Commission staff working document accompanying the proposal for a directive of the European Parliament and of the Council laying down minimum standards for the reception of asylum seekers - Impact Assessment {COM(2008) 815 final} {SEC(2008) 2945}
Date: 2008-12-03
Institutions: European Commission
Subjects: admission of aliens, application of EU law, basic needs, fundamental rights, right of asylum, rights of aliens

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COMMISSION OF THE EUROPEAN COMMUNITIES 

Brussels, 3.12.2008 
SEC (2008) 2944 

COMMISSION STAFF WORKING DOCUMENT 

accompanying the 

Proposal for a 

DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL 

laying down minimum standards for the reception of asylum seekers 

Impact Assessment 

{COM(2008) 815 final} 
{SEC(2008) 2945} 

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TABLE OF CONTENTS 

Lead DG:  Justice, Freedom and Security ........................................................................... 4 

1. 

PROCEDURAL ISSUES AND CONSULTATION OF INTERESTED PARTIES... 4 

1.1. 

Background .................................................................................................................. 4 

1.1.1.  Policy context............................................................................................................... 4 

1.1.2.  Organisation and timing, consultation and expertise ................................................... 4 

1.2. 

1.3. 

2. 

The Impact Assessment Board..................................................................................... 5 

State of play: Existing legal instruments...................................................................... 6 

SECTION 2: PROBLEM DEFINITION ..................................................................... 6 

2.1. 

Scope of the problem ................................................................................................... 6 

2.2.  What is the issue or the problem that may require action? .......................................... 7 

2.2.1.  The Reception Conditions Directive does not always guarantee adequate standards of 
treatment for asylum seekers........................................................................................ 7 

2.2.2.  Different standards of treatment, between vulnerable asylum seekers and vulnerable 

nationals, could lead to discrimination....................................................................... 18 

2.2.3.  Secondary movements of asylum seekers and refugees applying for international 

protection in more than one Member State impose an unfair strain on national 
administrations and on asylum seekers ...................................................................... 20 

2.3. 

2.4. 

How would the problem evolve, all things being equal? ........................................... 21 

Does the EU have the power to act? .......................................................................... 22 

2.4.1.  The EU's right to act................................................................................................... 22 

2.4.2.  EU added value and the principle of subsidiarity ...................................................... 23 

2.5. 

Consultation with Stakeholders.................................................................................. 25 

3. 

3.1. 

3.2. 

3.3. 

4. 

4.1. 

4.2. 

4.3. 

SECTION 3: OBJECTIVES ...................................................................................... 26 

Global objectives........................................................................................................ 26 

Specific objectives ..................................................................................................... 26 

Operational objectives................................................................................................ 26 

POLICY OPTIONS ................................................................................................... 27 

Option 1: Status Quo.................................................................................................. 27 

Detention .................................................................................................................... 30 

To guarantee that the needs of vulnerable persons and other persons with special 
needs are timely and adequately addressed................................................................ 30 

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4.4. 

4.5. 

4.6. 

5. 

5.1. 

5.2. 

5.3. 

5.4. 

5.5. 

6. 

6.1. 

6.2. 

6.3. 

7. 

To ensure adequate standards for material reception conditions ............................... 31 

Facilitate access to the labour market ........................................................................ 32 

Define the scope of application of the Directive........................................................ 33 

Assessment of policy options and identification of preferred policy option ............. 33 

Detention .................................................................................................................... 33 

To guarantee that the needs of vulnerable groups are timely and adequately 
addressed .................................................................................................................... 35 

To ensure adequate standards for material reception conditions ............................... 35 

Facilitate Access to the Labour Market ..................................................................... 37 

Further clarify the scope of application of the Directive and extend it to cover 
subsidiary protection applicants................................................................................. 38 

Assessment of Preferred Policy Option ..................................................................... 41 

Budgetary and Labour Market impacts of envisaged measures................................. 41 

Other Impacts:............................................................................................................ 45 

Assessment and considerations of proportionality and EU added value ................... 49 

Monitoring and Evaluation ........................................................................................ 50 

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Lead DG: 

Justice, Freedom and Security 

1. 

PROCEDURAL  ISSUES  AND  CONSULTATION  OF  INTERESTED 
PARTIES 

1.1. 

Background 

1.1.1.  Policy context 

Work  on  the  creation  of  a  Common  European  Asylum  System  (CEAS)  started 
immediately  after  the  entry  into  force  of  the  Treaty  of  Amsterdam  in  May  1999,  as 
advocated  by  the  Tampere  European  Council.  During  the  first  phase  of  the  CEAS 
(1999-2005), the goal was to harmonise Member States' legal frameworks on the basis 
of common minimum standards. The Reception Conditions Directive was the first of 
five pieces of EU asylum legislation flowing from the Tampere Conclusions. It aims 
to establish reception conditions that will normally suffice to provide asylum seekers 
with  a  'dignified  standard  of  living  and  comparable  living  conditions  in  all  Member 
States'.  

Since the Directive was adopted during the initial stages of creation of the CEAS and 
discussed under unanimity in the Council, the level of ambition of the final text was 
rather  low  and  only  reached  the  lowest  common  denominator.  This  outcome  is  also 
reflected in the Commission's Evaluation Report on the application of the Reception 
Conditions Directive, which highlights a number of deficiencies notably with regard 
to  access  to  material  reception  conditions  and  health  care,  freedom  of  movement, 
treatment of vulnerable persons such as minors and victims of torture, and access to 
employment.  

The  Hague  Programme  invited  the  Commission  to  conclude  the  evaluation  of  the 
first-phase  legal  instruments  and  to  submit  the  second-phase  instruments  and 
measures  to  the  Council  and  the  European  Parliament  with  a  view  to  their  adoption 
before  the  end  of  2010.  The  proposal  to  amend  the  Reception  Conditions  Directive 
thus  seeks  to  address  adequately  the  deficiencies  identified  during  the  first  phase  of 
the asylum legislation.  

1.1.2.  Organisation and timing, consultation and expertise 
The report issued by the Commission on 26 November 20071 (the Evaluation Report), 
thereby  fulfilling  its  obligation  under  Article  25  of  the  Directive,  provided  an 
overview  of  the  transposition  and  application  of  the  Directive  by  Member  States, 
highlighting  points  where  clarification  of  the  existing  provisions  and/or  further 
harmonisation  is  required.  The  Evaluation  Report  was  prepared  on  the  basis  of  two 
studies  conducted  to  gather  the  necessary  information  on  the  implementation  of  the 
Directive.2  

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COM (2007) 745 
European Migration Network 'Reception Systems, their capacities and the social situation of 
asylum  applicants  within  the  reception  system  in  the  EU  Member  States',  and  Odysseus 
Academic Network Report, Comparative Overview of the Implementation of Directive 2003/9 
of 27 January 2003 laying down Minimum Standards for the Reception of Asylum Seekers in 

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Additionally, the Commission considered that before proposing any new initiative, it 
needed to engage in in-depth reflection and debate with all the relevant stakeholders 
on  the  future  architecture  of  the  CEAS.  It  therefore  presented,  on  6  June  2007,  a 
Green  Paper3  on  the  future  of  the  CEAS  aiming  to  identify  possible  options  for 
shaping the second phase of asylum legislation and incorporating a number of areas 
for  consideration,  including  reception  conditions.  The  response  to  the  public 
consultation  encompassed  89  contributions  from  a  wide  range  of  stakeholders4, 
including  20  Member  States,  regional  and  local  authorities,  the  Committee  of  the 
Regions  and  the  European  Economic  and  Social  Committee,  UNHCR,  academic 
institutions, political parties and a large number of NGOs.  

Furthermore, experts' meetings were organised between December 2007 and March 
2008  with  academics5,  Member  States6,  NGOs  and  UNHCR7  and  Members  of  the 
European  Parliament8  in  order  to  seek  their  opinion  on  further  amelioration  of 
reception  condition  standards.  Member  States  were,  in  addition,  consulted  on  the 
areas the Commission envisages to address in the second phase of asylum legislation 
in  relation  to  reception  conditions,  during  the  Immigration  and  Asylum  Committee 
meeting held on 5 March 2008.  

Preparatory  to  the  Impact  Assessment,  the  Commission  arranged  for  an  external 
study9  to  be  conducted.  The  problem,  objectives  and  policy  options  assessed  were 
based on the Evaluation Report in the light of an analysis of the contributions to the 
Green  Paper  and  the  conclusions  of  the  experts'  meetings  as  well  as  contributions 
from the contractor. Important data were collected also from literature reviews mainly 
in  the  form  of  reports  by  UNHCR,  ECRE  and  Save  the  Children.  The  report  also 
incorporates  comments  submitted  during  the  inter-service  steering  group  meeting 
attended by representatives of the RELEX, SANCO, EAC and ELARG Directorates-
General, which took place on 20 June 2008. The Directorates-General consulted will 
also  have  the  opportunity  to  submit  their  comments  on  the  final  text  of  the 
Commission’s proposal to amend the Reception Conditions Directive during the Inter-
Service Consultation procedure.  

1.2. 

The Impact Assessment Board 

The  Impact  Assessment  was  revised  to  take  into  account  the  opinions  issued  by  the 
Impact Assessment Board (IAB) on 26 September 2008 and 13 October 2008. All the 

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the EU Member States (this impact assessment uses the updated version of this report that will 
be made available as soon as possible on the EUROPA website).  
COM (2007) 301 
The 89 contributions received are available at: 
http://ec.europa.eu/justice_home/news/consulting_public/gp_asylum_system/news_contributi
ons_asym_ystem_e.htm.  
This meeting took place on 7 December 2007 
Meetings took place in the context of contact committees on 11, 12, 25 February and in the 
Immigration and Asylum Committee of 5 March 2008 
18 February 2008 
5 March 2008  
Impact assessments on certain instruments of the Common European Asylum Policy, 
Ernst&Young Financial Business Advisors S.P.A. (Specific contract No JLS/2007/A1/xx). 
The external study will be published at: 
http://ec.europa.eu/dgs/justice_home/evaluation/dg_coordination_evaluation_annexe_en.htm  

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comments  made  by  the  IAB  were  taken  into  consideration  in  the  revised  Impact 
Assessment:  the  budgetary  and  employment  impacts  of  the  proposed  measures  are 
further quantified and some data on costs or numbers of asylum seekers affected are 
provided; the principle of subsidiarity is elaborated with a view to better justifying the 
necessity  and  added  value  of  EU  action,  and  the  interaction  of  this  principle  with 
fundamental rights is further developed; systematic reference is made to the number 
of Member States affected by the various parts of the proposal.  

1.3. 

State of play: Existing legal instruments 

The Reception Conditions Directive is the only existing legal instrument at EU level 
dealing with the reception of asylum seekers within EU territory.  

At international level, the Geneva Convention relating to the Status of Refugees of 28 
July  1951,  as  supplemented  by  the  New  York  Protocol  of  31  January  1967  (the 
Refugee Convention) provides for certain reception standards for those lawfully in the 
territory  of  the  contracting  parties.  It  specifically  provides  inter  alia  for  the  right  to 
wage-earning employment, the right to self-employment, access to housing, access to 
the  labour  market  and  the  right  to  education.  The  Reception  Conditions  Directive 
refers to the Refugee Convention and states that, at its special meeting in Tampere on 
15 and 16 October 1999, the European Council agreed to work towards establishing a 
CEAS based on full and inclusive application of the Refugee Convention.  

Respect for fundamental human rights is always to be taken into consideration when 
implementing  asylum  policies.  The  right  to  liberty  and  security,  protection  against 
torture  and  inhuman  and  degrading  treatment  or  punishment,  the  prohibition  of 
discrimination, the right to an effective remedy, the right to a family life and the rights 
of  the  child,  as  prescribed  under  international  human  rights  law,  apply  to  all  human 
beings irrespective of their residence status.  

2. 

SECTION 2: PROBLEM DEFINITION 

2.1. 

Scope of the problem  

Apart  from  a  slight  increase  between  1996  and  2002,  fuelled  by  further  armed 
conflicts in the former Yugoslavia, in the last 15 years (1992-2007) there has been a 
substantial  and  sharp  drop  in  the  number  of  asylum  applications  in  the  EU: 
considering  only  EU  15,  for  example,  the  number  of  applications  fell  from  672,385 
recorded in 1992 to 161,890 in 2007.  

Taking  a  closer  look  at  the  most  recent  trends,  since  2003  the  number  of  asylum 
seekers  in  the  EU  has  almost  halved:  from  a  total  of  337,235  asylum  applications 
lodged in EU 27 in 2003 to 186,890 in 2007 (- 45%). Most EU Member States have 
recorded a drop in the number of applications lodged, with a particularly significant 
fall in some of them (e.g. Slovenia  
(-65%),  Austria  (-63%),  France  (-44%)),  while  a  limited  number  of  Member  States 
have witnessed a significant increase in asylum applications: Greece (105%), Sweden 
(37%),  Hungary  (62%)  and  Cyprus  (49%).  It  should  be  noted,  however,  that  the 
figures  for  2007  reveal  an  increase  in  the  numbers  of  those  seeking  protection  in 
Europe.  

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As  stressed  in  the  Commission’s  Policy  Plan  on  asylum,10  refugee  flows  worldwide 
are mainly driven by push factors11 (such as political instability, no/poor rule of law, 
lack of respect for human rights, undemocratic regimes, wars and civil conflicts) and 
consequently,  notwithstanding  the  positive  impact  that  the  EU's  and  the  Member 
States' external policies might have in the long term, it cannot reasonably be expected 
that the above-mentioned push factors will disappear soon. It is therefore necessary to 
ensure  that  protection  can  be  sought  and  obtained  by  third-country  nationals  in  the 
Member  States  of  the  EU,  in  compliance  with  international  obligations  to  which  all 
Member States are party, first and foremost the Refugee Convention of 28 July 1951 
and the related Protocol of 31 January 1967.  

It should be noted that taking into consideration the fact that asylum flows are mostly 
influenced by push factors in the countries of origin, it is extremely difficult to foresee 
how the envisaged Commission measures will affect current asylum trends12. 

2.2.  What is the issue or the problem that may require action?  

As will be illustrated below, the fact that Member States are allowed a wide margin of 
manoeuvre  when  implementing  the  Reception  Conditions  Directive  has  first  and 
foremost  led  to  the  establishment  of  low  reception  standards.  As  a  result,  reception 
conditions at national level may not always guarantee an adequate level of treatment 
for  asylum  seekers,  whereas  in  some  cases  differences  in  treatment  between  asylum 
seekers and nationals could amount to discrimination.  

It  should  be  emphasised  that  low  standards  concerning  the  level  of  social  rights 
granted to asylum seekers raise strong concerns about respect for fundamental rights; 
although  the  Directive  itself  does  not  infringe  international  or  EU  standards  of 
treatment, as emphasised by the Commission's Evaluation Report as well as by reports 
from NGOs the wide margin of discretion granted to Member States in implementing 
its provisions could lead to policies that might be perceived as not being fully in line 
with fundamental rights established by the EU Charter of Fundamental Rights as well 
as  the  International  Covenant  on  Economic,  Social  and  Cultural  Rights,  the  UN 
Convention on the Rights of the Child, and the UN Convention Against Torture.  

