Art

Proposal for a COUNCIL DIRECTIVE laying down minimum standards on the reception of applicants for asylum in Member States.

COM (2001) 181 final

(Presented by the Commission)

Proposal for a Council Directive laying down minimum standards for the reception of applicants for asylum in Member States.

11 April 2002

(Presented by the Council)

Art.3 Scope

The Directive shall apply to all third country nationals and stateless persons who make an application for asylum at the border or on the territory of a Member State and to their accompanying family member.

It shall also apply where examination of an application for asylum takes place within the context of a procedure to decide on the right of the applicant to enter legally the territory of a Member State.

This Directive shall not apply in cases of requests for diplomatic or territorial asylum submitted to representations of Member States.

Member States may decide to apply this Directive in connection with procedures for deciding on applications for kinds of protection other than emanating from the Geneva Convention for third country nationals or stateless persons who are found not to be refugees.

Art.3 Scope

This Directive shall apply to all third country nationals and stateless persons who make an application for asylum at the border or on the territory of a Member State as long as their are allowed to remain on the territory as applicant for asylum, as well as the family members referred to by Article 2(d), if they are covered by this application for asylum according the national law.

This Directive shall not apply in cases of requests for diplomatic or territorial asylum submitted to representations of Member States.

Art.4 More favourable provisions

Member States may introduce or retain more favourable provisions in the field do reception conditions for applicants for asylum in so far as they are compatible with this Directive.

Art.4 More favourable provisions

Member States may introduce or retain more favourable provisions in the field do reception conditions for applicants for asylum and other close relatives of the applicant who are present in the same Member State when they are dependant of him or for humanitarian reasons insofar as these provisions are compatible with this Directive.

Commission Proposal

Council Proposal

Art.5 Information

Member States shall inform applicants for asylum as well as adult family members, immediately after they have lodged their application, of benefits to which they are entitled and of the obligations with which they must comply relating to reception conditions

Member States shall ensure that applicants are provided with information about organisation or persons to provide a specific legal assistance and organisation that might be able to help them in relation to the available reception conditions, including health care to which they are entitled.

Member States shall ensure that each adult accompanying family member of an applicant is informed in private of the right to make a separate application for asylum.

Member States shall ensure that the information referred to in paragraph 1 is in writing and, as far as possible, in a language that the applicant understand.

Applicants shall be informed of language courses voluntary return schemes when they are available for them.

Art.5 Information

Member States shall inform applicants for asylum, within a reasonable time not exceeding fifteen days after they have lodged their application with the competent authority, of at least any established benefits and of the obligations with which they must comply relating to reception conditions.

Member States shall ensure that the information referred to paragraph 1 is in writing and, as far as possible, in a language that the applicants may reasonably be supposed to understand. Where appropriate this information may also supplied orally.

Commission proposal

Council Proposal

Art.6 Documentation

Member States shall ensure that, immediately after an application is lodged each, the applicant and each adult accompanying family member is provided with a document issued in their own name certifying their status as an applicant for asylum or as an adult family member accompanying an applicant for asylum. If the holder is free to move within all or a part of the national territory, the document shall also certify that the holder is legally on the territory of the Member State in which the application has been lodged or is being examined. Information on the holder’s entitlement to health and psychological care and position in relation to the labour market may be included in the document.

Member States shall ensure that unaccompanied minors are provided with a document equivalent to that referred to in paragraph 1.

Member States should ensure that the documents referred to paragraphs 1 and 2 are valid or renewed until a decision on the application for asylum is notified. Member States shall provide for the possibility of renewing the validity of the document for the duration of the appeal procedure if the applicant lodges an appeal or an automatic review takes place that suspends the negative decision or if the applicants obtains a provisional ruling granting suspensive effect.

Member States may exclude the application of this Article during the examination of an application within the context of a procedure to decide on the right of the applicant to legally enter the territory of the Member State.

Member States may provide applicants for asylum with a travel document when serious humanitarian reasons arise that require their presence in another State.

Art.6 Documentation

Member States shall ensure that, within 3 days after an application is lodged with the competent authorities, the applicant is provided with a document issued in their own name certifying their status as an applicant for asylum or testifying that he or she is allowed to stay in the territory of the Member State while his or her application is pending or being examined.

If the holder is not free to move within all or a part of the national territory, the document shall also certify this fact.

