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
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.
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.
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).
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).
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.
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).
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."
 Brussels 3.4.2001, COM (2001) 181 final 2001/0091 (CNS)