Secondly,  the  diversity  of  national  policies  has  not  led  to  a  limitation  of  the 
phenomenon of secondary movement, which was one of the objectives of the current 
Reception Conditions Directive (Recital 8).  

2.2.1. 

–  The  Reception  Conditions  Directive  does  not  always  guarantee  adequate 
standards of treatment for asylum seekers 

As  provided  under  Article  63  of  the  Treaty  establishing  the  European  Community 
(TEC),13 the Reception Conditions Directive aims at guaranteeing minimum reception 

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Policy Plan on Asylum ‘An integrated approach to protection across the EU’ COM(2008) 360 
Pull  factors  may  also  play  a  role  at  a  second  stage,  i.e.  when  the  asylum  seeker  considers 
where to seek protection: the level of benefits granted by a country, the chances of receiving 
protection,  the  existence  of  members  of  his/her  community,  etc.  will  partially  determine  the 
choice of destination for the asylum seeker.  
For more information see Policy Plan 'The Persistence of refugee flows towards the EU', page 
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standards  for  asylum  seekers  for  as  long  as  they  legally  remain  in  the  territory  of  a 
Member State. 

A  number  of  information  sources  highlight  specific  deficiencies  in  relation  to  the 
standard of reception facilities available to asylum seekers. The Green Paper adopted 
by  the  Commission  underlines  the  fact  that  the  wide  discretion  allowed  to  Member 
States in interpreting the key elements of the Directive has had the result of 'negating 
the  desired  harmonised  effect'.14  This  position  is  also  shared  by  the  Commission's 
Evaluation Report, which points to a number of deficiencies in relation to addressing 
the needs of asylum seekers in Member States. Various stakeholders such as national 
and  international  institutions  and  organisations,  including  UNHCR,  NGOs  and 
individuals,  have  also  submitted  to  the  Commission  information  indicating  various 
shortcomings in Member States' reception systems.  

The  Directive  sought  to  bring  about  a  level  playing  field  covering  the  different 
national  asylum  policies  in  relation  to  the  reception  of  asylum  seekers.  However, 
because it was adopted during the initial stages of creation of the CEAS and discussed 
under unanimity in the Council, the level of ambition of the final text was rather low 
and  only  reached  the  lowest  common  denominator.  In  this  respect  the  Directive 
provides  for  a  number  of  results-based  obligations  allowing  for  a  wide  degree  of 
discretion in the way these obligations are to be met by Member States. Additionally, 
these results-based obligations are  in some cases  vaguely formulated, which renders 
their monitoring by the Commission a particularly difficult exercise.  

Consequently,  the  lack  of  strictly  and/or  clearly  defined  benchmarks  for  Member 
States’  reception  policies  has  led  to  the  setting  of  standards  of  treatment  below  the 
level  the  Directive  was  intended  to  ensure,  notably  with  regard  to  access  to 
employment,  health  care,  the  level  and  form  of  material  reception  conditions,  free 
movement  rights  and  the  needs  of  vulnerable  persons.  Additionally,  the  legal 
ambiguity  of  the  text  makes  it  difficult  to  clearly  substantiate  infringement  cases 
before the European Court of Justice (ECJ). 

The main deficiencies are manifested in the following areas: 

1. 

Detention of asylum seekers 

According to the EU legislation and international standards, an asylum seeker cannot 
be detained for the sole reason that he/she is an applicant for asylum; detention in this 
respect could only apply under limited and clearly defined circumstances. 

The Reception Conditions Directive and the Asylum Procedures Directive tackle to a 
certain extent the issue of grounds and procedural safeguards of detention15, whereas 

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Article 63 provides for the adoption by the Council of 'minimum standards on the reception of 
asylum seekers in Member States' within a period of five years after the entry into force of the 
Treaty of Amsterdam 
p 5 
The  Reception  Conditions  Directive  states  in  Article  7(3)  that  Member  States  may,  when  it 
proves necessary for example for legal reasons or reasons of public order, confine an applicant 
to  a  particular  place  in  accordance  with  their  national  law.  According  to  Article  18  of  the 
Asylum Procedures Directive, Member States shall not hold a person in detention for the sole 

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both  legislative  instruments  are  silent  on  the  issue  of  conditions  and  length  of 
detention. Deficiencies in the area of law are linked both to the issue of low standards, 
notably  as  far  as  conditions  of  detention  are  concerned,  and  to  diverse  policies,  in 
particular concerning grounds of detention.  

Grounds of detention 

Member States apply numerous grounds for detention, sometimes specific to asylum 
seekers or equally valid for foreigners. Two extreme cases can be emphasised, where 
asylum  seekers  are  detained  only  for  reasons  of  criminal  investigation  or  penal 
sanction  and  where  detention  is  only  applied  at  the  border  if  the  conditions  for 
entering the territory are not fulfilled. Asylum seekers are also detained on grounds of 
a procedural nature such as accelerated procedures, Dublin determination procedure, 
in cases of late or multiple applications, or based on their behaviour. 

It  should  be  noted  in  this  respect  that  the  EU  legislation  on  detention  (namely  the 
Reception  Conditions  Directive  and  the  Asylum  Procedures  Directive)  vaguely 
defines  the  circumstances  under  which  detention  could  be  legitimate  and  provides 
room for different interpretations by Member States in this area of law. Specifically, 
Article  7(3)  of  the  Reception  Conditions  Directive,  under  which  'when  it  proves 
necessary'  an  asylum  seeker  may  be  detained,  could  be  used  to  justify  various 
detention  regimes,  even  in  cases  where  as  a  matter  of  course  a  Member  State  will 
detain any asylum seeker for breach of immigration rules.16 Such policies would seem 
disproportional  taking  into  consideration  the  fact  that  the  great  majority  of  asylum 
seekers  arrive  in  the  EU  irregularly.  Although  ECtHR  (European  Court  of  Human 
Rights)  case-law  does  not  lay  down  exhaustive  rules  on  the  issue  of  grounds  of 
detention, the Committee of Ministers of the Council of Europe Recommendation on 
measures  of  detention  for  asylum  seekers  as  well  as  the  UNHCR  guidelines  on  the 
criteria and standards relating to the detention of asylum seekers should be taken into 
consideration and applied by Member States in this respect. 

Conditions of detention 

It has been brought to the attention of the Commission that detained asylum seekers 
often have to contend with difficult living conditions, are extremely isolated and are at 
times  deprived  of  essential  facilities.17  Although  conditions  of  detention  in  the 
different  Member  States  vary  and  some  detention  centres  provide  acceptable 
accommodation conditions and adequate access to basic facilities, in a large number 
of cases conditions fall below the standards intended by the Directive.  

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reason that he/she is an applicant for asylum and, if detention takes place, Member States shall 
ensure that there is a possibility of speedy judicial review. 
Malta practises systematic detention of all asylum seekers entering the territory irregularly (in 
the sense that they do not have the necessary documents). Detention lasts as long as it takes 
for  the  asylum  application  to  be  determined.  Where  an  application  is  still  pending  after  12 
months, the asylum seeker is released.  
JRS report on 'Detention in the 10 New Member States - A Study of Administrative Detention 
of  Asylum  Seekers  and  Irregularly  Staying  Third  Country  Nationals  in  the  10  New  Member 
States of the EU'  

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In  certain  Member  States  legislative  measures  are  taken  to  avoid  the  detention  of 
certain categories of asylum seekers with special needs,18 although this is not the case 
for  the  majority  of  Member  States.  Detention  of  certain  categories  of  vulnerable 
persons, notably minors, raises great concerns, especially in cases where they are kept 
together  with  adults.  In  a  number  of  Member  States  minors  do  not  have  access  to 
education  when  in  detention.  It  is  hard  to  contest  the  fact  that  under  some 
circumstances detention of vulnerable persons, especially minors, could cause further 
traumatisation and thus even endanger a fair asylum procedure. 

The issue of conditions of detention cannot be separated from the issue of legality of 
detention.  The  ECtHR's  case-law  illustrates  a  clear  link  between  conditions  of 
detention  and  arbitrary  detention.  Specifically,  in  the  Ammur  case,  the  Court  stated 
that 'quality in this sense implies that where a national law authorises deprivation of 
liberty  –  especially  in  respect  of  a  foreign  asylum  seeker  –  it  must  be  sufficiently 
accessible and precise in order to avoid all risks of arbitrariness.19 In Saadi20 the Court 
paid  particular  attention  to  the  conditions  of  detention  like  social  support,  special 
facilities  for  different  groups,  short  period,  etc.,  and  held  that  under  the  specific 
circumstances detention was not arbitrary. 

Moreover,  inadequate  conditions  of  detention  could  amount  to  an  infringement  of 
Article 3 of the ECHR (European Convention on Human Rights). In  this respect, in 
the case of Mubilanzila Mayeka and Kaniki Mitunga21 the Court found that conditions 
of  detention  in  the  case  of  a  minor  were  such  that  they  amounted  to  inhuman  and 
degrading treatment. Finally, the same conclusion was reached in the Dougoz22 case 
where  it  was  upheld  that  conditions  such  as  overcrowding,  insufficient  sanitary  and 
sleeping facilities in combination with duration of detention infringed the Convention. 
The  developing  case-law  of  the  ECtHR  thus  illustrates  that  Member  States  need  to 
pay particular attention to conditions of detention.  

Length of detention 

Length of detention is not regulated within the EU. The maximum period of detention 
is usually one month, but in many Member States detention could be indefinite.23 The 
Saadi case leaves room for questioning detention on account of its length. Although 
the Court concluded that, in that particular case, there was no violation of Article 5 of 

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23 

minors  according  to  legislation  in  Austria,  Finland,  Hungary  and  Lithuania;  unaccompanied 
minors  according  to  legislation  in  Poland;  victims  of  torture,  rape  or  other  serious  forms  of 
psychological, physical or sexual violence according to the legislation of the United Kingdom, 
Finland and Poland; the disabled according to legislation in Poland and to practice in Sweden; 
vulnerable persons in general according to legislation in Finland and in Malta according to the 
policy of the Ministry for the Family and Social Solidarity (those persons will be released after 
a period of detention of around 2 months maximum when their special needs will have been 
identified) 
Ammur v France application no. 19776/92, 25.6.1996, para 50 
Saadi v. the United Kingdom application no. 13229/03, 29.01.08 
Mubilanzila Mayeka and Kaniki Mitunga v Belgium, application no 13178/03, 12.10.06 
Dougoz v Greece, application number 40907/98, 6.03.01 
United  Kingdom,  Finland,  Lithuania,  Bulgaria,  Romania,  Sweden,  Denmark,  Ireland,  Malta, 
Netherlands, Estonia 

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the ECHR, taking into consideration the fact that the applicant was detained for one 
week, the decision could have been different if detention was longer.  

Legal Safeguards 

Article 21(2) of the Directive obliges Member States to grant asylum seekers access to 
legal assistance when they introduce an appeal against negative decisions relating to 
free  movement  on  a  Member  State’s  territory.  However,  the  freedom  given  to 
Member  States  as  to  how  to  implement  the  Directive  is  problematic.  At  least  two 
Member States do not provide statutory entitlement to legal assistance. In other cases, 
only  legal  counselling  is  available  and  legal  representation  of  the  asylum  seeker 
before  the  authority  is  financed  on  the  basis  of  non-state  resources.  In  other  cases 
where  the  state  provides  for  lawyers,  the  system  does  not  work  effectively  due  to  a 
lack  of  training  on  how  to  deal  with  asylum  claims.24  The  need  to  ensure  access  to 
legal assistance is a very important prerequisite to the legality of detention itself. This 
has  been  emphasised  in  the  Saadi  case,  where  the  Court  stressed  the  importance  of 
ensuring access to legal assistance while in detention.  

Additionally,  access  to  information  as  stipulated  under  Article  5  of  the  Reception 
Conditions Directive is also of relevance in cases of detention. This provision obliges 
Member  States  to  inform  asylum  seekers,  within  a  maximum  period  of  fifteen  days 
after they have lodged the asylum application, of at least any established benefits and 
of the obligations with which they must comply relating to reception conditions. This 
obligation does not seem to cover Article 5 of the ECHR, which states that everyone 
who is arrested shall be informed promptly, of the reasons for his arrest and the charge 
against him'. In the light of this it could be submitted that the fifteen-day period within 
which  detained  asylum  seekers  must  be  informed  of  their  rights  and  the  grounds  of 
detention might be too long, aggravating their vulnerable position even more. 

2. 

Vulnerable asylum seekers 

The  Commission  has  identified  the  deficiencies  in  addressing  special  needs  and 
providing  medical  assistance  and  qualified  counselling  to  vulnerable  persons  as  the 
most  serious  concern  in  the  area  of  reception  of  asylum  seekers  in  relation  to  both 
diverse and inadequate standards of treatment. The Directive imposes an obligation on 
Member States to take into consideration the specific situation of vulnerable persons. 
However,  since  it  does  not  specify  how  this  obligation  should  be  met,  there  is  in 
practice  a  lack  of  established  concrete  mechanisms  at  national  level  designed  to 
account for such needs. Additionally, the obligation to 'take into consideration' special 
needs is vaguely formulated, which impedes the Commission's monitoring role in this 
respect. 

Identification mechanisms 

24 

Odysseus report, p. 62 

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11 

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It should be underlined that identifying special needs not only has a bearing on access 
to  appropriate  treatment,  but  could  also  affect  the  quality  of  the  decision-making 
process in relation to the asylum application, especially for traumatised persons.25  

At  least  eleven  Member  States,  some  of  which  receive  large  numbers  of  asylum 
applications, do not lay down a formal procedure for identifying special needs, either 
in legislation or in policy instructions. Six Member States make provision for such a 
mechanism at the beginning of the asylum procedure, but in at least two of those the 
identification  procedures  seem  inadequate.  Moreover  two  Member  States  identify 
special needs only in the case of unaccompanied minors.  

In  those  Member  States  where  such  procedures  have  been  established,  needs  are 
identified at different stages of the asylum procedure: for example, at the time of the 
medical  screening  of  asylum  seekers  (2  Member  States);  upon  lodging  the  asylum 
application  (6  Member  states);  at  the  time  of  the  first  hearing  in  the  context  of  the 
asylum procedure; upon arrival on the territory or at the border; or during an interview 
with a social assistant in the centre. In come cases, therefore, the identification of such 
needs does not occur at the initial stage of the asylum procedure, which could affect in 
a negative way the asylum determination procedure.  

Moreover,  the  mechanisms  established  in  order  to  identify  special  needs  are  not 
usually  proactive.  As  a  consequence,  the  identification  process  starts  only  if  an 
asylum seeker displays behaviour or other signs which could indicate the existence of 
special needs. The lack of proactive mechanisms is confirmed by the fact that in many 
countries  there  is  no  specific  institution  responsible  for  identifying  special  needs. 
Instead, it is left to the many different actors in the procedure (such as border guards, 
reception centre staff, caseworkers, NGOs, the police, etc.) to detect, throughout the 
asylum process, signs or behaviour which could indicate special needs. This approach 
carries  with  it  the  risk  that  special  needs  may  go  undetected  and,  if  not  addressed, 
eventually become aggravated.26 

Access to health care and housing  

Deficiencies have also been detected in relation to access to health care and treatment 
in at least eight Member States. Although this deficiency concerns all asylum seekers, 
it  has  a  particularly  negative  impact  on  persons  with  special  needs,  given  their 
vulnerable situation.  