Member States may exclude the application of this Article when the asylum applicant is being held and during the examination of an application submitted at the border or with the context of a procedure to decide on the right of the applicant to legally enter the territory of a Member State. In specific cases, during the examination of an application, Member States may provide applicants with other equivalent evidence to the document referred to in paragraph 1.

The document referred to in paragraph 1 must not necessary certify the identity of the applicant for asylum. (

Member States shall adopt the necessary measures to provide asylum applicants with the document referred to in paragraph 1, which must be valid for as long as they are authorised to remain in the territory or at the frontier of a Member State concerned.

Member States may provide applicants for asylum with a travel document when serious humanitarian reasons arise that require their presence in another State.

Commission Proposal

Council Proposal

Art.7 Freedom of movement

Member States shall grant applicants and their accompanying family members individual freedom of movement within their territory or in a specific area of it under the conditions set out in this Article.

Member States shall not hold applicants for asylum in detention for the sole reasons that their applications for asylum need to be examined. However, Member States may hold an applicant for asylum in detention for the purpose of taking a decision in the cases described in Article […] of Directive …/…/EC [on minimum standards on procedures in Member States for granting and withdrawing refugee status].

Member States may only limit the freedom of movement of applicants and their accompanying family members to a specific area of the their nationality where it is necessary for implementing the Directive or in order to enable applications for asylum to be processed swiftly.

In case referred to in paragraph 3 Member States shall provide for the possibility for applicants for asylum and their adult accompanying family members to receive temporary permission to leave the area of the territory in which they live for relevant personal, health and family reasons or for the reasons relating to the examination of their application. Decisions on requests for temporary permission to leave shall be taken individually, objectively and impartially and reasons shall be given if they are negative.

Member States shall ensure that applicants have the right to bring proceeding before a court against the limitations on freedom of movement imposed in accordance with paragraph 3 and the decision provided for by paragraph 4 and that they have access to legal assistance which is free of charge when applicants cannot afford it.

Member States may require applicants who are free to choose their place of residence to inform the relevant authorities of their current address to those authorities as soon as possible.

Art. 7 Residence and freedom of movement

Applicants for asylum may move freely the territory of the host Member State or within an area assigned to them by a Member State. The assigned area shall not affect the unalienable sphere of private life and shall allow sufficient scope for guaranteeing access to all benefits under this Directive.

Member States may decide on the residence of the applicant for asylum for reasons of public interest, public order or when necessary for the swift processing and effective monitoring of their application.

Member States may confine an applicant, if need be, to a particular place in accordance with their national law.

Member States may make provision of the material reception conditions laid down in this Chapter subject to actual residence by the applicants in a specific place, to be determined by the Member States. Such a decision which may be of a general nature, should be taken individually and established by national legislation.

Member States shall provide for the possibility of establishing temporary exemptions to the provisions in paragraphs 2 and 3, by granting applicants temporary permission to leave the place of residence. Decisions shall be taken individually, objectively and impartially and reasons shall be given if they are negative.

The applicant shall not require permission to keep appointments with authorities and courts if his or her appearance is necessary.

Commission Proposal

Council Proposal

Art.8 Material reception condition

Member States shall ensure that applicants and their accompanying family members are provided with material reception conditions, in accordance with the provisions of Chapter III.

Art.14 Modalities of material reception conditions

See the text

Commission proposal

Council proposal

Art.9 Families

Member States shall take appropriate measures to maintain the unity of the family as present within their territory, if applicants and their accompanying family members are provided with housing by that Member States and applicants so request.

Art.8 Families

Member States shall take appropriate measures to maintain the unity of the family as present within their territory, if applicants are provided with housing by that Member States. The measures mentioned in this Article shall be implemented with the agreement of the applicants for asylum.

Art.10 Health care

Member States shall ensure that applicants and their accompanying family members have access to health and psychological care, in accordance with the provisions of Chapter IV.

Art.15 Health care

Member States shall ensure that applicants receive the necessary health care which shall include, at least, emergency case and essential treatment of illness.

Member State shall provide necessary medical or other assistance to applicants who have special needs.

Art.11 Medical screening

Member States may require medical screening for applicants. Member States shall ensure that the competent bodies that carry out the screening use methods that are safe and respect human dignity.

Art.9 Medical screening Member States may require medical screening for applicants on public health grounds.

Commission Proposal

Council Proposal

Art.12 Schooling and education of minors

Member States shall ensure that minor children of applicants for asylum and applicants for asylum who are minors have access to education under the same conditions as nationals for so long as deportation order against them or their parents cannot actually be enforced.

