The European Council on Refugees & Exiles (ECRE), a network of some 70 refugee-assisting non-governmental organisations in 25 European States, has always been concerned with the standards and procedures with which European Union States receive those seeking protection on their territory. We, therefore, welcome this opportunity to comment on the Commission’s Discussion Paper on minimum standards for the reception of applicants for asylum in Member States and support the earlier statements of the French Presidency in their paper of 23 June 2000, that "it is extremely important that Member States should welcome [asylum seekers] in dignified conditions and offer them favourable surroundings for the examination of their asylum applications."

This paper aims to provide input to the discussion, launched by the European Commission’s Discussion Paper on minimum standards for the reception of applicants for asylum in Member States which will take place in the Council. It is for this reason that the paper’s structure follows that of the Commission’s Discussion Paper. However, this paper also takes into account the Conclusions under the French Presidency (Orientations pour le future instrument communautaire sur les conditions d’accueil des demandeurs d’asile), adopted in November 2000.

The following observations do not address all the issues that are raised by the Commission. Instead, the paper focuses on those issues which are of most concern to ECRE and responds to some of the specific questions raised by the Commission’s Discussion Paper. For further information on ECRE’s position on reception of asylum applicants, we would refer the reader to ECRE’s Position on the Reception of Asylum Seekers, June 1997; which should be read in conjunction with ECRE’s Positions on Asylum Seeking and Refugee Women, December 1997; our Position on Refugee Children, November 1996; our Position on the Detention of Asylum Seekers, April 1996 and our Position on the Integration of Refugees in Europe, September 1999.

ECRE’s approach to reception conditions for asylum applicants is guided by the following three principles.

• ECRE is of the opinion that reception policy can prepare simultaneously for both possible outcomes of the asylum determination procedure, namely return or integration. As such, the reception period should not be viewed in isolation.
• ECRE firmly believes that the approach to harmonisation must be based not only on minimum standards but also on the need for harmonisation of good practice.
• There should be no discrimination in standards of reception on any grounds. There may, however, be differentiation of services in order to positively assist those with special needs.

Due to the fact that all the future Community instruments based on Article 63 of the Amsterdam are inextricably inter-related, ECRE expresses the hope that European Union Member States will not draft the instruments in isolation. ECRE urges the European Union to ensure an approach that will guarantee that the instruments are examined holistically.

The issue of the scope of the Community instrument has already been faced by the Commission in the context of other proposals and papers relating to Article 63 of the Amsterdam Treaty. The position of ECRE in this regard is now well known to the European Commission and Member States, as it has been stated in the context of our previous observations on asylum procedures, the Dublin Convention and with regard to the Commission’s Scoreboard.

ECRE strongly believes that the European Union’s legal instruments on both asylum procedures and minimum standards for reception conditions should be applicable to all applications/applicants for protection. ECRE would urge the European Union to make the Community legal instrument on reception conditions applicable to all applications for asylum, be it under the 1951 Geneva Convention, as amended by the New York Protocol, under Article 3 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, Article 3 of the UN Convention against Torture, Article 7 of the International Covenant on Civil and Political Rights or under national legal provisions for protection.

ECRE does not support the suggestion made in the Discussion Paper that special provisions should be included within the Proposal on reception conditions that focus on persons who have been granted refugee status. There is no legal basis for this under Article 63 of the Amsterdam Treaty and refugees recognised under the 1951 Convention are entitled to the rights provided for by that treaty. The rights of persons enjoying other forms of international protection, should be the subject of separate consideration, under Article 63(2) (a). However, we do recognise that in practical terms, asylum applicants granted a protection status may require a short period of time to acquire and implement the new rights attached to that status. Member States should ensure that refugees are able to exercise these rights as speedily as possible.