The  Directive  provides  that  Member  States  shall  ensure  access  to  'necessary  health 
care' that would  include at  least 'emergency care and essential treatment of  illness'. 
Additionally,  it  stipulates  that  'necessary  medical  or  other  assistance'  must  be 

25 

26 

In  Belgium,  the  place  of  registration  is  chosen  according  to  the  needs  of  the  beneficiary 
depending  on  availability;  in  Spain,  vulnerable  asylum  seekers  have  priority  for  access  to 
reception centres for refugees; in Hungary, women on their own and single parents with minor 
children  are  accommodated  in  a  protected  environment;  in  the  Czech  Republic,  vulnerable 
asylum seekers are housed in the protected zones of centres that are more secure than others; 
in Sweden, there are apartments which are specially equipped for disabled persons. 
Odysseus report p. 84 – 90, ECRE proposal for revision of the EC Directive on the Reception 
of  Asylum  Seekers  p.  14,  EURASIL  workshop  on  traumatised  persons  in  the  asylum 
procedure, 20 May 2008 Brussels 

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12 

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available  to  applicants  who  have  special  needs,  and  that  victims  of  torture  and 
violence must receive 'necessary treatment'. Due to the fact that the meaning of these 
notions  is  difficult  to determine, this obligation  has,  in some cases, been  interpreted 
too narrowly, failing to guarantee adequate standards.  

In the main, although the vast majority of Member States in their national legislation 
do recognise the right of asylum seekers to health care, only basic health services are 
granted  to  asylum  seekers.  Moreover,  access  to  psychological  care  and  counselling 
has been particularly problematic in many Member States. Only in a limited number 
of cases have Member States established specific centres for asylum seekers suffering 
from  psychological  disorder,  added  psychologists  or  psychiatrists  to  the  medical 
teams working in reception centres or made health services available externally.  

As  regards  referral  of  asylum  seekers  to  specialists  who  can  provide  care,  the 
reception centre staff and medical staff play a central role in the majority of Member 
States.  However,  it  seems  that  there  is  no  clear  system  for  such  referrals  since,  as 
stated above, there is no clear system of identification of special needs which require 
specialist care.27  

Further obstacles with regard to access to health care could arise from administrative 
procedures  in  Member  States  or  documentation  requirements  that  the  asylum  seeker 
might not be able to fulfil. 

In  relation  to  housing  arrangements,  incidents  reported  by  stakeholders  regarding 
gender-based  violence  within  accommodation  centres  are  of  great  concern.28  The 
Directive  obliges  Member  States  to  'pay  particular  attention  to  the  prevention  of 
assault' within accommodation centres, but this does not entail any specific obligation 
to  prevent  sexual  assault  within  those  premises.  Many  of  the  services  provided  in 
accommodation  centres  are  not  gender-sensitive,  which  makes  it  difficult  to  prevent 
such  incidents.  It  is  questionable  in  this  respect  whether  housing  conditions  provide 
for  an  adequate  environment  for  the  development  of  family  life  and  the  respect  of 
private life.29 

Access to education 

Member States must provide access to the education system within three months from 
the  date  of  lodging  the  application.  This  flexibility  has  been  built  in  with  a  view  to 
adjusting  the  legislation  to  the  different  schooling  systems  in  the  EU.  However, 
according  to  the  Directive,  this  period  may  be  extended  to  one  year  where  specific 
education  is  provided  in  order  to  facilitate  access  to  the  education  system.  Member 
States in principle provide access within the three-month time frame and it seems that 
the possibility to extend it to one year has not been transposed into national laws.30  

27 

28 

29 
30 

Information  gathered  during  the  EURASIL  workshop  on  traumatised  persons  in  the  asylum 
procedure, 20 May 2008 Brussels 
Manual on 'Prevention and Monitoring of Sexual and Gender-Based Violence Among Persons 
in Need of International Protection in Central Europe and the Baltic States' 2004 by Menedék 
(Hungarian Association for Migrants), funded by the PHARE programme. 
See n.29 JRS report  
Odysseus p. 92-93 

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13 

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The  Commission's  Green  Paper  on  "Migration  &  Mobility:  Challenges  and 
Opportunities  for  EU  Education  Systems"31,  adopted  on  3  July  2008,  recognises  the 
educational difficulties caused by segregated schooling and underlines the importance 
of pre-school education. In general, major difficulties are faced by minors in Member 
States  where  no  preparatory  schooling  is  made  available,  especially  in  the  form  of 
language  classes  with  a  view  to  facilitating  their  integration  into  the  national 
education  system.  Where  such  practices  are  adopted  at  national  level,  they  assist 
minors in benefiting to the fullest possible extent from the national education system 
and avoid the creation of segregated schools that could lead to their isolation from the 
hosting Member State.  

Inadequate training of staff  

The Directive's Articles 14(5), 19(4) and 24(1) aim at ensuring that training of persons 
working  in  accommodation  centres  takes  into  account  the  specific  needs  of 
unaccompanied  minors  as  well  as  the  gender  dimension.  There  is  at  present  no 
specific  provision  ensuring  that  personnel  are  adequately  trained  with  a  view  to 
addressing  specific  needs  of  victims  of  torture  or  rape  in  particular.  In  practice, 
specific training on addressing the needs of torture victims very rarely occurs.  

Scope of the problem 

The Reception  Conditions Directive  obliges Member  States to "regularly  inform the 
Commission on the data concerning the number of persons, broken down by sex and 
age, covered by reception conditions and provide full information on the type, name 
and  format  of  the  documents  provided  for  by  Article  6".  Member  States  have, 
however,  failed  to  collect  this  information  at  national  level.  Owing  to  the  lack  of 
statistical  data  it  is  difficult  to  get  a  more  accurate  picture  of  the  extent  of  the 
problems  that  require  attention  regarding  vulnerable  persons.  In  general,  very  little 
statistical  information  is  available  in  the  Member  States  on  the  number  of  asylum 
seekers with special needs or those who use specialised or specially adapted facilities. 
Where  such  statistical  evidence  is  available,  it  refers  mainly  to  unaccompanied 
minors,  single-parent  families  or  elderly  persons  (although  there  is  no  agreed 
definition of elderly persons).32  

3. 

Material Reception Conditions33  

The Reception Conditions Directive obliges Member States to provide asylum seekers 
with material reception conditions that include 'housing, food and clothing provided in 
kind or as financial allowances or in vouchers, and a daily expenses allowance'.34 In 
all cases material reception conditions should ensure 'a standard of living adequate for 
the  health  of  applicants  and  capable  of  ensuring  their  subsistence'.35  Moreover, 
whenever  housing  is  provided,  Member  States  must  ensure  family  unity  as  far  as 

31 

32 
33 

34 
35 

Green Paper on Migration & mobility: challenges and opportunities for EU education systems, 
3.7.2008, COM (2008) 423 
Ibid. For available statistical data see Annex II 
Statistics on material reception conditions are not available at EU level. It is not known how 
many  asylum  seekers  are  put  up  in  accommodation  centres  and  in  private  housing  or  what 
costs are incurred regarding granting access to material reception conditions.  
Article 2(j) 
Article 13(2) 

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14 

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possible.  This  obligation  leaves  a  wide  margin  of  discretion  as  to  the  form  of  the 
material  reception  conditions  that  are  to  be  provided  by  Member  States.  The 
Evaluation  Report  underlined  a  number  of  concerns  with  regard  to  the  level  of 
material reception conditions granted in some Member States that seems not to be in 
line  with  fundamental  rights.  The  huge  diversity  of  national  policies  on  this  issue 
further hampers the harmonisation process in respect of reception standards within the 
EU 

Level of material reception conditions 

Both the Evaluation Report, several contributions sent to the Commission by NGOs36 
and  individuals  identify  a  number  of  problems  in  relation  to  the  level  of  financial 
allowances  given  to  asylum  seekers.  In  general,  material  reception  conditions  are 
problematic in a large number of Member States where they are partially or entirely 
provided  in  the  form  of  money;  at  least  15  Member  States  seem  to  give  very  low 
financial allowances to asylum seekers;37 the amounts involved seem to be inadequate 
to  ensure  the  health  and/or  subsistence  of  asylum  seekers  and  are  only  rarely 
commensurate  with  the  minimum  social  support  granted  to  nationals.  Even  in  cases 
where  this  minimum  standard  is  applied,  it  might  still  not  be  sufficient,  as  asylum 
seekers lack family and/or other informal kinds of support. Additionally, it should be 
noted that poor reception conditions could even lead to a distortion of the system for 
determining  responsibility  in  respect  of  an  asylum  claim  (Dublin  system);  in 
particular, because Greece applies very low material reception standards, at least four 
Member States have refused to return asylum seekers to Greece despite the fact that 
Greece is responsible for processing their claim.  

Withdrawal/reduction of reception conditions 

The Directive allows Member States to reduce or withdraw reception conditions under 
specific circumstances such as non-compliance with reporting duties, abandoning the 
determined place of residence, lodging a late asylum application, etc.38 It should also 
be  noted  that  no  right  of  appeal  against  such  decisions  is  provided  for  by  the 
Directive.  

The  provisions  for  reducing  or  withdrawing  access  to  reception  conditions,  already 
envisaged in the current text of the Directive, are meant to ensure that the reception 
system is not abused. However, as the reduction or withdrawal of reception conditions 
can affect the standard of living of applicants, the Commission considers it important 
to ensure that asylum seekers are never left destitute under such circumstances. In the 
UK  the  policy  of  withholding  reception  conditions  from  asylum  seekers  who  fail  to 
demonstrate that they applied within three days of arrival was stopped as a result of a 
House of Lords ruling which held that such practice was incompatible with Article 3 
of the European Convention  on  Human Rights. The judgment made it clear that the 

36 

37 
38 

Including ECRE, the EC directive on the Reception of Asylum Seekers: Are Asylum Seekers in 
Europe  Receiving  Material  Support  and  access  to  Employment  in  Accordance  with  EU 
legislation?'  November  2005,  Pro  Asyl,  Information  and  Cooperation  Forum:  Final  Report, 
28 February 2006.  
Odysseus report, page 26 
All Member States have transposed this option into their national legislation 

EN 

15 

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reduction  or  withdrawal  of  basic  reception  conditions,  such  as  food,  housing  and 
access to health care, is inconsistent with human rights and fundamental rights under 
international legal instruments.39  

In this respect, further guidance and safeguards are required with a view to ensuring 
that fundamental rights are respected.  

4. 

Access to the labour market40  

Article 11 of the Reception Conditions Directive recognises asylum seekers’ right to 
access the labour market. However, it allows Member States to determine the period 
during  which  asylum  seekers  cannot  access  employment,  which  in  any  case  should 
not exceed one year in the event that a decision at first instance has not been taken and 
the delay cannot be attributed to the asylum seeker. Enjoyment of this right is subject 
to the conditions laid down in national legislation and Member States may also give 
priority to other categories of non-nationals.  

Two problematic issues regarding access to the labour market have been identified.41 
First and foremost the Evaluation Report has identified low standards of treatment. In 
particular,  it  has  been  noted  that  although  asylum  seekers  are  in  principle  granted 
access after a maximum period of one year, actual access to the labour market could 
be  hindered  to  a  great  extent  by  the  imposition  of  restrictive  conditions  at  national 
level  with  regard  to  certain  economic  sectors  and  the  amount  of  time  the  asylum 
seeker  can  work,  and  by  prohibiting  the  exercise  of  independent  or  commercial 
activity.  It  should  be  noted  in  this  respect  that  almost  two  thirds  of  Member  States 
require  asylum  seekers  to  possess  a  permit  or  an  authorisation  to  work.  In  those 
Member States, access to the labour market will be dictated by the constraints flowing 
from the work permit system of the Member State concerned. In some cases the work 
permit could also be subject to a number of limitations like working hours or the type 
of work to be carried out.  

Secondly, time frames for granting access differ between Member States. Half of the 
Member  States  allow  access  to  employment  after  12  months  upon  submission  of  an 
application.  The  other  half,  with  one  exception,42  has  opted  for  more  favourable 
provisions ranging from immediate access to 6 months.43 As stated in Recital 7 of the 
current  Directive,  the  harmonisation  of  legislation  is  considered  to  be  a  means  of 
limiting  secondary  movement  of  asylum  seekers  between  Member  States;  it  is 
therefore  clear  that  disparities  regarding  access  to  work  jeopardise  the  realisation  of 
this goal. In particular, asylum seekers might be inclined to move to a Member State 

39 

40 

41 

42 
43 

R(Q) v Secretary of State for the Home Department [2004] QB 36, confirmed by the opinion 
of the Lords of Appeal for the judgement in the case Regina v Secretary of State for the Home 
Department [2005] UKHL 66 
No  statistics  are  available  at  EU  level  regarding  the  number  of  asylum  seekers  currently 
employed in Member States.  
Odysseus report, p.78-81 and ECRE, ‘The EC Directive on the Reception of Asylum Seekers: 
Are  Asylum  Seekers  in  Europe  Receiving  Material  Support  and  Access  to  Employment  in 
Accordance with European Legislation?’ November 2005. 
Lithuania does not grant access to the labour market to asylum seekers.  
Immediate  access  to  employment  is  allowed  in  Greece,  whereas  the  limitation  period  is  20 
days  in  Portugal,  3  months  in  Austria  and  Finland,  4  months  in  Sweden,  6  months  in  Italy, 
Spain, Netherlands, Cyprus and 9 months in Luxembourg. 

EN 

16 

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that allows quicker access to employment. Retaining in this respect the wide margin 
of  manoeuvre  allowed  under  the  current  provisions  of  the  Directive  would  not  be 
conducive to limiting this phenomenon.  

Studies  have  pointed  to  the  negative  impact  that  unemployment,  exclusion  and  the 
lack of personal autonomy have on physical and mental health. The unemployed and 
socially  excluded  have  a  lower  life  expectancy,  resulting  from  a  number  of 
interconnected  factors  including  loneliness,  boredom,  social  isolation,  loss  of  self-
esteem, anxiety and depression. For asylum seekers this may exacerbate their already 
vulnerable position.44  

Easier  access  to  employment  for  asylum  seekers  could  prevent  exclusion  from  the 
host  society,  and  thus  facilitate  integration.  It  would  also  promote  self-sufficiency 
among asylum seekers. Mandatory unemployment on the other hand imposes costs on 
the State through unnecessary social welfare payments. Finally it should be noted that, 
as stated in the Commission Communication on the 'Links between legal and illegal 
migration'45,  labour  market  restrictions  could  encourage  illegal  working.  This  is 
particularly relevant for those Member States which create obstacles on access to the 
labour market and  which grant very low welfare assistance  to asylum seekers at the 
same  time.  In  these  circumstances  asylum  seekers  will  be  inclined  to  seek 
employment even in irregular forms that could lead to distortion of the labour market.  

5. 

