EN Official Journal of the European Union C 317/110

Opinion of the European Economic and Social Committee on the ‘Proposal for a Directive of the European Parliament and of the Council laying down minimum standards for the reception of asylum seekers’

COM(2008) 815 final — 2008/0244 (COD)

(2009/C 317/21)

Rapporteur: Ms LE NOUAIL-MARLIÈRE

On 1 April 2009, the Council decided to consult the European Economic and Social Committee, under Article 262 of the Treaty establishing the European Community, on the

Proposal for a Directive of the European Parliament and of the Council laying down minimum standards for the reception of asylum seekers (recast)

COM(2008) 815 final — 2008/0244 (COD).

The Section for Employment, Social Affairs and Citizenship, which was responsible for preparing the Committee's work on the subject, adopted its opinion on 25 June 2009. The rapporteur was Ms Le Nouail-Marlière.

At its 455th plenary session, held on 15 and 16 July 2009 (meeting of 16 July 2009), the European Economic and Social Committee adopted the following opinion by 154 votes to two, with four abstentions.

1. Conclusions

1.1 Being concerned that an excessively restrictive or unwelcoming asylum framework constitutes indirect support for some of the world’s most authoritarian and least democratic regimes, the Committee endorses the recast and improvement of the directive on reception standards, but reiterates a number of recommendations made in its previous opinions, and in particular in its response to the Green Paper on the future Common European Asylum System (1) and the policy plan (2).

With regard to the reception of asylum seekers, the proposal for a recast of the directive should promote ‘common’ rather than ‘minimal’ standards which should constitute safeguard clauses for the standards applied by those Member States which do most to respect the fundamental rights of applicants for international protection, refugee status or subsidiary protection, particularly regarding:

— guaranteed admission to the country,

— freedom of choice as to where to lodge the application for asylum and protection,

— consideration of refugee convention status first and then subsidiary protection, if and only if the conditions for the first status are not met,

— the principle of no forcible repatriation if the applicant’s life would be in danger in his country of origin or last transit country,

— the suspension of an expulsion decision until the competent court has issued its decision, in order to make the right of appeal fully effective, in accordance with the case law of the European Court of Human Rights (see point 4.8.1 below),

— the special protection required by minors or presumed minors,

— respect for individual rights and particularly the right of women to lodge an application for protection.

1.2 With regard to minors, the Committee would like it to be systematically stated that ‘the best interests of the child shall be a primary consideration’, in reference to Article 3(1) of the International Convention on the Rights of the Child (Article 22(1)).

1.3 Holding and detention should always be a last resort after all alternatives have been exhausted, and should never be applied without a court order, taking account of the right to legal defence, and in accordance with the Convention for the Protection of Human Rights and Fundamental Freedoms.

1.4 Competent NGOs active in the field of human rights should always have access to applicants for protection, and applicants should always have access to legal aid and humanitarian assistance from States or NGOs.

1.5 The Committee encourages the Member States to accelerate negotiations with a view to the adoption of this recast by co-decision with the European Parliament, which will enable the European Union to improve its capacity to respond appropriately to requests for protection from asylum seekers.

1.6 The Committee approves the proposal to establish a Support Office to assist Member States on matters of asylum and international protection, if this office helps to accelerate the distribution of reception and protection obligations among the Member States of the EU, to bring transparency with regard to the reception of applicants for asylum and international protection, to make use of the experience of associations and organisations involved in assisting applicants for asylum and international protection and to improve the process of examining individual applications.

2. Introduction and summary of the Commission proposal

2.1 The Common European Asylum System (CEAS) has developed over two separate phases. The first of these began at the Tampere European Council (1999), following the adoption of the Treaty of Amsterdam, which gave an EU dimension to immigration and asylum policies. This first phase ended in 2005.

2.2 In the first phase progress was made on developing a number of asylum directives, improving the level of cooperation between Member States, and on some aspects of the external dimension of asylum.

2.3 The second phase of building the CEAS began with the Hague Programme (adopted in November 2004), which sets 2010 as the deadline for achieving its main objectives, by adopting instruments and measures aimed at greater harmonisation and an improvement in CEAS protection standards.

2.4 As a preliminary to the adoption of new initiatives, in 2007 the Commission produced a Green Paper (3) to launch a debate among the various institutions, the Member States and civil society (4). The Commission then used this as a basis for its policy plan on asylum. The latter set out a roadmap for the coming years, listing the measures that the Commission intended to take in order to implement the second phase of the CEAS.

2.5 This is the backdrop to the Commission's proposed recast of the directive originally adopted by the Council on 27 January 2003, which was the subject of a Committee opinion (5).

