EUROPEAN COUNCIL

ON REFUGEES AND EXILES

CONSEIL EUROPEEN

SUR LES REFUGIES

ET LES EXILES

EU.OFFICE

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

Background

ECRE urges MS to provide the same reception conditions from the moment that an asylum claim is received throughout the period during which the application and any appeals are examined, until a final decision has been made. The proposal should apply to all asylum seekers, including those whose applications are being processed under admissibility and accelerated procedures. Where another State is deemed to be responsible for the examination of the asylum application, under the Dublin Convention or another such treaty or readmission agreement, the period of reception extends until the moment of departure to that State.

During this time certain material provisions should be made available to each individual asylum seeker or asylum seeking family; this is the concern and responsibility of the receiving State.

ECRE believes that adequate conditions of reception are essential to the functioning of a fair and efficient asylum procedure. To enable an asylum seeker to be physically and mentally equipped to deal with the asylum interview process, reception must embrace more than just non-refoulement and the supply of most basic needs. It must ensure the independence and personal dignity of each asylum seekers.

Applications at the border

The standard of reception should not be dependent upon the time or place that the asylum claim is lodged. In other words, there should be no discrimination against asylum seekers who do not apply at the border or at the earliest opportunity, as there are often valid reasons for delayed or “in-country” applications.

Dublin Convention, re admission, admissibility and accelerated procedures

Asylum seekers whose applications are processed under the Dublin Convention, or are considered to be manifestly unfounded, or otherwise undeserving of a thorough examination in the normal asylum procedure, nevertheless require a standard of reception which fully respects their human rights as persons within the jurisdiction of the receiving State and which does not in any way obstruct or deter them from pursuing their case, or from appealing against negative decisions.

Socio-economic context

As a general rule, standards of reception should reflect the context of the host country’s society and economy, while always respecting the asylum seeker’s human rights.

In European countries where there is not a developed welfare system, or only very limited provisions, the international community should nevertheless explore ways to finance the assistance of asylum seekers. Such international financial assistance would be justified on the grounds that asylum seekers usually do not have the same extended family networks to support them as the local population, are likely to suffer discrimination, may lack the language proficiency necessary to gain employment, and are often particularly vulnerable as a result of traumatic experiences, uprooting and/or medical conditions. ECRE refers to its support for the establishment of the European Refugee Fund as a gesture of responsibility sharing. ECRE believes that the European Refugee Fund has a key role in the implementation of European Union wide minimum standards of reception provision and will be monitoring its effectiveness.

Reception facilities at borders

Asylum seekers who lodge their applications at border points and are accommodated in facilities at such points should be provided with all necessary assistance, including access to legal representation and medical services. If such facilities only provide basic necessities, such as food and shelter, no asylum seeker should be forced to remain there for a prolonged period but should instead be moved to a reception facility more fully equipped with other amenities.

ECRE maintains that the reception of asylum seekers in ‘closed’ facilities at many European border points amounts to detention. It should be avoided and, where resorted to in exceptional cases, covered by the same legal safeguards as other forms of deprivation of liberty in the host state.

Chapter III

Material Reception Conditions

Article 15 - General Rules

Article 15(1)

ECRE welcomes the granting of material reception conditions to applicants of asylum during all forms of procedures. We fully endorse the arguments for a rights-based approach as put forward by the Commission in its explanatory memorandum and in paragraph 2 of Article 15. We note, however, with concern that reception conditions may end as soon as a negative (first or second instance) decision has been notified to the applicant. This might leave a gap in the provision of reception conditions in three scenarios: from the moment of notification of a negative decision until the applicant lodges an appeal; or until a decision to have an unsuccessful applicant removed from the territory is enforced; or the applicant leaves the territory voluntarily. We note that in the latter two cases, the person concerned ceases to be an applicant for asylum and falls outside the scope of the Directive under normal rules. However, we emphasise that as long as an applicant still holds a right to appeal against a negative decision, s/he remains an ‘applicant for asylum’ and therefore, should benefit from all the provisions of the Directive. Furthermore ECRE position is that “Applicants for asylum shall be allowed to remain on the territory of the Member State in which the application for asylum has been made or is being examined for as long as a final decision has not been taken.”

We therefore ask Member States to guarantee the provision of all material reception conditions until a final decision, i.e. a decision in respect of which all possible remedies under the Directive on Asylum Procedures have been exhausted, is taken on the application.

To this end, we suggest re-drafting Article 15(1)(a) as follows:

"Member States shall ensure that material reception conditions are available to applicants and their accompanying family members throughout the regular, admissibility and accelerated procedures up to the moment a final decision is notified. A final decision is a decision in respect of which all possible remedies under Council Directive …/…/EC on minimum standards on procedures in Member States for granting and withdrawing refugee status have been exhausted.”