Applicants for subsidiary protection  

The Reception Conditions Directive applies to individuals who lodge an asylum claim 
under the Refugee Convention and their family members as long as they are allowed 
to remain in the territory. At present there is no obligation to extend the application of 
the  Directive  to  persons  applying  for  subsidiary  protection  status.46  Only  three 
Member  States47  exclude,  by  law,  the  application  of  the  Reception  Conditions 
Directive in the case of applicants for subsidiary protection. However, the recognition 
of subsidiary forms of protection and the institutionalisation of the principle of single 
procedure  has  in  practice  led  these  Member  States  to  grant  the  reception  conditions 
intended for refugee candidates to all persons seeking international protection.48  

44 

45 

46 

47 

48 

Conclusion  of  EQUAL  event:  'Getting  asylum  seekers  into  employment  –  challenges  and 
opportunities' Chania (Crete – Greece), 1-2 June 2006 
Communication from the Commission to the Council, the European Parliament, the European 
Economic  and  Social  Committee  and  the  Committee  of  the  Regions  'Study  on  the  links 
between legal and illegal migration', COM(2004) 412 
The reason this category of applicants was left outside the scope of the Directive is due to the 
fact that at the time of its adoption, the concept of subsidiary protection was not covered by 
EU  law.  Subsidiary  protection  is  now  an  integral  part  of  EU  law  as  reflected  in  Council 
Directive 2004/83/EC of 29 April 2004 on minimum standards for the qualification and status 
of  third  country  nationals or stateless  persons  as  refugees  or  as  persons who otherwise  need 
international protection and the content of the protection granted. 
Only  three  Member  States  exclude  in  law  the  application  of  the  Directive  in  relation  to 
subsidiary  protection  applicants.  However,  since  the  introduction  of  a  common  application 
form for refugee and subsidiary protection statuses, the latter category of applicants do benefit 
in practice from reception conditions.  
This implies the setting up of a single procedure to determine both whether the applicant is in 
need of refugee or subsidiary protection status and other protection needs 

EN 

17 

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Although this deficiency does not significantly affect asylum applicants, neither does 
it lead to divergence in national policies in this respect, it should still be clarified so as 
to  reflect  current  developments  in  EU  legislation  and  to  ensure  equal  treatment 
amongst all asylum seekers.  

6. 

Asylum seekers within certain types of procedures or locations 

The Evaluation Report on the application of the Reception Conditions Directive has 
clearly  demonstrated  that  a  number  of  Member  States  either  exclude  entirely  the 
application  of  the  Directive  or  provide  lower  reception  standards  depending  on  the 
stage of the asylum procedure (for example, four Member States act in this way at the 
very beginning of the procedure,49 while three Member States do so when the asylum 
seeker  falls  under  the  scope  of  the  Dublin  II  Regulation50)  or  the  location  (at  the 
border).51 Of greater concern is the fact that this restrictive approach is applied by at 
least nine Member States in detention centres.  

Although in legal terms there is no decisive evidence to show that the Directive does 
not  apply  in  the  cases  described  above,  it  could  be  submitted  that  its  scope  of 
application (both in terms of ratione personae and ratione materiae) is inadequately 
defined.  This  ambiguity  leaves  wide  room  for  interpretation  of  these  obligations. 
These ambiguities could more effectively be clarified by an express provision in the 
Directive. 

2.2.2.  Different  standards  of  treatment,  between  vulnerable  asylum  seekers  and 

vulnerable nationals, could lead to discrimination.  

The  International  Covenant  on  Economic,  Social  and  Cultural  Rights  states  that 
parties  shall  'recognise  the  right  of  everyone  to  an  adequate  standard  of  living  for 
himself  and  his  family,  including  adequate  food,  clothing  and  housing,  and  to  the 
continuous  improvement  of  living  conditions'.52  Similarly,  the  Reception  Conditions 
Directive provides that Member States need to ensure 'a standard of living adequate 
for the health of applicants and capable of ensuring their subsistence'.53 

Under  the  Directive  Member  States  could  employ  various  mechanisms  in  order  to 
abide by this requirement. Even if this leads to the adoption of different measures than 
those applied for nationals, Member States are in compliance with their obligations as 
long  as  the  adequacy  test  is  met.  However,  in  the  cases  referred  to  above,  where 
reception  standards  are  low,  it  could  be  argued  that  different  treatment  of  asylum 
seekers - and in particular vulnerable persons - could amount to discrimination.  

Close  examination  of  the  ECtHR's  reasoning  regarding  non-discrimination  invites  a 
more  careful  interpretation  of  the  obligations  imposed  on  Member  States  under  the 
Directive,  with  particular  reference  to  vulnerable  persons.  The  ECtHR  stated  in  its 

49 

50 
51 

52 
53 

See case: CONSEIL D'ETAT (Section du contentieux, 1ère et 6ème sous-sections) Séance du 
14 mai 2008, Lecture du 16 juin 2008 Nos 300636,300637 Association LA CIMADE 
Odysseus Report p. 33, 23 and 94 
Although this specific limitation is only applied by a small number of Member States, it is still 
considered problematic especially since the Dublin procedure can be very lengthy 
Article 11 
Article 13 

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18 

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judgement of 15 February 2006 in the case of Niedzwiecki v Germany that it 'does not 
discern  sufficient  reasons  justifying  the  different  treatment  with  regard  to  child 
benefits of aliens who were in possession of a stable residence permit on one hand and 
those who were not, on the other'.54 The case involved a German law providing that a 
foreigner  was  only  entitled  to  child  benefits  if  he  was  in  possession  of  a  stable 
residence permit. The Court found, in this respect, that there had been a violation of 
Article 14 (right not to be discriminated) in conjunction with Article 8 (right to family 
life)  of  the  Convention.  The  same  reasoning  was  employed  by  the  Court  in  its 
judgment in the case of Okpisz v Germany,55 also concerning child benefits.  

Furthermore,  in  the  Poirrez56  case,  the  ECtHR  found  that  France's  refusal  to  grant 
access  to  disabled  adults'  allowance  to  a  non-national  breached  Article  14  of  the 
Convention as it was an instance of discrimination on grounds of nationality. It was 
further stated in this case that the applicant's right to receive the specific social benefit 
was  established  irrespective  of  the  fact  that  he  was  paying  taxes  and/or  other 
contributions to the contracting party. The recent Sampanis57 case further consolidates 
the case-law of the Court as regards the level of treatment for vulnerable persons. In 
this  case  the  Court  stated  that  'given  the  Roma  community’s  vulnerability,  which 
made  it  necessary  to  pay  particular  attention  to  their  needs,  and  considering  that 
Article  14  required  in  certain  circumstances  a  difference  of  treatment  in  order  to 
correct inequality, the competent authorities should have recognised the particularity 
of  the  case  and  facilitated  the  enrolment  of  the  Roma  children,  even  if  some  of  the 
requisite administrative documents were not readily available'.  

In the cases cited above, the Court's case-law reveals the intention to strictly scrutinise 
differential treatment that is solely based on grounds of nationality, at least in relation 
to vulnerable persons. As stated in the case of Gaygusuz v Austria58, where the Court 
examined the contracting party's decision not to grant emergency assistance benefits 
in  the  event  of  unemployment  to  a  third-country  national,  'very  weighty  reasons 
would have to be put forward' to pass the test of Article 14 of the Convention. Also in 
this  case  it  was  found  that  the  national  policy  infringed  the  principle  of  non-
discrimination since it was not based on any objective and reasonable justification.59 

The  Reception  Conditions  Directive  allows  Member  States  a  wide  margin  of 
discretion when adopting reception policies for asylum seekers in their territory. This 
discretion  should  be reconsidered in light of the need to ensure - at least in specific 
cases concerning vulnerable persons that the application of different standards that are 
lower than those applied for nationals does not amount to discrimination. Concretely, 
let  us  consider  the  case  of  a  pregnant  woman  and  EU  national  being  entitled  to 
specific  medical  monitoring  during  her  pregnancy  under  the  Member  States' 
legislation:  if  an  asylum  seeker  under  the  same  circumstances  were  to  be  excluded 

54 
55 
56 
57 
58 

59 

Niedzwiecki v Germany, application no. 58453/00, 15 February 2006, para. 33 
Okpisz v Germany, application no. 59140/00, 15 February 2006, para. 34 
Koua Poirrez v. France, application no. 40892/98, 30 September 2003 para 46 
Sampanis and Others v. Greece application no. 32526/05, 5.6.08  
Gaygusuz  v  Austria  judgment  of  16 September  1996,  Reports  of  Judgments  and  Decisions 
1996-IV, para.23 
For related case law on Article 14 see Petrovic v Austria judgement of 27 March 1998, Willis 
v UK application number 36042/97 

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from  this  benefit,  the  said  policy  might  not  be  justifiable  in  the  eyes  of  the  Court. 
Additionally,  regarding  education  rights  for  children,  the  Directive  stipulates  that 
Member States must allow access to education under similar conditions as nationals. 
Although under international human rights standards there is no obligation to provide 
access under the same conditions, concerns regarding equal treatment will emerge if 
standards applicable to non-national children are less favourable.  

It should also be noted that the technical requirements for substantiating a claim for 
discriminatory  treatment  under  the  Convention  have  been  lifted  by  the  coming  into 
force of Protocol 12 on 1 April 2005.60 The Protocol prohibits discrimination based on 
sex,  race,  colour,  language,  religion,  political  or  other  opinion,  national  or  social 
origin, association with a national minority, property, birth or other status. 

2.2.3. 

Secondary  movements  of  asylum  seekers  and  refugees  applying  for 
international  protection  in  more  than  one  Member  State  impose  an  unfair 
strain on national administrations and on asylum seekers 

Secondary  movements  are  understood  as  being  the  phenomenon  of  multiple 
applications for asylum submitted simultaneously or successively by the same person 
in  several  Member  States.  The  main  reasons  for  this  are  differences  in  recognition 
rates as well as the level of reception conditions established at national level and the 
rights granted.  

From  an  asylum  seeker's  point  of  view,  moving  from  one  Member  State  to  another 
entails financial costs, as well as distress and uncertainty. Looking at the phenomenon 
from  the  Member  States'  perspective,  it  is  clear  that  it  is  inefficient  and  resource-
consuming.  Asylum  procedures  will  be  initiated,  involving  human  and  other 
resources,  only  to  be  abandoned  some  time  later  if,  for  instance,  the  asylum  seeker 
fails  to  appear  for  an  interview  because  he/she  has  moved  on  to  another  Member 
State, where a new procedure has started.  

Measuring the scale of multiple applications by asylum seekers is a complex task, but 
the  available  statistical  data61  give  an  indication  that  the  phenomenon  of  asylum 
shopping is a relevant issue that must be tackled in the EU context.  

According to the Eurodac Regulation, Member States are obliged to fingerprint every 
third-country  national  applying  for  asylum  over  the  age  of  14.  According  to  the 
annual  statistics  on  the  activities  of  the  Eurodac  Central  Unit,  in  2007  a  total  of 
197,284 asylum applications were recorded in the system. Out of the total number of 
applications  recorded,  16.17%  were  multiple  applications  (17%  in  2006).  Such  a 
figure would suggest that in 31,910 cases, the same person had already made at least 
one  asylum  application  before  (in  the  same  or  in  another  Member  State).  The 
Commission  has  stressed  the  link  between  this  phenomenon  and  the  application  of 

60 

61 

Under  this  Protocol,  standing  requirements  for  raising  an  infringement  of  Article  14  are  no 
longer required to illustrate that the facts at issue fall within the remit of one or more of the 
substantive provisions of the Convention and its Protocols. Additionally, if the Treaty on the 
Functioning of the European Union ('TFEU') comes into force, Article 21 stipulating that 'any 
discrimination on  grounds of nationality  shall  be  prohibited'  would  reinforce  this obligation. 
These new developments would provide further legal bases upon which a discriminatory claim 
could be substantiated.  
For statistical data see Annex IV 

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reception conditions within the framework of the Reception Conditions Directive. The 
Directive  states  that  'the  harmonisation  of  conditions  for  the  reception  of  asylum 
seekers  should help to limit the secondary movements of asylum seekers influenced 
by the variety of conditions for their reception'.62 As stressed in the previous section, 
the  wide  margin  of  discretion  afforded  under  the  Directive  to  Member  States  in 
implementing  certain  obligations  as  well  as  the  legal  ambiguity  embedded  in  the 
scope of some of these obligations, has led to large differences in the rights granted at 
national level to asylum seekers. It is argued that these differences increase secondary 
movements to a certain extent  

The  phenomenon  of  secondary  movements  is  driven  by  numerous  factors  such  as 
recognition rates in Member States, cultural and linguistic links, geographic position, 
etc., and it is therefore not easy to determine the precise impact which the differences 
in national reception policies could have on secondary movement. However, reception 
conditions should be seen as part of the asylum system as a whole; although they are 
not the only reason reinforcing secondary movements, they are nevertheless one of the 
driving  factors  that  need  to  be  addressed  during  the  second  phase  of  asylum 
legislation. 

In  this  respect  it  can  be  argued,  on  the  basis  of  existing  statistical  data,  that  asylum 
seekers  are  aware  of  national  asylum  policies  and  legislative  amendments  and  often 
reorient  their  choice  after  a  restrictive  change.  Indeed,  countries  which  have 
introduced  restrictive  measures  have  often  seen  a  decrease  in  the  number  of  asylum 
applications  soon  after  the  changes  were  implemented,  for  example  Germany  after 
1993,  Spain  in  1995,  Denmark  in  2001.  Most  emblematic  is  the  recent  example  of 
Sweden, which restricted its asylum policies concerning Iraqi asylum seekers and has 
witnessed  a  substantial  decrease  in  the  number  of  asylum  applications  from  that 
country  (from  1 555  applications  between  January  and  June  2007  to  306  between 
January  and  June  2008).  Additionally,  this  restrictive  policy  had  an  impact  on  its 
neighbouring countries since Iraqi asylum seekers registered applications in Germany, 
the Netherlands and Finland instead. 

2.3. 

How would the problem evolve, all things being equal? 

The identified problems are likely to continue in the future if no legislative action is 
taken  to  address  them.  The  existing  EU  and  national  measures  do  not  satisfactorily 
tackle the problems described above.  

Level  of  treatment:  The  wide  discretion  left  to  Member  States  in  implementing  the 
Directive also contributes, as stated in the previous section of this impact assessment, 
to  the  establishment  of  low  standards  of  treatment  of  asylum  seekers  in  relation  to 
reception conditions. For example, vagueness in the definition of the circumstances in 
which  an  asylum  seeker  can  be  detained  has  led  to  some  Member  States 
systematically  detaining  all  asylum  seekers  while  others  never  use  detention. 
Moreover,  the  lack  of  clear  benchmarks  regarding  the  level  and  form  of  material 
reception conditions that should be available to asylum seekers has led to cases where 
asylum seekers are left in poverty.  

62 

Recital 8  

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As  a  result,  if  no  action  is  taken  to  limit  the  Member  States'  room  for  manoeuvre, 
these differences will continue to result in the adoption of low standards of treatment.  

Practical  cooperation  via  related  fora  such  as  EURASIL  will,  to  a  certain  extent, 
develop  a  number  of  good  practices  regarding  the  reception  of  asylum  seekers. 
Moreover,  EU  funding  possibilities  in  the  area  of  asylum,  such  as  the  European 
Refugee Fund, would continue to assist Member States in ameliorating their reception 
capacities. However, as the first phase of the asylum legislation has illustrated, in the 
absence of EU intervention, practical cooperation on its own will prove insufficient to 
adequately  address  all  the  problems  identified  already  in  the  field  of  asylum 
legislation.  