2.6 The main objective of the proposal is to ensure higher standards of treatment for asylum seekers with regard to reception conditions, in order to guarantee a decent standard of living, in line with international law. Further harmonisation of national rules on reception conditions is also required in order to limit the phenomenon of secondary movements of asylum seekers amongst Member States, insofar as such movements are generated by divergent national reception polices.

2.7 The proposal extends the scope of the directive in order to include applicants for subsidiary protection. It is intended to apply to all types of asylum procedures and to all geographic areas and facilities hosting asylum seekers.

It also aims to facilitate access to the labour market. It provides that asylum seekers will be able to access employment after a period of maximum six months after lodging an application for international protection and stipulates that the imposition of national labour market conditions must not unduly restrict access to employment for asylum seekers.

2.8 With a view to ensuring that access to material reception conditions ensures ‘a standard of living adequate for the health of the asylum seeker and capable of ensuring his/her subsistence’, the proposal obliges Member States to take into consideration the level of social assistance provided for nationals when granting financial support to asylum seekers.

2.9 The proposal ensures that detention will be allowed only on exceptional grounds laid down in the directive.

2.10 The proposal also guarantees that detained asylum seekers are treated in a humane and dignified manner with respect for their fundamental rights and in compliance with international and national law.

2.11 The proposal ensures that national measures are put in place in order to identify specific needs immediately.

Moreover, the proposal incorporates numerous safeguards in order to ensure that reception conditions are specifically designed to meet asylum seekers’ special needs.

2.12 With regard to the implementation and improvement of national systems, the proposal contains measures designed to ensure the continuity of monitoring and to strengthen the Commission's role as the guardian of EU legislation.

3. General comments

3.1 The Committee endorses the improvements which the Commission's proposals should entail for the reception conditions for people seeking international protection and the will to harmonise national arrangements and broaden the scope of application to include subsidiary protection. However, it draws attention to the need to examine the situation of each applicant individually, also when determining which Member State is responsible for the exhaustive examination of the application, and to consider subsidiary protection if and only if the conditions for the first convention status (refugee) are not met.

3.2 The Committee supports the aim of securing a dignified standard of living for asylum seekers and facilitating their integration and settlement within the host country (6), by offering access to the labour market within a maximum of six months, without undue national restrictions (Article 15(2)), and with absolute respect for the fundamental rights of applicants for asylum or international protection, as derived from European law implementing the Universal Declaration of Human Rights, in particular Article 23(1) (7), the International Covenant on Economic, Social and Cultural Rights (Articles 2, 9, 10, 11 and 12), ILO Convention 118 concerning Equality of Treatment of Nationals and Non-Nationals in Social Security, the European Social Charter, the Charter of Fundamental Rights and the Geneva Convention relating to the Status of Refugees (8). The same applies to the level of social assistance granted and housing conditions differentiated according to individuals’ specific needs and to the broader definition of applicants’ family links as well as to the need to give them due consideration when examining applications.

3.3 Regarding the general principles and the international guidelines that underlie the recognition and defence of the fundamental rights of people in distress and the detention of those seeking international protection under the Geneva Convention, and in particular Article 26, which refers to freedom of movement, and Article 31 on refugees unlawfully in their host country (9), and as reiterated by the Commission in the proposal’s 16th recital, no one may be detained simply because they have requested protection. Detention should therefore be considered to be an option only in duly justified cases of absolute necessity, and must not be considered to be acceptable practice in circumstances that do not involve fraudulent or dilatory intent on the part of the applicant.

3.4 The Committee welcomes the measures recommended by the directive with a view to meeting the specific needs of minors. It would nevertheless note that the reference to the 1989 United Nations Convention on the Rights of the Child would be clearer were systematic reference made to Article 3(1) (10) in addition to Article 37 (11), and not only to the notion of the ‘best interests of the child’, which has been known to give rise to differing interpretations.

3.5 Lastly, the Committee is particularly concerned about the systematic introduction of possibilities for asylum seekers or refugees to appeal against judicial or administrative decisions concerning them. It notes nevertheless that these appeals must systematically be considered to be suspensive in order to be fully effective.

4. Specific comments

4.1 On information (Chapter II - Article 5)

4.1.1 The Committee recommends that the following text be added: ‘Member States shall inform the members of the families of asylum seekers of their right to submit independent applications’.

4.2 On detention and detention conditions (Chapter II - Articles 8 to 11)

In the Committee's view, the treatment of asylum seekers should be founded as a general rule on Article 7 of the draft directive, which states that priority should be given to the principle of the free movement of people and to alternatives to detention.

4.2.1.1 In other words, asylum seekers (Article 8) may be detained in exceptional circumstances only, namely:

— if the request for asylum is made after an expulsion measure has already been issued to the asylum seeker;

— in order to make a decision on the asylum application as part of a procedure designed to determine the person's right to enter the country, in the case of placement in a detention centre or waiting area.