At the outset, ECRE would like to stress that European Union States’ negotiations to establish minimum standards of reception conditions for asylum applicants do not take place in a legal vacuum and Member States do not have complete discretion as to what standards may be established. European Union States must ensure that the Community instrument is in full conformity with international human rights law. This includes, not only the 1951 Geneva Convention as amended by the 1967 Protocol and the European Convention on Human Rights, but also the International Covenant on Economic, Social and Cultural Rights, the International Covenant on Civil and Political Rights, the Convention on the Rights of the Child, and the Convention on the Elimination of All Forms of Discrimination against Women — all of which have direct relevance to the reception of asylum applicants. ECRE would recommend that the primacy of these instruments be explicitly acknowledged in the text of the Community instrument on reception conditions and that careful consideration be given to the relevant provisions in order to ensure that the Community instrument does not violate basic human rights standards.

ECRE supports the Commission’s aim to establish health, psychiatric and psychological care for asylum applicants in line with best practice in the European Union. Emergency health care or limited insurance schemes, as proposed by the Commission, are not a solution. Refugee health needs are complex. The needs of asylum applicants can best be served through appropriate primary health services. However, asylum applicants should have access to such care irrespective of where they are accommodated, and from the time of arrival in the Member State and throughout the asylum procedure. Medical professionals should decide when a condition requires treatment, as opposed to the decision resting with an immigration official or the managing staff of a reception centre.

Victims of torture need specialised care from dedicated centres or local experts which needs to be funded.

ECRE supports the view of the Commission that States should fully guarantee the right to freedom of movement within the host country to asylum applicants and their families. We are, however, critical of the view expressed in the Discussion Paper that Member States should be "free to decide" that asylum applicants and their families must live in a restricted area of the national territory. This flagrantly undermines the principle of freedom of movement.

If Member States insist on restricting the right of freedom of movement, it must be subject to very strict criteria. ECRE believes that such measures should never be imposed merely as a deterrent measure, nor merely to increase surveillance by the authorities. If restrictions are imposed, they must be proportional to the ends to be achieved, respect the right to family unity, be applied without discrimination, and for a limited period only. It is obvious that any such restriction should not impede the asylum applicant from exercising his/her rights under the Directive or national law e.g. access to legal advice and access to health services.

ECRE strongly believes that, as a general rule, asylum seekers should not be detained. It should not generally play a part in the reception of asylum applicants and, therefore, should not be addressed within the EU legal instrument on reception. The right to liberty and security of the person is a fundamental principle of international human rights law and demands separate standard-setting by human rights bodies. Deprivation of liberty obstructs and undermines the operation of a fair and efficient procedure for the determination of refugee status. Asylum seekers may have already suffered imprisonment and torture in the country from which they have fled. Therefore, the consequences of detention may be particularly serious, causing severe emotional and psychological stress and may amount to inhuman and degrading treatment. Systematic use of detention as a part of reception or determination procedures is strongly condemned by ECRE. ECRE urges Member States to consider the full range of alternative, non-custodial measures available to them, which are both more humane and more effective. Asylum applicants should only be detained, as a last resort where non-custodial measures have been proven on individual grounds not to achieve the stated, lawful and legitimate purpose.

Conditions in detention should reflect the non-criminal status of the detainees and be consistent with all international standards. In particular, detainees should have unrestricted access to independent, qualified and free legal advice. Specialised NGOs, UNHCR and legal representatives should have access to all places of detention.

ECRE maintains that the ‘reception’ of asylum seekers in ‘closed’ facilities at European border points, sea and airports amounts to detention — it should not be described, as the Discussion Paper does, as an accommodation option. It should be avoided for the reasons stated above. Where resorted to in exceptional cases, it should be covered by the same legal safeguards as other forms of deprivation of liberty in the host state. If asylum applicants are detained at border, sea or airports, they should be provided with all necessary assistance, including food, shelter, effective access to legal advice and representation, qualified interpreters, medical and sanitary services. Furthermore, UNHCR, non-governmental organisations and legal counsellors should have free and unhindered access to asylum applicants detained at border points, sea and airports.

