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.