4.2.1.2 The Committee takes the view that with the exception of these two cases, no asylum seeker should be detained and that a decision to detain someone should never be justified by the need to ‘determine, ascertain or verify his identity or nationality’, and even less to ‘determine the elements on which his application for asylum is based which in other circumstances could be lost’.

4.2.1.3 The EESC proposes to amend the wording of recast article 9(5) to read: ‘The detention shall be reviewed ex officio by a judicial authority at reasonable intervals of time and on request of the asylum-seeker concerned, whenever circumstances arise or new information becomes available which affects the lawfulness of detention.’

4.2.2 According to the EESC, conditions of detention should ensure humane treatment with respect for the inherent dignity of the person. As for conditions of detention (Article 10) in specialised centres other than prison accommodation, it is right that an asylum seeker should not be placed with other third country nationals not having requested asylum without the former's written consent (Article 10 (1)).

Furthermore, in the light of the diverse means of detention in the various countries of the European Union, it should be noted that the UNHCR and other organisations may communicate with asylum seekers and visit them in all detention areas (Article 10(2)). The same terminology should be used in Article 10(3).

4.2.3.1 Reiterating its recommendation made in connection with the proposal for a recast of the Dublin 2 Regulation on Criteria and mechanisms for determining the Member State responsible for examining an application for international protection lodged in one of the Member States by a third-country national or a stateless person (12), that information of the type described in Article 10(3) should be given to an applicant for international protection in his/her language or a language that the person concerned acknowledges understanding, where necessary with the assistance of a sworn interpreter or legal translation.

4.2.4 In the interests of consistency in the wording, the term ‘applicants for international protection’ should replace ‘asylum seekers’ in Article 11 (4).

4.2.5 The EESC welcomes the prohibition on detention of unaccompanied minors (recast Article 11(1)) and supports the confirmation that persons with special needs shall in principle not be detained (in recast Article 11(5)).

4.3 On the schooling of minors, employment and vocational training (Chapter II – Articles 14 to 16)

The draft directive aims to facilitate and accelerate the integration of asylum seekers in their host countries. The schooling of minors and access to employment and vocational training play a large role in this.

4.3.1.1 For this reason, the Committee believes that minors should be integrated into the education system as soon as possible, and that the three month period is unnecessarily long and should be reduced to two months (Article 14(2)).

The Committee approves of the Commission's initiative to enable asylum seekers to access the labour market within a maximum period of six months and believes it is necessary to reduce the margin for interpretation of Article 15(1) and specify that ‘Member States shall ensure that applicants have real access to the labour market’, which implies access to the social services that support job seekers.

4.3.2.1 The Committee recognizes that reception arrangements can be beneficial both to the State and to the asylum-seeker where they provide an opportunity for the asylum-seeker to attain a degree of self-reliance.

4.3.3 Recalling its opinion (13) on the first reception directive, the Committee would stress that ‘Training should be offered as widely as possible for third-country nationals in the care of a Member State. This is essential on two counts. Firstly, any training which these people receive will benefit the development of their country of origin if they return there. (…). Secondly, if these people remain in a Member State, the training they have received will make it easier for them subsequently to find employment there’. On the same note, it believes that Member States should be reined in when it comes to their interpretation of Article 16, by using a more direct and more complete wording: ‘Member States shall allow and organise access to vocational training for asylum seekers irrespective of whether they have access to the labour market’.

4.4 On the general rules on material reception conditions and health care (Article 17)

4.4.1 The Committee recommends that it be made clear that the rules continue to apply during appeals procedures.

4.4.2 The EESC supports the recast Article 17(5), which should raise the standard of material reception conditions in those Member States where current levels are insufficient.

4.5 On the reduction or withdrawal of material reception conditions (Chapter III – Article 20)

4.5.1 The Committee is concerned about this measure in cases where the asylum seeker ‘has already lodged an application in the same Member State’. Experience would suggest that an initial request may be followed by a request to review the case, justified by the production of additional information on the asylum seeker's situation or by the production of additional documents. It would therefore be very harsh for the asylum seeker to be excluded from material reception conditions. The Committee therefore calls for this point to be removed (Article 20 (1) (c)).

Furthermore, this measure seems to contradict the spirit behind the recasting of the regulation ‘establishing the criteria and mechanisms for determining the Member State responsible for examining an application for international protection’ (14) and the planned provisions.

4.5.2 The EESC welcomes the proposals to reduce the possibilities for withdrawing reception conditions in recast article 20(2) and the proposal to strengthen the provision for ensuring that minimal material reception conditions are provided to all asylum-seekers in recast article 20(4).