The Commission’s Discussion Paper appears to suggest that it is an option to consider denying accommodation to asylum applicants whose applications are being processed in admissibility or accelerated procedures.

ECRE would point out that the denial of accommodation to asylum applicants would be a violation of the International Covenant on Economic, Social and Cultural Rights which guarantees the right to an adequate standard of living, including housing. General Comment 2 of the Committee established under the Covenant states "a State party in which any significant number of individuals is deprived of essential foodstuffs, of essential primary health care, of basic shelter and housing, or of the most basic forms of education is, prima facie, failing to discharge its obligations under the Covenant. If the Covenant were to be read in such a way as not to establish such a minimum core obligation, it would be largely deprived of its raison d’être". General Comment 4 of the Committee has emphasised that the right to housing "should not be interpreted in a narrow or restrictive sense which equates it with, for example, the shelter provided by merely having a roof over one’s head or views shelter exclusively as a commodity. Rather it should be seen as the right to live somewhere in security, peace and dignity." Furthermore, the Convention on the Rights of the Child also provides the right to adequate standard of living for all children.

European Union Member States have a legal obligation to ensure all asylum applicants have accommodation from the time of arrival and throughout the procedure, including admissibility and accelerated procedures.

Wherever possible, asylum seekers should be able to obtain alternative forms of accommodation to reception centres if they so wish. It is important that the period of stay in a reception centre is as short as possible and does not exceed six months as long term stay in reception centres may lead to ‘institutionalisation’. Furthermore, reception centres must not be located in isolated areas as this would effectively deny asylum applicants’ rights to e.g. access to legal advice.

The level of support for asylum applicants should be seen in the context of the fact that asylum seekers usually do not have extended family networks to support them and it may be very difficult for them to secure employment where granted the right to work. ECRE would urge Member States to grant asylum applicants rights to minimum welfare assistance in parity with nationals.

The Commission’s Discussion Paper suggests that support may be provided by means of vouchers or in kind. ECRE is opposed to the use of vouchers as they stigmatise and humiliate asylum applicants. Social assistance should be received as money sufficient to cover basic needs, and within a reasonable time. The provision of social assistance in kind or food is only appropriate in emergency situations of mass influx or at the first, temporary point of reception.

The Discussion Paper notes that the issue of if and when asylum applicants should be granted the right to work has been contentious for Member States. ECRE strongly believes that asylum seekers should benefit from access to the labour market of the host state at the earliest possible stage. This is in the interests of both Member States and asylum applicants. A reception policy which includes the right to work will simultaneously prevent exclusion from the host society and facilitate re-integration upon return to the country of origin. Furthermore, employment promotes self-sufficiency among asylum seekers and is, therefore, in the interests of the host state.

If Member States insist on exercising discretion with regard to when to grant the right to work, ECRE would urge the Community instrument to establish a 6 month deadline - following the lodging of the asylum application - after which access to the labour market must be granted. ECRE believes that this right should be granted regardless of the status of the procedure. In this context, we would recommend building upon the good example of the DG Employment & Social Affairs programme EQUAL which has a strand making it obligatory for governments to take due account of the "social and vocational integration of asylum seekers". In this context, it would be appropriate to also grant access to vocational training on the same basis which as the Commission rightly points out in the Discussion Paper improves the prospects of asylum applicants both in the case of return to the country of origin and in the case of integration in the host country.

The Discussion Paper poses the question of what type of employment should be covered by the future Community instrument. ECRE advocates strongly for the inclusion of both paid employment and self-employment. In our experience, due to the many barriers refugees' face on the labour market, self-employment is an important route for asylum seekers to find work and also provides the opportunity for asylum seekers to take advantage of their talents and skills.