Secondary  movements:  Given  the  very  wide  margin  of  manoeuvre  permitted  by  the 
Reception  Conditions  Directive,  the  differences  in  reception  conditions  between 
Member  States  are  so  big  in  terms  of  access  to  housing,  employment,  health, 
education,  social  insurance,  etc.  that  they  are  not  limiting  secondary  movements  of 
asylum  seekers  who  look  for  a  more  adequate  level  of  support  during  the  asylum 
procedure.  Lack  of  harmonised  standards  will  perpetuate  secondary  movements  and 
the overburdening of those Member States providing generous reception facilities; the 
said Member States might then be inclined to lower their standards so as to avoid a 
possible increase in asylum applications on their territory.  

It should be noted that, taking into consideration the wide margin of manoeuvre given 
to Member States in implementing the Directive and the fact that the current text of 
the  Directive  is  in  some  respects  ambiguous,  it  is  extremely  difficult  to  substantiate 
clear cases of non-compliance. Accordingly, in the absence of legislative intervention 
the identified problems would continue.  

2.4. 

Does the EU have the power to act?  

2.4.1.  The EU's right to act  

Title  IV  of  the  EC  Treaty  (TEC)  on  visas,  asylum,  immigration  and  other  policies 
related  to  free  movement  of  persons  confers  certain  powers  in  these  matters  on  the 
European Community. These powers must be exercised in accordance with Article 5 
TEC, i.e. if and in so far as the objectives of the proposed action cannot be sufficiently 
achieved by the Member States and can, therefore, by reason of the scale or effects of 
the proposed action, be better achieved by the Community.  

The  current  legal  base  for  Community  action  in  the  area  of  asylum  policy  is 
established in Article 63 (1) and (2) TEC. These provisions state that the Council is to 
adopt  “measures  on  asylum,  in  accordance  with  the  Geneva  Convention  of  28  July 
1951 and the Protocol of 31 January 1967 relating to the status of refugees and other 
relevant treaties” and also “measures on refugees and displaced persons” in areas such 
as  Member  State  responsibility,  reception  conditions,  refugee  qualification,  granting 
of  protection  (including  temporary  protection)  and  balancing  of  Member  States' 
efforts in receiving asylum seekers. 

The reasons and need for a common intervention at EU level are clearly expressed in 
the section below. 

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2.4.2.  EU added value and the principle of subsidiarity 

The principle of subsidiarity, as stipulated in Article 5 of the TEC, states that in areas 
where the Community has no exclusive power to act, it should only act ‘if and in so 
far  as  the  objectives  of  the  proposed  action  cannot  be  sufficiently  achieved  by  the 
Member  States  and  can  therefore,  by  reason  of  the  scale  or  effects  of  the  proposed 
action, be better achieved by the Community’. Furthermore, any action taken must not 
go beyond what is necessary to achieve the objectives set by the Treaty. It is therefore 
necessary to examine whether the actions proposed by the Commission in the area of 
reception  conditions  for  asylum  seekers  are  in  line  with  the  test  of  ‘comparative 
efficiency’:63 is it better for the actions to be taken by the Community or the Member 
States?  At  the  Tampere  European  Council  of  15-16  October  1999,  Member  States 
agreed  to  work  towards  the  establishment  of  a  Common  European  Asylum  System 
(CEAS) incorporating inter alia common minimum conditions of reception of asylum 
seekers.  To  that  end,  the  Council  was  urged  to  adopt  the  necessary  decisions 
according to the timetable set in the Treaty of Amsterdam.  

Consequently the Council adopted, on 27 January 2003, Directive 2003/9/EC laying 
down  minimum  standards  for  the  reception  of  asylum  seekers  (the  Reception 
Conditions Directive), aiming to: 

- 
lay  down  in  national  law  minimum  standards  for  the  reception  of  asylum 
seekers  that  will  normally  suffice  to  ensure  them  a  dignified  standard  of  living  and 
comparable living conditions (Recital 7); 

harmonise reception conditions in order to limit the phenomenon of secondary 

- 
movements influenced by the variety of conditions for reception (Recital 8). 

In this respect, common minimum standards for the reception of asylum seekers have 
already been established at EU level during the first phase of asylum legislation. The 
Hague Programme, adopted by the European Council on 4 November 2004 to set out 
the  required  actions  for  the  second  phase  of  asylum  legislation,  reconfirmed  the 
Tampere objectives and stated that the aims of the CEAS would be the establishment 
of  a  common  asylum  procedure  and  a  uniform  status  for  those  who  are  granted 
asylum  or  subsidiary  protection.  The  Hague  Programme 
therefore  clearly 
demonstrated  once  again  the  Member  States'  continued  support  for  the  necessity  of 
further Community action in relation to a CEAS that requires further harmonisation 
in the area of asylum.  

In preparation for the second phase of asylum legislation, the Commission issued an 
evaluation report on the implementation of the Reception Conditions Directive which, 
along  with  contributions  sent  by  stakeholders  during  the  Green  Paper  consultation 
process,  forms  the  basis  of  the  present  proposal  amending  the  Directive.  The  report 
identified  a  number  of  deficiencies  at  national  level  attributable  mainly  to  the  wide 
margin  of  discretion  afforded  to  the  Member  States  in  implementing  the  Directive. 
These deficiencies have resulted in two main problems: 

63 

Commission Communication to the Council and the European Parliament, Bull. EC 10-1991, 
p.116 

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low, and in some cases discriminatory reception standards, notably in relation 
- 
to access to the labour market, addressing vulnerable groups, detention and material 
reception conditions;  

wide divergences in national reception policies that may make asylum seekers 

- 
more inclined to move to those Member States that offer better reception standards.  

In order to rectify this, the Commission’s proposal aims to ensure: 

–  better standards of reception with a view of ameliorating the level of treatment of 

asylum seekers in line with international standards, and; 

–  further  harmonisation  of  reception  standards  in  order  to  reduce  secondary 
movements  in  so  far  as  these  are  linked  to  the  diversity  of  national  reception 
standards.  

It is submitted that these objectives can only be attained jointly. In particular, in the 
absence of EU action: 

i) reception standards will not be raised by Member States' unilateral actions; on the 
contrary,  ‘a  race  to  the  bottom’  would  occur  since  those  Member  States  currently 
providing more generous reception conditions will be inclined to lower their standards 
in order to avoid being seen as offering too generous reception conditions. As stated 
in a previous section of this report (secondary movements), some Member States that 
established  stricter  asylum  policies  witnessed  a  decrease  in  the  number  of  asylum 
applications  received.  Such  examples  point  to  a  possible  link  between  the  level  of 
treatment  afforded  in  a  Member  State  and  asylum  flows.  Indeed,  it  could  also  be 
submitted that the fact that Sweden receives five times more asylum applications than 
Spain,  which  is  a  border  country,  may  be  attributed  to  the  higher  standards  of 
protection it grants to asylum applicants. 

Lowering reception standards would raise strong concerns from a fundamental rights 
point  of  view,  namely  in  relation  to  the  right  to  liberty,  the  right  to  be  protected 
against  torture  and  mistreatment,  and  the  right  to  human  dignity;  This  would  be 
particularly problematic in the case of those Member States whose reception standards 
for asylum applicants are already low. It should be stressed that the EU has a moral 
and  legal  duty  to  ensure  that  Member  States,  when  implementing  EU  legislation, 
respect  fundamental  rights  and  the  principles  established  under  international  human 
rights law.  

ii) further harmonisation will not be achieved and therefore secondary movements, in 
so far as they are linked to the divergence of national reception policies, will not be 
limited.  

Consequently EU action is necessary in order to attain higher and more harmonised 
standards,  based  on  the  existing  minimum  standards  on  the  reception  of  asylum 
seekers. The European Court of Justice's reasoning on the principle of subsidiarity in 
the Working Time Directive case64 is particularly relevant. The Court stated that once 

64 

Case C-377/98, Netherlands v Council, para 52  

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the  Council  ‘has  found  it  necessary  to  improve  the  existing  level  of  protection 
(minimum standards in the area of health and safety) and to further harmonise the law 
in  this  area  while  maintaining  improvements  already  made,  the  achievement  of  this 
objective necessarily presupposes Community action'.  

Finally,  it  should  be  underlined  that  the  EU  actions  discussed  in  this  impact 
assessment  will  not  go  beyond  what  is  required  in  terms  of  adding  value  at  the  EU 
level.  The  proportionality  of  the  options  will  be  carefully  assessed  so  as  to  clarify 
whether or not they go beyond what is necessary to achieve the objectives described 
under section 3. 

2.5. 

Consultation with Stakeholders 

The following main findings regarding the necessary improvements to the Reception 
Conditions Directive emerged from the replies to the Green Paper on the future CEAS 
and from the consultations the Commission had with various stakeholders, as referred 
to in point 1.1.2: 

Member  States  express  general  support  for  measures 
to  achieve  further 
harmonisation  in  the  second  stage  of  asylum  legislation  regarding  reception 
conditions.  They  retain,  however,  specific  reserves  depending  on  the  subject.  The 
Member States' position appears to be as follows:  

•  General consensus on the necessity of further standardisation in the form and level 
of  material  reception  conditions  while  allowing  for  certain  flexibility,  taking  into 
consideration Member States' socio-economic differences; 

•  Majority  supports  the  idea  of  further  approximation  of  the  rules  on  access  to  the 
labour  market.  Some  express  concerns  in  relation  to  reducing  time  restrictions  to 
access employment and eliminating the requirement for a work permit; 

•  Some focus on the need to established harmonised rules regarding access to health 

care and education; 

•  Majority supports measures with a view to better addressing special needs. Some 
Member  States  prefer  to  tackle  deficiencies  in  this  policy  area  within  the 
framework of practical cooperation.  

UNHCR and NGOs strongly support the harmonisation process. They focus 
particularly on: 

•  the  possibility  of  giving  access  to  the  labour  market  to  asylum  seekers  after  six 

months of stay in the EU; 

•  further harmonisation in the form and level of material reception conditions; 

•  the  need  to  ensure  that  detention  should  be  restricted  as  much  as  possible  by 
regulating  duration  and  conditions  of  detention  coupled  with  the  need  for 
clarification of the grounds for detention;  

•  the  importance  of  providing  higher  standards  regarding  access  to  health  care, 

education and addressing special needs;  

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•  the  importance  of  exchanging  best  practices  especially  regarding  training  of  staff 

who deal with asylum seekers 

3. 

SECTION 3: OBJECTIVES 

3.1. 

Global objectives 

The global objectives for future development of measures on reception conditions for 
asylum seekers in the second phase of the CEAS are as follows: 

1. To ensure higher standards in terms of reception conditions for persons in need of 
international protection; 

2. To contribute to reducing the phenomenon of secondary movements.65 

3.2. 

Specific objectives 

The  proposal  to  amend  the  Reception  Conditions  Directive  should  pursue  the 
following specific objectives:  

1. To clearly define the scope of application of the Directive;  

2. To facilitate access to the labour market; 

3.  To  guarantee  legal  safeguards  for  detained  asylum  seekers  and  to  ensure  that 
detention is not arbitrary; 

4. To ensure adequate standards for material reception conditions; 

5. To guarantee that the needs of vulnerable groups are adequately addressed. 

3.3. 

Operational objectives 

The following non-exhaustive list of operational objectives is suggested: 

1. To extend the application of reception conditions to subsidiary protection; 

2. To ensure the application of reception conditions in detention facilities; 

3. To ensure the application of reception conditions to all types of procedures; 

4.  To  shorten  the  period  of  prohibiting  access  to  the  labour  market  and  limit  the 
adoption of further restrictions that in practice hinder access to employment; 

6. To establish modalities to assist the Commission as well as the Member States in 
effectively monitoring the implementation of adequate standards of living; 

65 

This  global  objective  is  a  cross-cutting  objective  which  concerns  also  the  other  legislative 
areas of the CEAS (i.e. procedures). In this case the global objective consists in contributing to 
reducing  the  uneven  distribution  of  asylum  seekers,  secondary  movements  and  asylum 
shopping by amending the reception conditions legislation: by achieving all the specific and 
operational  objectives  individuated,  the  policy  intervention  will  contribute  to  tackling  the 
phenomena mentioned. 

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7. To provide for legal guarantees such as the right to be informed of the grounds for 
detention and the possibility to challenge detention before a national court in line with 
current EU rules; 

8. To define grounds and conditions of detention; 

9. To provide that detention for vulnerable persons such as minors would be used only 
if it is in their best interest and as a last resort; 

10.  To  ensure  that  mechanisms  are  established  at  national  level  with  a  view  to 
identifying special needs and to provide adequate treatment; 

11. To facilitate access to education for minors. 

4. 

POLICY OPTIONS 

Given the different types of problems identified, it is not possible to come up with one 
single all-embracing policy option. Accordingly, different policy options in relation to 
legislation  and  practical  cooperation  measures  are  presented  below  with  regard  to 
each  identified  problem.  Practical  cooperation  measures  are  considered  separately 
from  the  legislative  ones.  The  preferred  policy  option  could  comprise  both  types  of 
intervention (legislative and practical cooperation) or only one.  

4.1. 

Option 1: Status Quo 

Developments  in  Member  States  will  continue  within  the  current  framework.  The 
existing  legal  framework  would  remain  unchanged  and  ongoing  activities  would 
continue.  The  Commission  will  continue  monitoring  the  implementation  of  the 
Reception  Conditions  Directive.  Taking  into  consideration  the  level  of  ambiguity 
concerning  certain  obligations  envisaged  under  the  current  Directive,  it  seems 
unlikely  that  the  majorities  of  the  deficiencies  identified  in  this  report  could  be 
rectified  by 
infringement  procedures  against  Member  States.  The 
Commission  will  however,  where  necessary,  not  refrain  from  taking  further 
procedural steps with a view to bringing cases of non-compliance before the ECJ. 

initiating 

ANNEX I - Status quo  

Policy Option A: No EU action 

Assessment Criteria  

Rating 

Motivation of the rating and aspects of the policy option 
necessary to achieve the impact 

Relevance 

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Policy Option A: No EU action 

Assessment Criteria  

Rating 

Motivation of the rating and aspects of the policy option 
necessary to achieve the impact 

Maintaining  the  status  quo  would  prevent  the  CEAS  from 
attaining  equal  and  higher  standards  in  terms  of  reception 
conditions  for  people  in  need  of  international  protection,  since  it 
would  maintain  the  wide  margin  of  discretion  allowed  under  the 
current Directive. 

MS  could  autonomously  decide  whether  to  retain  minimum 
standards  or  raise  the  level  of  treatment.  This  would  naturally 
entail  different  application  of  reception  conditions  throughout  the 
EU that would al least maintain low standards of treatment: 

• 

• 

• 

access  to  employment:  the  flexible  rules  of  the  current 
Directive  have  led  to  the  application  of  divergent  policies 
between  MS  regarding  access  the  labour  market.  These 
differences  in  national  polices  has  often  led  to  low  standards 
of  treatment,  notably  concerning  the  application  of  very 
restrictive conditions on access to employment; 

concerning the level and form of material reception conditions 
and  access  to  health  care,  it  should  be  stressed  that  too 
divergent  policies  are  currently  applied. 
In  particular 
concerning  financial  support,  this  appears  to  be  too  low  in 
some  MS  to  ensure  the  applicants'  subsistence.  Access  to 
health  care  has  also  proved  inadequate  in  some  cases.  These 
concerns will be maintained in no action is taken.  

free  movement  rights  and  detention:  detention  is  currently 
applied  widely  by  the  majority  of  EU  MS.  Too  divergent 
policies  exist  regarding  grounds,  length  and  conditions  of 
detention, that have often proved inadequate to protect asylum 
seekers  from  arbitrary  detention  policies,  as  often  found  by 
ECtHR case-law.  