4.6 On the provisions for persons with special needs (Chapter IV – Articles 21 to 24)

Where minors are concerned, the Committee would like to see systematic mention of the fact that the ‘best interests of the child’ are to be understood with reference to Article 3 (1) of the UN Convention on the Rights of the Child (Article 22(1)).

4.7 On victims of torture and violence (Article 24)

4.7.1 The Committee proposes that victims of torture or violence and persons suffering physical or mental health problems be cared for in an appropriate hospital environment.

4.7.2 They should be allowed access, if necessary, to specialised centres. General and specialised medical staff must have access to reception and detention centres and applicants for international protection must be able to benefit from diagnostic skills and specific care provided by qualified health professionals recognised as competent by the health system of the host State.

4.7.3 Although the EC has not proposed amendments to Article 13 which allows Member States to require medical screening of applicants on public health grounds, the Committee wishes to recall that mandatory HIV testing violates a number of human rights, in particular the right to privacy (15). Testing should not be a precondition for allowing entry to territory or asylum procedures of persons seeking international protection. More generally, medical screening should be accompanied by appropriate information provided in a language the applicant understands (see 4.2.3.1) and should provide guarantees for consent, counselling and confidentiality, as well as appropriate medical follow-up and treatment.

4.8 On appeals (Chapter V – Article 25)

4.8.1 The Committee agrees that Member States should provide asylum seekers with legal assistance (Article 25(2)) but believes that it should be specified that appeals have suspensive effect (Article 25 (1)) to avoid running the risk of rendering them meaningless (16).

Brussels, 16 July 2009. The President of the European Economic and Social Committee Mario SEPI

(1) See EESC opinion of 12.3.2008 on the Green Paper on the future Common European Asylum System, rapporteur: Ms Le Nouail Marlière (OJ C 204, 9.8.2008).

(2) See EESC opinion of 25.2.2009 on the Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions - Policy plan on asylum: an integrated approach to protection across the EU, rapporteur: Mr Pariza Castaños, co-rapporteur Ms Bontea (OJ C 218, 11.9.2009).

(3) COM (2007)301 final, submitted on 6 June 2007.

(4) On 12 March 2008, the EESC issued an opinion on the Green Paper on the future Common European Asylum System, rapporteur: Ms Le Nouail-Marlière (OJ C 204, 9.8.2008).

(5) EESC opinion of 28 November 2001 on the Proposal for a Council Directive laying down minimum standards on the reception of applicants for asylum in Member States, rapporteur: Mr Mengozzi and co-rapporteur: Mr Pariza Castaños (OJ C 48, 21.2.2002).

(6) See EESC opinion of 28 November 2001 on the Proposal for a Council Directive laying down minimum standards on the reception of applicants for asylum in Member States, rapporteur: Mr Mengozzi and co-rapporteur: Mr Pariza Castaños (OJ C 48, 21.2.2002).

(7) ‘Everyone has the right to work, to free choice of employment, to just and favourable conditions of work and to protection against unemployment.’

(8) 1951.

(9) Geneva Convention, Article 31: ‘The Contracting States shall not impose penalties, on account of their illegal entry or presence, on refugees who, coming directly from a territory where their life or freedom was threatened in the sense of article 1, enter or are present in their territory without authorization, provided they present themselves without delay to the authorities and show good cause for their illegal entry or presence.’

(10) Article 37 refers to detention in particular.

(11) Convention on the rights of the child; Article 3 (1): ‘In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.’

(12) See page 115 of this Official Journal.

(13) See EESC opinion of 28 November 2001 on the Proposal for a Council Directive laying down minimum standards on the reception of applicants for asylum in Member States, rapporteur: Mr Mengozzi and co-rapporteur: Mr Pariza Castaños (OJ C 48, 21.2.2002) – Directive 2003/9/EC.

(14) COM(2008) 820 final, which is the subject of an EESC opinion of 16.7.2009 on the Proposal for a Regulation of the European Parliament and of the Council establishing the criteria and mechanisms for determining the Member State responsible for examining an application for international protection lodged in one of the Member States by a third-country national or a stateless person (recast), rapporteur: Ms Le Nouail Marlière (CESE 443/2009 - SOC/333. Is contained in the same publication).

(15) As laid down, inter alia, in EHCR Article 8.

(16) Gebremedhin v. France; ECHR judgment of 26 April 2007: Convention for the Protection of Human Rights and Fundamental Freedoms of the Council of Europe, 1950, Articles 3 and 13, irreversible nature of the damage liable to be caused if the risk of torture or ill-treatment materialises, remedies of a suspensive effect; paragraphs 66 and 67 http://cmiskp.echr.coe.int/tkp197/view.asp?action=html&documentId=816069&portal=hbkm&source=externalbydocnumber&table=F69A27FD8FB86142BF01C1166DEA398649.