ECRE supports the proposal that schooling of minors is one of the reception conditions that should be the same in all Member States. ECRE welcomes the Commission’s proposal that minors should have a right to education during admissibility, accelerated and regular procedures, including appeals. This would be in conformity with the International Covenant on Economic, Social and Cultural Rights, the Convention on the Rights of the Child, and the 1951 Geneva Convention which provide for the right to education, including the right to access public educational institutions and the right to primary education. This right should not be subject to exceptions.

ECRE recommends that expert advice and guidance support on education and training options should be an integral part of any initial support arrangements for asylum seekers upon their arrival in the EU.

ECRE notes that the Commission has not included items such as language acquisition, and assistance with recognition of previous qualifications and re-qualification, and suggests that these are included in the instrument on reception conditions. It is our view that to promote a quick move from dependency to self-sufficiency, there is a need to invest early in the integration process, starting at the reception phase. ECRE considers special language programmes for refugees to be a key-priority in this initial phase and therefore recommends that language classes are integrated into the initial support arrangements for asylum seekers.

The Discussion Paper has omitted to mention conditions of reception in relation to access to legal advice, although the right of access to legal advice is referred to in the French Presidency’s Conclusions. ECRE urges Member States to include the right of access to legal advice in the future Community instrument on reception conditions. ECRE recognises that such a right should clearly be provided for by the Directive on minimum standards on asylum procedures. However, insofar as the Directive on reception conditions will determine the context within which that right is exercised, provision should also be made in the Directive on reception conditions. This necessitates that States ensure that asylum applicants can meet with their legal advisors. This in turn requires that:

• asylum seekers are able to leave their place of accommodation and have the means to pay for travel to meet with their legal advisor;
• that legal advisors have access to places of reception and detention centres and are funded to travel to such places;
• asylum applicants have access to telephones and other communication services.

Finally, ECRE would urge Member States to include provisions on access to qualified and impartial interpreters in the future Community instrument.

ECRE supports the position of the Presidency Conclusions that provision be made that asylum applicants are informed, at the time of their application for international protection, of the asylum procedure, all the rights and benefits which they can claim; their duties, all information relating to their reception and how they might access/contact organisations and associations able to provide them with assistance. ECRE recommends that this information be given in writing and in a language which the asylum applicant can understand.

The French Presidency made a useful reference in its paper of 23 June 2000 to the important role of non-governmental organisations in the area of reception of asylum seekers. This was omitted from the Commission’s Discussion Paper. ECRE notes that NGOs and refugee community groups in particular have a valuable contribution to make to all stages of the reception process when properly supported by governments. In particular, ECRE would urge that NGOs, as well as UNHCR, be given access to reception facilities for monitoring the conditions and the provision of services.

The Commission proposes that the future Community instrument should outline cases for exclusions or reduction of reception conditions. This includes: "when applicants, after having lodged an application, are found guilty of a serious crime by a first instance court decision" and "when they have exhibited violent or threatening behaviour to persons performing duties in the running of an accommodation centre or to other persons staying at the centres". ECRE would suggest that such situations are more appropriately dealt with under national criminal law systems.

ECRE recalls that certain basic standards of reception are required by international human rights law. ECRE would concur with the view of the Commission that such action would negatively impact on the living conditions of the asylum applicant, and consequently on the fairness of the asylum procedure. As such, ECRE would support the need to guarantee judicial review of a decision to exclude from or reduce reception conditions, including the right to legal assistance.

It is ECRE’s view that the Community instrument on reception conditions should cover all stages of the asylum procedure: admissibility (as defined by the Proposal on asylum procedures), accelerated, regular and appeal procedures until a decision is taken either granting a form of international protection or until the definitive rejection of the asylum application i.e. until the asylum applicant has exhausted all domestic and international legal remedies, whilst remaining on the territory or where s/he chooses not to exercise his/her right of appeal. It follows from this view that in relation to appeal procedures, ECRE strongly disagrees with options b), c) and d) as set out on page 7 of the Commission’s Discussion Paper which would deny applicants whose applications are the object of an appeal process some or all of the rights under the Community instrument.

December 2000