The Member States may limit such access to the State education system only.

Minors shall be younger than the age of legal majority in the Member States in which the application has been lodged or is being examined. Member States shall not refuse continued secondary education only by reason of the person concerned having reached the age of majority.

Access to education system shall not be postponed for more than 65 working days after the application has been lodged by the minor or the minor’s parents.

Member states shall ensure that minors referred to in paragraph 1 are offered language course if a lack of knowledge of language of a Member State makes normal schooling impossible.

Art.10 Schooling and education of minors

The Member States shall grant to minor children of applicants for asylum and applicant for asylum who are minors access to the education system under similar conditions as nationals of the host Member State for so long as an expulsion measure against them or their parents is not actually enforced. Such education may be provided in accommodation centres.

The Member States may stipulate that such access must be confined to the State education system.

Minors shall be younger than the age of legal majority in the Member States in which the application has been lodged or is being examined. Member State shall not withdraw secondary education for the sole reason that minors has reached the age of majority.

Commission Proposal

Council Proposal

Art.13 Employment

Member states shall not forbid applicants and their accompanying family members to have access to the labour market for more than six months after their application has been lodged. Member States shall lay down the conditions for the access to the labour market after such a period.

Access to the labour market shall not be withdrawn for the sole reason that an application has been rejected if an appeal with suspensive effect has been lodged or a decision has been obtained allowing the applicant to remain in the Member State in which the application has been lodged or is being examined for the time an appeal against a negative decision is examined.

Access to the labour market may be excluded when negative behaviour of the applicant is ascertained, in Accordance with Article 22.

Art.11 Employment

Member States shall determine a period of time, starting from the date on which an application for asylum has been lodged, during which an applicant shall not have access to the labour market.

If a decision in first instance has not been taken one year after the presentation of an application for asylum and this delay cannot be attributed to the applicant subject to the conditions laid down by the Member States.

Access to the labour market shall not be withdrawn during appeals procedures, where an appeal against a negative decision in a regular procedure has suspensive effect, until such time as a negative decision on appeal is notified.

For reasons of labour market policies, Member States may give priority to the EU nationals and nationals of States bound by Agreement on the European Economic Area and also to legally resident third country nationals.

Art.14 Vocational Training

Member states shall not forbid applicants and their accompanying family members to have access to vocational training for more than six months after their application has been lodged. Member States shall lay down the conditions for the access to vocational training after such a period.

Access to vocational training shall not be withdrawn for the sole reason that an application has been rejected if an appeal with suspensive effect has been lodged or a decision has been obtained allowing the applicant to remain in the Member State in which the application has been lodged or is being examined for the time an appeal against a negative decision is examined.

Access to vocational training may be excluded when negative behaviour of the applicant is ascertained, in accordance with Article 22.

Art.12 Vocational training

Member States may allow applicants for asylum access to vocational training irrespective of whether the applicant has access to the labour market.

Access to vocational training relating to an employment contract shall depend on the extent to which the applicant has access to the labour market in accordance with Article 11.

Commission Proposal

Council Proposal

Art.15 General rules

Member States shall ensure that material reception conditions are available to applicants and their accompanying family members:

(a) During the regular, admissibility and accelerated procedures up to the moment a negative fist instance decision is notified;

(b) During the appeal procedures, when an appeal against a negative decision has a suspensive effect, up to the moment a negative decision on the appeal is notified;

(c) When they have obtained a decision allowing them to remain at the border or on the territory of the Member State in which the application has been lodged or is being examined for the time their appeal against a negative decision is examined.

Member States shall make provisions on material reception conditions to ensure a standard of living adequate for the health and the well being of applicants and their accompanying family members as well as the protection of their fundamental rights.

Member States shall ensure that that standard of living is met in the specific situation of persons who have special needs, in accordance with Article 23, as well as in relation to the situation of persons who are in detention.

Member States shall ensure that this standard is determined with regard to the length of the procedure.

Material reception conditions may be provided in kind, or in the form of financial allowances of vouchers.

Member States may reduce or withdraw material reception conditions three months after applicants and their accompanying family members have been allowed access to the labour market. In these cases, as far as they are not financially independent, Member States shall grant them a food allowance access to basic social care.

Art.13 General Rules

Member States shall ensure that material reception conditions are available to applicants when they make their application.

Member States shall make provisions on material reception conditions to ensure a standard of living adequate for the health and to enable the subsistence of applicants.