•  With  regard  to  the  needs  of  vulnerable  persons,  considerable 
deficiencies  remain  in  particular  in  relation  to  identifying 
special needs. This has been the greatest problem with regard 
to the implementation of the Directive during the first stage of 
the asylum legislation. These concerns will not be lifted if no 
action is taken.  

Maintaining the status quo would imply no positive impact on the 
reduction  of  the  phenomenon  of  secondary  movements,  since 
the  level  of  harmonisation  of  the  reception  conditions  would 
remain  unchanged.  This  would  continue  to  influence  flows  of 
applicants for international protection between MS, in accordance 
with the level of reception conditions available in each MS. 

However,  it  must  be  specified  that  reception  conditions  are  only 
one  of  the  main  drivers  of  the  phenomenon  of  secondary 
movements in the context of the EU asylum system (others are, for 
example,  recognition  rates,  geographical  position  of  MS  etc.), 
which  would  have  to  be  considered  in  revising  the  EU  asylum 
system in general. 

The  policy  option  does  not  provide  for  further  measures  to  be 
transposed  and  therefore  there  are  no  difficulties  or  risks  in  this 
sense. 

No  additional  financial  and  administrative  costs  are  anticipated, 
given the preserving of the status quo. 

The  extent  of  secondary  movements  currently  taking  place  can 
negatively  influence  the  perception  of  asylum  seekers  within 
countries of destination.  

Ensure higher and more equal standards 
in  terms  of  reception  conditions  for 
people 
international 
protection 

need 

of 

in 

0 

Reduce  the  phenomenon  of  secondary 
movements 

0 

Feasibility 

Transposition feasibility 

Financial feasbility 

Expected Impacts 

Social impacts at EU and MS level 

0 

0 

0 

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Policy Option A: No EU action 

Assessment Criteria  

Rating 

Motivation of the rating and aspects of the policy option 
necessary to achieve the impact 

Economic impacts at EU and MS level 

0 

Impact 
people 
on 
international protection 

in 

need 

of 

0 

The  economic  impacts  of  maintaining  the  status  quo  would  vary 
among MS depending on the level of asylum seekers employed in 
the informal labour market due to: excess of labour supply and 
the  possibility  of  accessing  the  national  labour  market  (labour 
market restrictions etc.)  

At  EU  level  this  could  unbalance  the  distribution  of  the 
potential workforce on the common labour market. 

The  impact  of  maintaining  the  status  quo  on  persons  in  need  of 
international  protection  would  be  that  of  keeping  access  to 
treatment  throughout  the  EU  unequal  and  inadequate  with 
respect  notably  to  employment,  material  reception  conditions  and 
health  care  due  to  the  great  differences  in  the  application  of  the 
Directive at national level. Issues such as that of detention would 
remain unchanged, leaving asylum seekers in diverse and in some 
cases inadequate living conditions. 

Impact on third countries 

0 

Preserving the status quo would have no impact on third countries.  

Fundamental rights 

0 

As  stated  in  the  evaluation  report,  Member  States'  policies  in 
certain  cases  seem  to  fall  short  of  fundamental  rights  standards, 
which is of great concern in this respect. This is mainly attributed 
to the wide margin of discretion allowed under the Directive. If the 
status  quo  is  preserved,  this  margin  will  remain  the  same  and 
problems will continue.  

EN 

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4.2. 

Detention 

Legislative 

Option  1:  This  option  envisages  specifically  addressing  the  issues  of  conditions, 
grounds and length of detention. Certain procedural guarantees will also be provided 
such as the right to be informed of the national procedures for challenging detention 
before a court or the  right  to  be  informed of the reasons for detention. Detention  of 
any person identified as having special needs after an individual examination of their 
situation will be prohibited.  

Option  2:  As  under  option  1,  the  Directive  will  specifically  address  conditions  and 
grounds of detention. In particular, conditions of detention will be introduced taking 
into consideration current EU rules and international legal standards and ECtHR case-
law (i.e. separation of asylum seekers from other third-country nationals). Moreover, 
grounds of detention will be expressly specified in view of ensuring that detention is 
applied only as an exceptional measure. The issue of length of detention will not be 
specifically  addressed;  however  a  number  of  minimum  standards  will  be  laid  down, 
such as ensuring that detention is never indefinite or unduly prolonged.  

Procedural  guarantees  will  also  be  provided  in  the  Directive  such  as  the  right  to  be 
informed of the national procedures for challenging detention before a court and the 
right to be informed of the reasons for detention. Access to legal assistance will also 
be facilitated and periodic review of detention will also be foreseen. 

Concerning vulnerable persons this option states that they could only be detained if it 
is considered, after an individual examination of their situation, that their health and 
well-being will not deteriorate. Minors would not be detained unless it is in their own 
interest, whereas unaccompanied minors should never be detained. 

Practical cooperation 

The  Member  States  could  make  use  of  best  practices  in  the  area  of  detention 
especially  in  exchanging  best  policies  with  those  Member  States  that  provide  for 
alternatives  to  detention  (financial  guarantee,  provision  of  a  guarantor,  etc.).  This 
could be achieved within the EURASIL framework.  

4.3. 

To  guarantee  that  the  needs  of  vulnerable  persons  and  other  persons 
with special needs are timely and adequately addressed 

Legislative 

Option  1:  Under  this  option  special  needs  would  be  dealt  with  in  a  horizontal  way. 
The EU could adopt a new legislative instrument with a view to addressing all aspects 
of vulnerable persons. This would include modalities of reception (including access to 
the labour market, freedom of movement, access to health care, education of minors 
and training of staff in contact with asylum seekers), access to the asylum procedure, 
Dublin II cases and return when not legally on the territory.  

EN 

30 

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Option 2: This option aims at ensuring higher standards of treatment for persons with 
special needs by providing clearer guidelines within the existing Directive on how to 
better cater for this category of applicants, especially minors.  

This would be achieved by more clearly defining certain key notions in the Directive 
such  as  'necessary  medical  or  other  assistance'  with  a  view  to  at  least  covering 
psychological  assistance.  Additionally  this  option  aims  to  ensure  that  vulnerable 
persons have access to health care under the same conditions as nationals.  

Moreover,  this  option  envisages  the  establishment  of  an  identification  procedure 
available upon lodging an application as well as throughout the asylum procedure if 
necessary, providing for adequate treatment and follow-up of individual cases.  

To  ameliorate  accommodation  conditions  in  reception  centres,  the  Directive  would 
expressly  place  an  obligation  on  Member  States  to  prevent  gender-related  crimes. 
Concerning  minors,  this  option  aims  at  ensuring  that  in  all  cases  children  will  have 
access  to  education  within  three  months  and  that  they  will  benefit  from  preparatory 
classes  and  specific  education  in  view  of  their  access  and  full  integration  into  the 
national  schooling  system.  Finally,  under  this  option  the  Directive  will  expressly 
provide  for  the  need  to  ensure  adequate  training  in  relation  to  the  specific  needs  of 
victims of torture or rape.  

Practical Cooperation 

Option 1: Member States would exchange best practices regarding the establishment 
of  mechanisms  that  would  sufficiently  address  special  needs  within  the  EURASIL 
framework.  For  example,  Member  States  could  exchange  views  on  how  to  ensure  a 
proactive  approach  to  identifying  special  needs  and  guarantee  the  availability  of 
adequate treatment. Furthermore, best practices concerning training of staff in contact 
with asylum seekers could also be exchanged. 

Option  2:  The  Commission  would  coordinate  efforts  for  the  adoption  of  an  EU 
handbook  that  could  include:  best  training  practices,  guidelines  on  identification  of 
special needs, accommodation of vulnerable persons, etc.  

4.4. 

To ensure adequate standards for material reception conditions  

Legislative 

Level of material reception conditions  

Option  1:  Under  this  option  the  Directive  would  expressly  allow  asylum  seekers  to 
fully integrate into the social welfare system of the hosting Member State. In relation 
to  housing  facilities  in  particular,  the  Directive  would  stipulate  that  authorities  must 
ensure, as soon as possible but in any case not exceeding a period of three months, the 
removal  of  asylum  seekers  from  accommodation  centres  and  their  re-allocation  to 
individual accommodation. 

Option  2:  This  option  entails  reinforcing  the  Commission's  monitoring  role  in 
ensuring  the  correct  implementation  of  the  Directive  regarding  the  level  of  material 
reception  conditions  available  to  asylum  seekers  in  Member  States.  This  will  be 
achieved by introducing the following measures: Firstly, a quantitative approach will 

EN 

31 

   EN

entail  the  introduction  of  benchmarks  regarding  access  to  material  reception 
conditions (i.e. minimum level of social assistance provided to nationals). Secondly, 
to ensure the correct implementation of this provision a reporting requirement will be 
introduced  for  Member  States  (what  criteria  are  taken  into  consideration  when 
granting financial support, how are special needs taken on board, provide data on the 
number of asylum seekers receiving financial support, etc.)  

Withdrawal/reduction of reception conditions 

Option  1:  Under  this  option  Member  States  would  be  prohibited  from  reducing  or 
withdrawing  reception  conditions  in  all  circumstances  except  where  asylum  seekers 
have  sufficient  resources  and  do  not  require  additional  financial  assistance.  In  that 
case this option foresees that asylum seekers would at least have access to necessary 
treatment of illness. Moreover, this option would guarantee the right to appeal against 
a decision to withdraw or reduce reception facilities. 

Option 2: This option envisages retaining the conditions currently stipulated under the 
Directive concerning the reduction/withdrawal of reception conditions. In these cases 
this  option  foresees  that  asylum  seekers  would  at  least  have  access  to  necessary 
treatment of illness. Moreover, this option would guarantee the right to appeal against 
a decision to withdraw or reduce reception facilities. 

Practical cooperation  

Member States could exchange best practices in relation to the modalities adopted for 
ensuring  a  flexible  reception  conditions  system  that  guarantees  high  levels  of 
treatment of asylum seekers. This could be achieved within the EURASIL framework. 
In particular, ideas could be shared on how to ensure the right to privacy and family 
life in accommodation centres or regarding the structure of the social welfare system 
with a view to effectively addressing the needs of asylum seekers.  

4.5. 

Facilitate access to the labour market 

Legislative 

Option  1:  The  Directive  would  be  amended  with  a  view  to  ensuring  access  to 
employment immediately upon lodging an application for international protection. It 
would further ensure that no additional restrictions to employment could be imposed 
(such  as  requirements  for  a  work  permit,  sectoral  or  seasonal  restrictions,  time 
limitations, etc.) 

Option  2:  This  option  entails  shortening  the  period  during  which  asylum  seekers 
cannot  access  employment,  for  example  from  immediately  to  a  maximum  of  six 
months. This option also ensures that no additional restrictions to employment can be 
imposed  (such  as  requirements  for  a  work  permit,  sectoral  or  seasonal  restrictions, 
time  limitations,  etc.)  if  in  practice  they  would  hinder  the  asylum  seeker's  right  to 
access  employment  (i.e.  Member  States  could  require  a  work  permit  as  long  as  this 
would not further delay access to the labour market).  

Practical cooperation 

EN 

32 

   EN

Option  3:  Member  States  could  exchange  best  practices  on  regulating  access  to  the 
labour market in a more effective way without endangering asylum seekers' rights to 
access  employment.  For  example,  a  Member  State's  tradition  of  not  requiring  work 
permits and/or of allowing immediate access to employment could be presented as a 
counterpoint  to  those  Member  States  which  apply  stricter  measures  in  this  domain. 
This exchange could occur within related fora such as EURASIL.  

4.6. 

Define the scope of application of the Directive 

Legislative 

Option 1: This policy option aims at making it clear that reception conditions must be 
available  to  all  areas  hosting  asylum  seekers  including  detention  centres  and  to  all 
types  of  procedures  including  Dublin  cases.  It  further  envisages  amending  the 
Directive in order to extend its scope to include subsidiary protection applicants.  

Option 2: This option will make it clear that reception conditions must be available to 
all  areas  hosting  asylum  seekers  including  detention  centres  and  to  all  types  of 
procedures including Dublin II cases. It further envisages extending the scope of the 
Directive  to  include  subsidiary  protection  applicants,  but  this  would  not  happen 
immediately as provision would be made for a transitional period. 

Option 3: This option envisages amending the Directive in order to extend its scope to 
include  applications  for  subsidiary  protection.  Regarding  the  applicability  of  the 
Directive  in  cases  of  detained  asylum  seekers  or  asylum  seekers  under  specific 
procedures such as Dublin cases, this option provides for the current wording of the 
Directive to be retained and for this issue to be addressed by initiating infringement 
procedures against those Member States that apply such exclusive practices.  

5. 

ASSESSMENT  OF  POLICY  OPTIONS  AND  IDENTIFICATION  OF  PREFERRED 
POLICY OPTION 

Each  policy  option  is  assessed  against  all  the  alternatives  in  order  to  identify  the 
preferred policy option for each specific objective. 

Administrative  costs  are  presented  in  Annex  V  and  Budgetary  and  Labour  Market 
impacts  in  section  6.1  below.  However,  this  impact  assessment  does  not  include 
detailed implementation costs as it is not possible to identify, from the data submitted 
by Member States in relation to the application of the Reception Conditions Directive, 
all the relevant costs incurred in this policy area.  

5.1. 

Detention 

Legislative 

Option  1  will  to  a  great  extent  ensure  a  more  coherent  and  common  approach  to 
detention  throughout  the  EU.  It  would  also  ensure  higher  standards  of  treatment  for 
asylum seekers since it provides for certain procedural safeguards such as the right to 
be  informed  of  the  grounds  for  detention  and  the  possibilities  under  national  law 
whereby  detention  may  be  challenged.  This  option  also  ensures  higher  standards  of 
treatment of detainees by referring to conditions of detention. However, establishing 

EN 

33 

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at  EU  level  a  maximum  length  of  detention  would  be  a  difficult  exercise,  taking  in 
particular into consideration the wide divergence of national approaches on this issue.  

Option  2  provides  the  same  level  of  protection  to  asylum  seekers  as  in  option  1 
regarding  conditions  and  grounds  of  detention.  However  option  2  foresees  a  more 
flexible  provision  concerning  the  issue  of  length  of  detention  by  introducing  certain 
minimum  conditions  such  as  that  detention  should  not  be  unduly  prolonged  and 
should be as short as possible.  

Concerning vulnerable groups, option 2 prohibits the detention of  children based  on 
the principles established under the UN Convention on the Rights of the Child, while 
concerning  other  categories  of  vulnerable  persons  it  ensures  that  they  can  only  be 
detained if their already vulnerable situation will not be aggravated due to detention. 
In  this  respect  the  fundamental  rights  of  vulnerable  persons  are  well  respected.  In 
addition to what is provided under option 1, option 2 foresees for a periodic review of 
detention,  thus  enhancing  the  monitoring  of  the  relevant  provisions  in  the  Directive 
both at national and at EU level. Additionally this option further facilitates access to 
legal assistance.  

