Briefing
Summary of ECRE’s position on the
reduction or withdrawal of reception conditions for asylum seekers, with
reference to the Proposal for a Council Directive laying down minimum standards
on the reception of applicants for asylum in Member States[1]
February 2002
ECRE’s Position
ECRE
urges Member States to agree to the granting of material reception conditions
to applicants of asylum during all stages of procedures but is concerned that
the Proposal outlines conditions for reduction or withdrawal of reception
conditions. ECRE strongly urges
Member States to delete Article 22 as a whole for the reasons that it could
result in the violation of international human rights law; some of the
provisions are not required, and some of the provisions are inappropriate and
not proportional to the end to be achieved. We remind Member States of the
objective of the Directive, which, according to paragraphs 4, 6, 8 of the draft
Preamble, is to provide dignified living conditions for all applicants
The Proposal contains a number of provisions (draft Articles 22, 13(3), 15(4)) which provide for the reduction or withdrawal of reception conditions in the case of asylum applicants who display ‘negative behaviour’ (with the notable exception of the provision of emergency health care and health care that cannot be postponed (Article 22(6), and, in the case of Article 15(4), food allowance and access to basic social care). Consequently, under the Proposal, Member States would be allowed, in the case of ‘negative behaviour’, to deny applicants and their family members food, other social assistance and accommodation.
This violates Article 11 of the International Covenant on
Economic, Social, and Cultural Rights (ICESCR) by which States agreed to assure
the "right of everyone to an adequate standard of living for himself and
his family, including adequate food, clothing and housing, and on the
continuous improvement of living conditions." The UN Committee on
Economic, Social and Cultural Rights has forcefully asserted that no group of
persons – including asylum applicants - should be denied the
"minimum core content" of the rights provided by the ICESCR. In its General Comment 3, paragraph 10,
it asserted that States are required to "ensure the satisfaction of, at
the very least, minimum essential levels of each of the rights...". It continued by stating that any
"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.”
ECRE
believes that asylum seekers who
engage in criminal behavior, or are considered a threat to national security,
should be dealt with according to the national criminal law of the host state
and should be treated equally with nationals.
In cases where asylum seekers knowingly and
willingly either do not comply with rules governing material reception
provision or with asylum procedures, consideration should always be given to
the reasons for their behaviour before sanctions are imposed. The effect of trauma and disorientation
on an individual’s ability to make decisions and follow procedures should
be taken into account. It is also important to recognise practical difficulties
that may prevent individuals fulfilling their obligations (such as inability to
read and understand documents).
Asylum seekers who do not comply with the
rules governing the provision of accommodation or healthcare, or conditions of
employment, education or training, may, after proper consideration of their
circumstances, find those rights subject to sanctions equivalent to those
imposed upon nationals. Sanctions should never be imposed indefinitely, but
should have a fixed time limit. Sanctions should not be imposed which mean that
the rights of applicants and their family members to a basic standard of health
care, accommodation, food and social assistance are withdrawn under any
circumstances. Any restrictions should relate specifically to the service where
the individual has not complied with procedures, and not other unrelated
services. No sanctions should be imposed which prevent an asylum seeker from
pursuing his/her claim for asylum, which adversely affect family members or
which disregard the best interests of children.
Asylum seekers have a responsibility to
comply with procedures relating to the determination of their asylum claim.
Where asylum seekers fail to do so, since sanctions should not be invoked which
prevent an asylum seeker applying for asylum, states could consider sanctions
relating to material reception provision, subject to the same criteria outlined
above: sanctions should be time limited and not jeopardise the rights of
applicants and their family members to a basic standard of health care,
accommodation, food and social assistance.
All sanctions relating to asylum seekers should be
part of a national regulatory framework, backed by law, in order to avoid
inconsistency and discrimination. This should include the right to appeal
against the imposition of sanctions.
Proposed amendments
The
following comments are only relevant to the extent that Member States introduce
material reception conditions, which are more favorable than the minimum
standards required by human rights law.
Article
22(1) (b)
This
Article provides for the reduction or withdrawal of reception conditions if an
applicant withdraws his/her application.
If an asylum applicant withdraws the application in accordance with the
Directive on asylum procedures, s/he will no longer fulfill the definition of
an ‘asylum applicant’ according to the Proposal and, therefore, the
provisions of the Proposal will not apply. As such Article 22 (1)(b) is redundant and should be deleted.
Article
22(1)(c)
This
Article provides for the reduction or withdrawal of reception conditions if an
applicant has concealed financial resources and benefited from State provision
of material reception conditions.
ECRE believes that such cases are best dealt with in accordance with
draft Article 19 by which the asylum applicant should contribute to the costs
of his/her reception, and a possible prosecution for fraud under national penal
or administrative law if the concealment of financial resources is found to be
intentional. Furthermore, under no
circumstances should asylum applicants be treated more harshly than nationals
in the same situation. We
propose the deletion of Article
22(1)(c).
Article
22(1)(d)
This
Article provides for the reduction or withdrawal of reception conditions if an
applicant is regarded as a threat to national security or there are serious
grounds for believing Article 1(F) of the 1951 Geneva Convention may
apply. ECRE wishes to point out
that the decision on whether Article 1(F) of the 1951 Convention applies is
an outcome of the asylum procedure. It is a decision, which can only be
taken by the competent authorities responsible for examining the asylum
application. If the asylum
application has been examined, all legal remedies have been exhausted and a
final decision is taken excluding a person from refugee status according to
Article 1(F), then the person is no longer an ‘asylum applicant’
according to Article 2(c) of the Proposal and the provisions of the Proposal do
not apply. Article 22(1)(d) is
legally unsound and should be deleted.
An
applicant who is regarded as a threat to national security is more
appropriately dealt with under national penal law.
ECRE
therefore recommends the deletion
of Article 22(1)(d).
Article
22(2)
This
Article provides for the reduction or withdrawal of reception conditions where
an applicant is violent towards a person in an accommodation centre. ECRE would suggest that such cases are
more appropriately dealt with under national criminal law. ECRE recommends the deletion of this
Article.
Article
22(3)
This
Article provides for the reduction of reception conditions when an applicant
prevents a minor attending school.
While acknowledging the Commission's intention of promoting full respect
for the right of the child to attend school, ECRE is worried that a reduction
of reception conditions for the applicant will have a direct negative impact on
the child as well. This would contradict the overriding principle of the best
interests of the child, as spelled out in Article 3(1) of the Convention on the
Rights of the Child and in draft Article 24(1) of the Proposal. Such cases should be treated in the
same way that nationals would be treated. ECRE therefore proposes the
deletion of Article 22(3).
Article
22(4-6)
This
Article provides that any reduction of withdrawal of reception conditions
should be based on the personal conduct of the applicant and be
proportional. ECRE would like to
highlight that Article 13(3) which allows exclusion from the labour market as a
sanction for ‘negative behaviour’ could impact on family
members. As a matter of
international law, and notwithstanding our following comments on the other
sections of draft Article 22, Article 22(6) should be amended as follows:
"Emergency health care, health care
that cannot be postponed, accommodation, food and basic social assistance shall
not be reduced or withdrawn under any circumstances."