Member States shall ensure that standard of living is met in the specific situation of persons who have special needs, in accordance with Article 17, as well s in relation to the situation of persons who are in detention.

Member States may make the grant of all or some of the material reception conditions and health care subject to the condition that applicants do not have sufficient means to have a standard of living adequate for their health and to enable their subsistence.

Member States may require applicants to cover or contribute to the cost of material reception conditions and of the health care provided for in this Directive, pursuant to the provisions of paragraph 3, when the applicants have sufficient resources, for example if they have been working for a reasonable period of time.

If it transpires that an applicant had sufficient means to cover these basic needs at the time when material reception conditions and health care were being provided, then Member States may ask these to refund.

Material reception conditions may be provided in kind, or in the form of financial allowances or vouchers, their amount shall be set in accordance with the principles set for in this Article.

Commission Proposal

Council proposal

Article 22 Reduction or withdrawal of reception conditions following negative behaviour.

See the text

Art. 16 Reduction or withdrawal of reception condition

See the text

Art.2 5 Unaccompanied minors

Member States shall ensure, as soon as possible, a guardian for each unaccompanied minors is appointed to who shall ensure that the minor’s needs are duty met in the implementation of the provisions of this Directive. Regular assessments shall be made by the appropriate welfare authorities.

Unaccompanied minors who make an application for asylum shall, from the moment they are admitted to the territory to the moment they have to leave the Member State in which the application has been lodged or is being examined, be placed, in the following order of priority

(a) With adult family members;

(b) With a foster family;

(d) in other accommodation with a suitable situation for minors.

Siblings shall kept together. Changes of unaccompanied minors’ residence shall be limited to a minimum.

If it is the best interest of the child, Member States shall endeavour to trace the members of the family of unaccompanied minors as soon as possible. In case where there may be a threat to the life or integrity of a minor or its close relatives, particularly if they have remained in the country of origin, care must be taken to ensure that the collection, processing and circulation of information concerning those persons is undertaken on a confidential basis, so as to avoid jeopardising their safety.

Those working with unaccompanied minors shall receive appropriate training on their needs.

Art.19 Unaccompanied minors

Member States shall as soon as possible take measures to ensure the necessary representation of unaccompanied minors by legal guardianship, or where necessary, representation by an organisation which is responsible for the care and well-being of minors, or by any other appropriate representation. Regular assessments shall be made by the appropriate authorities.

Unaccompanied minors who make an application for asylum shall, from the moment they are admitted t the territory to the moment they are obliged to leave the host Member State in which the application has been lodged or is being examined, be placed:

(a) with adult relatives;

(b) with a foster-family;

(d) in other accommodation suitable for minors.

Member States may place unaccompanied minors aged 16 or above in reception centres for adult asylum seekers.

As far as possible, siblings shall be kept together, taking into account the best interest of the minors concerned and, in particular, his or her age or degree of maturity. Changes of residence of unaccompanied minors shall be limited to a minimum.

Member States, protecting the minors’ best interest, shall endeavour to trace the members of the family of unaccompanied minors as soon as possible. In cases where there may be a threat to life or integrity of a child minors or its close relatives, particularly if they have remained in the country of origin, care must be taken to ensure that the collection, processing and circulation of information concerning those persons is undertaken on a confidential basis, so as to avoid jeopardising their safety.

Those working with unaccompanied minor children shall have or receive appropriate training concerning their needs, and shall be bound by the confidentiality principle as defined in the national law, in relation to any information they obtain in the course of their work.

Commission proposal

Council Proposal

Art.26 Victims of torture and organised violence

Member States shall ensure that, if necessary, victims of torture, or organised violence, rape, other gender related violence or other serious acts of violence are accommodated in special centres for traumatised persons or have access to special rehabilitation programmes. Special mental health care shall be provided for persons suffering from post-traumatic stress when it is needed.

Art.20 Victims of torture and violence

Member States shall ensure that, if necessary, persons who have been subjected to torture, rapes or other serious act of violence receive the necessary treatment of damages caused by the aforementioned acts when needed.

Art.21 Appeals

Member States shall ensure that negative decisions relating to the granting of benefits under this Directive or decisions taken under Article 7which individually affect applicants for asylum may be subjected of an appeal within the procedures laid down in the national law. At least in the last instance the possibility of an appeal before a judicial body shall be granted.

Procedures for access to legal assistance in such cases shall be laid down in national law.