Based  on  the  above,  option  2  is  the  preferred  measure  from  the  point  of  view  of 
ensuring  that  detention  is  not  arbitrary.  It  presents  the  most  balanced  approach  in 
addressing  detention  issues  while  guaranteeing  higher  standards  of  treatment  for 
detained asylum seekers, especially vulnerable persons. Limiting the use of detention 
in  certain  circumstances  would  potentially  also  have  a  positive  impact  on  the  way 
asylum  seekers  are  perceived  by  the  hosting  society,  since  in  some  cases  society  is 
inclined to assimilate detained asylum seekers with infringements of criminal law.  

This option could elicit certain concerns, in particular from Member States applying a 
policy  of  indefinite  detention  for  asylum  seekers.  However,  Member  States  could 
actually achieve a saving by limiting detention practices (see below section 6.1). The 
establishment  of  a  systematic  review  of  detention  should  not  entail  high  additional 
costs. Article 23 of the existing text of the Directive already imposes an obligation on 
Member  States  to  ensure  the  'appropriate  guidance,  monitoring  and  control  of  the 
level of reception conditions', so this new requirement could be accommodated within 
the framework of the existing obligation. This option would be welcomed by Member 
States  that  do  not  apply  systematic  detention  and  already  ensure  humane  conditions 
for detainees as well as by UNHCR and NGOs. 

Practical cooperation 

Practical  cooperation  could  bring  about  the  establishment  of  equally  effective  non-
detention  measures  at  national  level  and  assist  in  the  restriction  of  unnecessary 
detention,  especially  with  regard  to  children.  Practical  cooperation  in  combination 
with  clear  legal  obligations,  concerning  in  particular  procedural  safeguards  for 
detainees, would help to ensure that detention is not arbitrary.  

In  this  respect  practical  cooperation  will  form  part  of  the  preferred  policy  option  in 
combination with option 2.  

EN 

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5.2. 

To  guarantee  that  the  needs  of  vulnerable  groups  are  timely  and 
adequately addressed  

Legislative  

A  horizontal  approach,  as  foreseen  in  option  1,  aimed  at  regulating  all  aspects 
concerning vulnerable asylum seekers, would avoid the 'piecemeal' approach currently 
applied  and  would  therefore  ensure  more  coherency  in  this  area  of  law.  Not  being 
exclusively an asylum legal instrument (for example it would cover returns), it would 
have  a  wider  scope  of  application  than  the  Reception  Conditions  Directive  which 
could create obstacles in terms of establishing a legal basis under the EU Treaty or if a 
legal  basis  is  found,  with  regard  to  Council  negotiations  that  could  prove  lengthy 
since certain parts of the proposal would require unanimity vote (those in relation to 
immigration).  

Option  2  would  enhance  the  standards  of  treatment  regarding  vulnerable  persons  in 
the  areas  already  stipulated  under  the  Directive,  without  referring  to  the  issue  of 
persons with special needs outside the asylum procedure. However, amendment of the 
current  Directive  would  ensure  a  more  immediate  solution  to  deficiencies. 
Additionally,  option  2  ensures  higher  standards  of  treatment  since  it  provides  inter 
alia  for  the  timely  detection  of  vulnerabilities,  access  to  adequate  healthcare  and 
places  an  obligation  on  Member  States  to  prevent  gender-based  violence  in 
accommodation  centres.  Rights  of  children  will  also  be  reinforced  by  guaranteeing 
access  to  education  within  three  months  and  the  availability  of  preparatory  classes 
ahead of their integration into the national education system.  

This  option  could  entail  additional  administrative  costs  as  a  result  of  establishing  a 
national  mechanism  to  detect  vulnerabilities  and  ensuring  adequate  training  to  deal 
with victims of torture. Although this mechanism could be accommodated within an 
existing  structure  (such  as  a  unit  in  a  state  hospital),  specialists  will  have  to  be 
available for detecting special needs.  

Practical cooperation 

Options  1  and  2  would  further  ensure  higher  standards  of  treatment  of  vulnerable 
persons.  Exchange  of  best  practices  will  assist  in  the  implementation  of  national 
policies that take on board the vulnerable situation of persons with special needs. In 
this  respect  both  examples  of  practical  cooperation  will  form  part  of  the  preferred 
policy option in combination with policy option 2 (legislative).  

5.3. 

To ensure adequate standards for material reception conditions  

Legislative 

Level of material reception conditions  

Integrating asylum seekers into the national welfare system, as envisaged by option 1, 
would ensure higher standards of treatment of asylum seekers since their needs would 
be  accommodated  under  the  same  modalities  applicable  to  nationals.  However,  this 
approach  would  meet  with  practical  obstacles  and  complicate  access  to  material 
reception  conditions  for  those  applicants  residing  in  reception  centres.  At  present 

EN 

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asylum seekers' reception needs are channelled through a specifically designed system 
as stipulated by the Directive; in view of the particular administrative formalities and 
language requirements concerning access to material reception conditions for asylum 
seekers,  their  full  integration  into  the  national  social  welfare  system  might  be 
unfeasible and costly. Similar obstacles will be faced by asylum seekers who are not 
fully  aware  of  the  national  procedural  formalities  to  be  fulfilled  before  accessing 
material reception conditions.  

Option 2 equally ensures a higher level of treatment of asylum seekers since Member 
States  would  be  obliged  to  grant  access  to  material  reception  conditions  within  the 
framework of specific benchmarks applied for nationals. Additionally a certain degree 
of flexibility is granted in deciding whether support would be channelled within the 
organised reception system or integrated into the national social support mechanisms. 
Option  2  will  also  enhance  the  Commission's  role  as  guardian  of  the  Directive  by 
introducing  a  reporting  requirement  with  regard  to  the  benefits  granted  to  asylum 
seekers.  Regarding  housing  arrangements,  Member  States  that  mainly  accommodate 
asylum  seekers  in  reception  centres  will  face  practical  and  financial  difficulties  in 
meeting  the  requirement  of  transferring  them  within  three  months  to  private 
accommodation, as envisaged under option 1.  

In the light of the above, option 2 is the preferred measure for addressing deficiencies 
with  regard  to  material  reception  conditions,  since  it  is  feasible  and  it  also  ensures 
higher standards of treatment.  

Withdrawal/reduction of reception conditions 

Option  1  ensures  to  a  high  degree  that  asylum  seekers  are  not  left  destitute  since  it 
only  permits  the  reduction/withdrawal  of  reception  conditions  in  cases  where  the 
asylum seeker clearly has sufficient resources.  

Option 2 allows for the reduction or withdrawal of reception conditions as provided 
under  the  current  Directive.  However,  taking  into  consideration  the  serious 
consequences  that  the  reduction  or  withdrawal  of  material  reception  conditions  may 
have  for  asylum  seekers,  especially  persons  with  special  needs,  this  option  does  not 
seem to ensure an adequate standard of living.  

Both  measures  would  entail  the  same  administrative  costs  regarding  the  right  of 
appeal  against  decisions  on  withdrawal/reduction  of  reception  conditions,  stemming 
from a likely increase in appeals in those Member States that do not already grant this 
right.  

In  this  respect  and  also  taking  into  consideration  current  jurisprudence  inviting 
concerns  concerning  the  risk  to  infringe  fundamental  rights,  option  1  is  the  most 
appropriate  policy  option  since  it  could  ensure  that  asylum  seekers  are  not  left 
destitute in cases of reduction or withdrawal of material reception conditions.  

Practical cooperation 

In  combination  with  option  2,  practical  cooperation  would  assist  Member  States  in 
exchanging  best  practices  regarding  the  implementation  at  national  level  of  policies 
that ensure adequate standards of material reception conditions.  

EN 

36 

   EN

5.4. 

Facilitate Access to the Labour Market 

Legislation 

Immediate  and  unconditional  access  to  employment  for  asylum  seekers  would 
significantly  increase  the  possibilities  for  asylum  seekers  to  become  more  self-
sufficient  and  would  most  effectively  address  the  phenomenon  of  secondary 
movements. However, this option presupposes a certain level of EU harmonisation of 
national policies on access to the labour market. Since this has not yet been achieved, 
option 1 would be likely to cause implementation difficulties within Member States. 
Moreover,  Member  States  would  be  reluctant  to  adopt  such  a  rigid  labour  market 
policy, given that this could result in more favourable treatment of asylum seekers as 
against  other  third-country  nationals  legally  present  on  the  territory  who  would  still 
need  to  comply  with  certain  restrictive  employment  requirements.  Member  States 
would  also  argue  that  immediate  access  to  the  labour  market  could  become  a  'pull 
factor'  for  third-country  nationals  seeking  to  enter  the  EU  solely  on  economic 
grounds.  

Option  2  incorporates  the  beneficial  elements  for  asylum  seekers  envisaged  under 
option 1. In particular it protects the right to employment against restrictive national 
policies, ensuring in this respect a high level of treatment for asylum seekers. It also 
promotes  self-sufficiency  and  independence  amongst  asylum  seekers  and  assists  in 
facilitating  integration  into  the  hosting  society  and  in  avoiding  unnecessary  social 
welfare  payments.  Considering  that  further  harmonisation  of  labour  market  rules 
would provide asylum seekers with less incentive to move to another more 'generous' 
Member State, this policy option would also assist in limiting secondary movements, 
although  to  a  lesser  extent  than  option  1  since  the  application  of  different  time 
restrictions will still be possible.  

Option 2 however would interfere to a lesser extent with national labour policies, for 
two  main  reasons:  First  and  foremost,  although  it  shortens  time  restrictions  for 
accessing  the  labour  market,  it  retains  the  notion  of  a  maximum  period,  from 
immediately to six months, during which access must be granted; it therefore leaves 
room  for  Member  States  to  adopt  their  national  time  frames  on  accessibility  of 
employment.  Secondly,  it  does  not  exclude  the  imposition  of  conditions  allowing 
Member  States  to  control  to  a  certain  extent  the  supply  and  demand  on  the  labour 
market. Access to the labour market under option 2 is therefore not unconditional. The 
aim of the option is merely to better clarify the right already enshrined in the current 
Directive, that asylum seekers must be able to access employment.  

In the light of the above and also based on current policies (almost half of the Member 
States already allow access to employment either immediately or within six months) 
and  on  contributions  received  from  stakeholders  to  the  Green  Paper  consultation 
process, option 2 seems the most feasible and justified way to facilitate access to the 
labour market since, as stated above, it retains a certain level of flexibility for Member 
States and ensures at the same time higher standards of treatment for asylum seekers.  

Practical cooperation 

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As  stated  above,  it  is  difficult  to  lay  down  common  rules  on  access  to  the  labour 
market  within  the  EU.  Practical  cooperation,  channelled  by  the  Commission,  would 
be  one  way  to  promote  best  practices  in  Member  States  that  can  ensure  the  correct 
implementation  of  the  Directive.  Within  this  non-legislative  framework,  the 
experience of those Member States establishing less restrictive labour market policies 
would  be  compared  to  those  that  impose  the  most  restrictions.  In  this  respect,  this 
forum could illustrate feasible ways of retaining a flexible labour market policy while 
facilitating access to employment for asylum seekers.  

Practical cooperation will be most effective in combination with option 2 since certain 
obligations  need  to  be  ensured  with  a  view  to  achieving  the  set  objective  of 
facilitating  access  to  the  labour  market  (such  as  shortening  time  restrictions). 
Accordingly,  this  measure  will  be  favoured  in  combination  with  legislative 
intervention under option 2.  

5.5. 

Further clarify the scope of application of the Directive and extend it to 
cover subsidiary protection applicants 

Legislative 

At present, since in practice Member States do not exclude reception conditions in the 
case of applications for subsidiary protection, the transposition of the extension of the 
Directive  at  national  level  with  a  view  to  covering  these  cases  would  not  be 
problematic. In this respect, providing a transitional period for the implementation of 
this  extension  seems  unnecessary.  With  regard  to  the  issue  of  application  of  the 
Directive in detention centres and during certain types of legal procedures, although 
there  is  no  clear  evidence  suggesting  that  these  cases  are  not  to  be  covered,  the 
wording of the Directive leaves room for some ambiguity. In view of this uncertainty, 
it  might  be  difficult  to  provide  a  strong  legal  basis  with  a  view  to  initiating  an 
infringement case against those Member States practising such policies.  

In the light of the above, the policy option that would most effectively ensure a clear 
definition  of  the  scope  of  the  Directive  in  the  above-mentioned  cases  is  option  1. 
Under  this  option  the  Directive  would  explicitly  and  thoroughly  clarify  both  the 
rationae  materiae  (detention  centres,  border  procedures,  Dublin  cases,  etc.)  and  the 
rationae personae (subsidiary applicants). The effectiveness of this clarification will 
be seen once the new Directive enters into force, thereby guaranteeing equal treatment 
amongst asylum seekers without unnecessary delays.  

Operational 
Objectives 

To guarantee legal 
safeguards for 
detained asylum 
seekers and to ensure 
that detention is not 
arbitrary 

Presentation of the Preferred Policy Option 

PREFERRED POLICY OPTION: 

Legislate 

Under  this  option  the  Directive  will  specifically  address  conditions  and  grounds  of  detention.  In 
particular,  conditions  of  detention  will  be  introduced  taking  into  consideration  current  EU  rules  and 
international  legal  standards  and  ECtHR  case-law  (i.e.  separation  of  asylum  seekers  from  other  third-
country  nationals).  Moreover,  grounds  of  detention  will  be  expressly  specified  in  view  of  ensuring  that 
detention  is  applied  only  as  an  exceptional  measure.  The  issue  of  length  of  detention  will  not  be 
specifically addressed. However a number of minimum standards will be laid down, such as ensuring that 

EN 

38 

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Operational 
Objectives 

PREFERRED POLICY OPTION: 

detention is never indefinite or unduly prolonged.  

Practical cooperation 

The Member States could make use of best practices in the area of detention especially in exchanging best 
policies  with  those  Member  States  that  provide  for  alternatives  to  detention  (financial  guarantee, 
provision of a guarantor, etc). This could be achieved within the EURASIL framework.  

Legislate 

This  option  aims  at  ensuring  higher  standards  of  treatment  for  persons  with  special  needs  by  providing 
clearer guidelines within the existing Directive on how to deal with this category of applicants, especially 
minors.  This  would  be  achieved  by  more  clearly  defining  certain  key  notions  in  the  Directive,  such  as 
'necessary  medical  or  other  assistance'  with  a  view  to  at  least  covering  psychological  assistance. 
Moreover, this option envisages the establishment of an identification procedure available upon lodging 
an application as well as throughout the asylum procedure if necessary, providing for adequate treatment 
and  follow-up  of  individual  cases.  To  ameliorate  accommodation  conditions  in  reception  centres,  the 
Directive would expressly oblige Member States to prevent gender-related crimes. Concerning the issue 
of education of minors, this option aims at ensuring that in all cases children will have access to education 
within  three  months  and  that  they  will  benefit  from  preparatory  classes  in  view  of  their  access  and  full 
integration  into  the  national  schooling  system.  Finally,  under  this  option  the  Directive  will  expressly 
provide  for  the  need  to  ensure  adequate  training  with  a  view  to  addressing  specific needs of  victims  of 
torture or rape.  

