notes that restrictions on freedom of movement are not currently applied to asylum claimants in the United Kingdom save those held in detention centres and considers reference to such restrictions opens the possibility for a degradation of rights in the United Kingdom.





Health and Psychiatric Needs


11.   ILPA welcomes the detailed inclusion of rights of access to health and psychiatric care for persons in the regular procedure. We consider that the inclusion of such rights is imperative given the fact that many asylum seekers will be the victims of physical and mental ill-treatment and will have very specific health care needs.


12.   ILPA is convinced, however, that access to health and psychiatric care should continue up until the point at which the asylum claimant is removed. The present wording of Article 20 suggests that as soon as an asylum applicant is informed of a negative decision against him or her, his right to access to primary and specialist care would cease. Given that there will inevitably be some delay in the individual being able to leave the jurisdiction this would appear to be very harsh. In any event it certainly the case the some asylum claimants may not be recognised a refugees but for other humanitarian reasons are not removable. Access to health care in those circumstances should continue.



Withdrawal and reduction of access to reception conditions



13.   ILPA is extremely concerned at the circumstances laid down in Article 22 in which access to reception conditions. In particular ILPA is concerned that access to reception conditions may be withdrawn where there are grounds for believing that an individual constitutes a threat to national security or has committed a crime against humanity, albeit serious grounds. ILPA is firmly of the view that should Member States wish to prosecute an asylum claimant under its criminal laws, then this is the appropriate mechanism for punishing a person proved to have committed such crimes. It is not appropriate to withdraw access to reception conditions merely on the basis of suspicions where this might negatively impact not only upon the "accused" asylum seeker but also his or her family.


14.   ILPA is further concerned that the proposed directive provides for the withdrawal of material reception conditions where a person or his or her family member has behaved in a threatening or violent manner or an one of them have failed to comply with requirements to live in a certain place. It is entirely unacceptable to withdraw basic needs from individuals on the basis of the behaviour of others leaving open the possibility of destitution. ILPA suggests that it would be far more appropriate for the individual accused of such behaviour to be subject to internal disciplinary procedures which are governed by proper regulations and impartial application of those regulations.


15.   ILPA considers that any appeal rights and access to court to challenge a decision to withdraw or reduce material reception conditions should be heard quickly bearing in mind the devastating consequences of prolonged withdrawal of such conditions.


Access to information and legal assistance



16.   ILPA considers that the proposed directive does not go far enough in ensuring that asylum seekers have full access to information resources and proper legal assistance. ILPA considers that the mere provision of information on benefits and legal assistance available is inadequate. Full information resources should be available. This includes full information on asylum procedure and on the possibility to appeal and the procedures involved. There must be sufficient personnel to ensure that these services are accessible at any stage of the procedure.


17.   ILPA considers that Member States should provide access to legal advice and adequate and competent translation, both free of charge and accessible to every asylum seeker. Legal advice must be operated by an independent agency. There is a need for specific training for lawyers representing asylum seekers.





To summarise ILPA’s position on the Commission’s proposal we would stress the following points:


·               harmonisation of reception conditions for asylum applicants among the EU Member States is an important objective which deserves support; the Commission’s proposal is a good starting place but has a number of worrying shortcomings of which the following are, in our view the most important;

·               first, the provisions on detention of asylum applicants are far too wide; if there is one issue which is beginning to dominate EU level policy on asylum it is this one of detention – the efforts of some Member States to use detention as a form of dissuasion for asylum applicants and to make asylum applicants “disappear” from public view (even at unreasonable cost) is already resulting in condemnations from the European Court of Human Rights relating to the conditions of that detention; this problem is best resolved by not detaining asylum applicants except in the most extraordinary circumstances each of which must be justified by the state on the individual circumstances of the applicant (not on the basis of his or her race, ethnic origin or nationality);

·               access to health care: the proposal does not go far enough in assuring access to health care for asylum applicants up to the point of departure;

·               withdrawal of benefits: the proposal permits the withdrawal of benefits in too wide a series of circumstances; no matter what allegations are made about an applicant, he or she remains in a vulnerable position and in need of support; if the state is entitled to withdraw support to the destitute on reasons unrelated to their own ability to support themselves all that happens is that social problems are created; what are these people going to do to support themselves?  Unfortunately they may well be forced into criminal activity or prostitution; this is not in the interests of European states;

·               the provisions on access to information and legal assistance are not sufficient; as we know from information in the UK, where an asylum applicant has competent legal assistance from the beginning of his or her claim, his or her chances of receiving protection are enormously enhanced; further, the fear and stress of being in the asylum procedure is very great for the individual; these problems which are fundamental to the mental and physical health of the asylum applicant can be diminished by providing competent and immediate information in a language which the individual can understand about the procedure and the steps which are taking place; these provisions of the proposal need to be strengthened.