Practical Cooperation 

-Member  States  would  exchange  best  practices  regarding  the  establishment  of  mechanisms  that  would 
sufficiently  address  special  needs  within  the  EURASIL  framework.  For  example,  Member  States  could 
exchange views on how to proactively identify special needs and guarantee the availability of adequate 
treatment. Furthermore, best practices concerning training of staff in contact with asylum  seekers could 
also be exchanged. 

-The Commission would coordinate efforts for the adoption of an EU handbook that could include best 
training  practices,  guidelines  on  identification  of  special  needs,  accommodation  of  vulnerable  persons, 
etc.  

Legislate 

Level of material reception conditions 

This option entails reinforcing the Commission's monitoring role in ensuring the correct implementation 
of  the  Directive  regarding  the  level  of  material  reception  conditions  available  to  asylum  seekers  in 
Member  States.  Specifically,  this  will  be  achieved  by  introducing  the  following  measures:  Primarily,  a 
quantitative  approach  will  be  followed  by  means  of  benchmarks  regarding  access  to  material  reception 
conditions  (minimum  amount of social support). Secondly, to ensure the correct implementation of this 
provision  a  reporting  requirement  will  be  introduced  for  Member  States  (what  criteria  are  taken  into 
consideration when granting financial support, how are special needs taken on board, provide data on the 
number of asylum seekers receiving financial support, etc.)  

Withdrawal/ reduction 

Under this option Member States would be prohibited from reducing or withdrawing reception conditions 
in all circumstances except where asylum seekers have sufficient resources and do not require additional 
financial  assistance.  In  that  case  this  option  foresees  that  asylum  seekers  would  at  least  have  access  to 
necessary  treatment  of  illness.  Moreover,  this  option  would  guarantee  the  right  to  appeal  against  a 
decision to withdraw or reduce reception facilities.  

Practical cooperation 

Member States could exchange best practices in relation to the modalities adopted for ensuring a flexible 

To  guarantee  that  the 
needs  of  vulnerable 
groups  are  timely  and 
sufficiently addressed 

To ensure adequate 
standards for material 
reception conditions 
and access to health 
care while taking into 
account gender and 
age-specific 
considerations 

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   EN

 
 
 
 
 
Operational 
Objectives 

PREFERRED POLICY OPTION: 

reception  conditions  system  that  guarantees  high  levels  of  treatment  of  asylum  seekers.  This  could  be 
achieved within the EURASIL framework. In particular, ideas could be shared on how to ensure the right 
to  privacy  and  family  life  in  accommodation  centres  or  regarding  the  organisation  of  a  social  welfare 
system in view of effectively addressing the needs of asylum seekers.  

Legislate 

This option entails imposing a shorter period during which asylum seekers cannot access employment, for 
example  from  immediately  to  a  maximum  of  six  months  upon  lodging  an  application  for  asylum.  This 
option also ensures that no additional restrictions to employment can be imposed (such as requirements 
for a work permit, sectoral or seasonal restrictions, time limitations, etc) if in practice they could hinder 
the asylum seeker's right to access employment ( i.e. Member States could require a work permit as long 
as this would not further delay access to work).  

Facilitate access to 
labour market 

Practical cooperation 

Member  States  could  exchange  best  practices  on  regulating  access  to  the  labour  market  in  a  more 
effective way without endangering asylum seekers' rights to access employment. For example, a Member 
State's tradition of not requiring work permits and/or of allowing immediate access to employment could 
be presented as a counterpoint to other Member States' stricter  measures in this domain.  This exchange 
could occur within related fora such as EURASIL.  

Legislate 

Define the scope of 
application of the 
Directive 

This policy option aims at making it clear that reception conditions must be available to all areas hosting 
asylum  seekers  including  detention  centres  and  to  all  types  of  procedures  including  Dublin  II  cases.  It 
further  envisages  amending  the  Directive  in  order  to  extend  its  scope  to  cases  involving  subsidiary 
protection applicants. 

EN 

40 

   EN

 
 
6. 

ASSESSMENT OF PREFERRED POLICY OPTION  

On the basis of the assessment of the policy options presented in section 5 it is clear 
that none of the individual policy options completely addresses the problems or fully 
achieves  the  objectives  sought.  However,  by  combining  different  policy  options,  a 
higher degree of effectiveness could be achieved.  

Accordingly,  the  preferred  option  has  been  designed  by  merging  the  policy  options 
that  correspond  to  each  specific  objective.  The  preferred  policy  option  combines 
legislative  amendments  with  a  view  to  ensuring  higher  standards  of  treatment  for 
asylum  seekers  and  practical  cooperation  measures  that  would  allow  more  coherent 
and efficient implementation of the legislation. 

6.1. 

Budgetary and Labour Market impacts of envisaged measures  

I. 

Access to the labour market 

Shortening time restrictions regarding access to employment (from a maximum of 12 
to a maximum of 6 months) would have an insignificant employment impact on the 
national  labour  market.  According  to  available  EU  data,  in  2006  there  were 
216,525,000  economically  active  persons  between  15  and  64  years  old,  of  whom 
198,226,000 were actually employed. Asylum applications in 2007 reached 227,000. 
Thus,  assuming  that  requests  for  employment  were  made  by  all  asylum  seekers  and 
that they all have in practice gained access to the labour market, their number would 
represent  an  increase  of  just  0.11%  in  the  employed  population  and  0.10%  in  the 
economically  active  population.  These  percentages  are  in  reality  even  lower  since 
some  of  the  asylum  seekers  are  not  of  working  age  (elderly,  minors).  Consequently 
these rates are rather trivial and are not likely to have an impact on the labour market.  

It should also be underlined that Member States may have the power to impose labour 
market  restrictions,  notably  with  a  view  to  meeting  labour  market  demand  in  those 
economic  sectors  that  lack  manpower  and  in  order  to  avoid  overburdening  specific 
sectors. 

As  far  as  economic  impact  is  concerned,  facilitating  access  to  the  labour  market 
could even achieve savings for those Member States currently granting access within 
12 months from the time an asylum application is registered. This is mainly due to the 
fact that access to the labour market will assist asylum seekers in becoming more self-
sufficient,  and  therefore  additional  welfare  assistance  would  be  avoided.  Member 
States would further benefit from contributions made by employed asylum seekers to 
their fiscal system through labour taxation.  

At national level, this proposed measure does not seem to have stirred great concerns. 
The time frame of 6 months is considered appropriate, judging from contributions sent 
to  the  Commission  during  the  Green  Paper  consultation  process.  It  should  also  be 
emphasised  in  this  respect  that  a  number  of  Member  States  have  already  shortened 
time restrictions in regard to access to employment without any significant impact on 
their national labour market (immediate access to employment is allowed in Greece, 

EN 

41 

   EN

 
whereas the limitation period is 20 days in Portugal, 3 months in Austria and Finland, 
4 months in Sweden, 6 months in Italy, Spain, Netherlands, Cyprus, and 9 months in 
Luxembourg).  

II. 

Vulnerable groups 

Identification of special needs and access to health care  

The preferred option involves the establishment of a mechanism at national level for 
identifying  those  asylum  seekers  with  special  needs.  From  a  legal  point  of  view  the 
current Directive does not explicitly require a specific procedure to be put in place in 
order to detect special needs; it merely requires that the  needs of vulnerable asylum 
seekers,  once  identified,  should  be  taken  into  account  by  the  authorities.  In  this 
respect,  the  proposed  measure  introduces  a  new  obligation  for  Member  States  that 
affects all asylum seekers, since the identification of special needs would have to take 
place once an application has been lodged.  

In the current circumstances it seems that a large number of Member States would be 
faced  with  additional  financial  efforts  in  implementing  this  provision.  At  least  11 
Member  States,  some  of  which  receive  large  numbers  of  asylum  applications, 
currently  do  not  provide  for  such  a  procedure.  Six  Member  States  operate  such  a 
mechanism at the beginning of the asylum procedure but in at least two of those the 
identification  procedures  seem  inadequate,  and  two  Member  States  identify  special 
needs  only  in  the  case  of  unaccompanied  minors  and  only  at  a  later  stage  of  the 
asylum procedure.  

Based on information from National Red Cross Societies managing reception centres 
for asylum seekers, the costs that such an identification procedure entails could vary 
in Member States from €50 to a maximum  of €150 per person. This procedure always 
includes  a  medical  examination  by  a  physician  and  screening  by  a  doctor  or  nurse 
specifically  trained  to  detect  special  needs;  in  particularly  difficult  cases,  specific 
psychological  or  psychiatric  screening  is  also  provided.  Additionally,  based  on 
information  received  from  one  Member  State  carrying  out  such  a  procedure  for  all 
newly  arrived  asylum  seekers,  the  costs  incurred  are  €195  per  person  including  a 
medical examination, screening by qualified personnel in order to detect special needs 
and translation services. 

It  should  be  emphasised  that  all  Member  States  already  provide  for  a  medical 
examination  upon  the  lodging  of  an  asylum  application.  In  this  respect  additional 
costs will be incurred only for the upgrading of this examination in order to ensure the 
involvement  of  qualified  personnel  in  this  procedure.  The  Directive  leaves  it  to 
Member  States  to  decide  on  the  modalities  that  need  to  be  established  in  order  to 
comply  with  this  new  obligation;  therefore  Member  States  could  operate  within 
existing frameworks such as the medical examination.  

Moreover,  the  envisaged  measure  aimed  at  ensuring  equal  access  to  health  care  for 
vulnerable persons and nationals would entail costs for those Member States currently 
providing  a  lower  level  of  treatment  for  this  category  of  applicants.  Six  Member 
States already provide for equal access to health care.  

EN 

42 

   EN

The  budgetary  consequences  of  this  proposed  measure  are  difficult  to  assess,  taking 
into  consideration  the  divergences  in  EU  healthcare  policies  (for  example,  some 
Member  States  cover  preventive  health  care  whereas  others  do  not).  It  should  be 
noted, however, that the impact should not be extensive, taking into consideration the 
fact  that  asylum  applicants  in  2007  represented  0.04%  of  the  total  EU  population. 
Since  access  to  health  care  under  the  same  conditions  as  nationals  will  only  affect 
vulnerable  asylum  seekers  who  require  specific  treatment,  this  percentage  will  be 
even lower. 

It should be emphasised that deficiencies identified in Member States concerning the 
treatment  of  vulnerable  persons  raise  strong  concerns  regarding  respect  of 
fundamental  rights.  Consequently  it  is  extremely  important  to  rectify  these 
problematic situations through legislative intervention. In this respect the political and 
legal 
the  financial 
considerations. 

these  deficiencies  should  prevail  over 

implications  of 

Access to education for minors 

Currently, it seems that the great majority of Member States do not delay in general 
access  to  education  for  minors  for  more  than  three  months  after  the  application  for 
asylum is lodged. In this respect the envisaged amendment (of ensuring, without any 
derogation,  access  within  a  maximum  of  three  months)  should  have  no  substantive 
impact on Member States. 

III. Including in the scope of the Directive applicants for subsidiary protection 

Only  three  Member  States  exclude  by  law  applicants  for  subsidiary  protection  from 
the  scope  of  the  Directive.  However,  due  to  the  introduction  of  a  common  asylum 
application  for  both  forms  of  international  protection  (refugee  and  subsidiary 
protection  status),  applicants  for  subsidiary  protection  are  not, 
in  practice, 
distinguished  from  applicants  for  refugee  status  and  therefore  do  benefit  from 
reception conditions. However, for reasons of legal clarity and coherence with the EU 
body of law, it is necessary to ensure that they are covered by the Directive.  

In  this  respect  the  envisaged  measure  aiming  to  cover  in  the  Directive  subsidiary 
protection applicants does not entail any economic impact for Member States. 

IV.  Clarifying  that  Dublin  applicants  should  benefit  from  Reception 
Conditions 

Three  Member  States  refuse  to  apply  reception  conditions  to  Dublin  cases  (for  the 
period  2003-2006  the  average  number  of  affected  applicants  per  year  in  all  three 
Member  States  was  approximately  8,600).  In  this  respect  the  envisaged  amendment 
ensuring  that  Dublin  applicants  benefit  from  reception  conditions  would  have  no 
significant economic impact at EU level.  

It should also be underlined that the envisaged provision merely clarifies an existing 
obligation  under  the  current  Directive;  any  costs  these  three  Member  States  would 
face would be attributed to the fact that their policies are not in line with the current 
Directive on this issue. 

EN 

43 

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V. 

Detention 

The preferred option concerning detention is twofold: it concerns i) the application of 
the  Directive  in  detention  facilities,  and  ii)  the  grounds  and  conditions  under  which 
detention is applied.  

Scope: At least nine Member States do not apply the Reception Conditions Directive 
to detention areas. It is not possible to estimate the number of affected asylum seekers 
due  to  the  fact  that  Member  States  either  do  not  provide  data  on  the  number  of 
detained asylum seekers or available data are not comparable since they include other 
third-country nationals in detention. 

As stated in the problem definition of this report, the envisaged amendment providing 
that  reception  conditions  apply  to  all  geographic  areas  and  facilities  hosting  asylum 
seekers is merely a clarification of an existing obligation. In this respect costs deriving 
from  the  implementation  of  this  new  provision  would  be  attributed  to  the  fact  that 
these nine Member States are not in line with the current Directive.  

This  proposed  provision  should  also  be  examined  together  with  the  envisaged 
measures concerning grounds and conditions of detention. 

Application of detention: Currently, the majority of Member States apply detention on 
various  grounds.  The  proposal  seeks  to  ensure  that  detention  in  the  area  of  asylum 
should  be  seen  as  unnecessary  and  applied  only  in  exceptional  cases.  It  should  be 
emphasised  that  limiting  the  use  of  detention  would  actually  achieve  savings  for 
Member  States;  owing  to  the  high  number  of  staff  employed  in  detention  centres  in 
order to meet security requirements, detention policies prove to be more costly than 
accommodating asylum seekers in open reception centres.  

If Member States decide to apply detention under the exceptional grounds set out in 
the new Directive, they would need to comply with certain requirements, namely that 
asylum  seekers  can  only  be  detained  in  specialised  facilities  separated  from  other 
third-country nationals, that male and female asylum seekers must be kept apart, etc. 
These  conditions  of  detention  could  entail  costs  for  those  Member  States  that 
currently lack the required infrastructure. However, as stated above, the fact that the 
use  of  detention  will  be  limited  will  already  achieve  savings.  Additionally,  the 
example  of  those  Member  States  (at  least  five)  currently  using  non-detention 
measures (financial guarantee, provision of a guarantor, etc., especially in relation to 
vulnerable groups) could be followed by the others in order to limit costs even further. 
It should also be emphasised that the envisaged provisions on detention aim to align 
the current Directive with international standards, namely the UN Convention on the 
Rights of the Child and the EU Charter of Fundamental Human Rights. 

Finally,  concerning  the  introduction  of  legal  safeguards  such  as  the  right  to  judicial 
review  and  the  right  to  be  informed  of  the  grounds  for  detention,  these  are  already 
provided for in EU law, in particular in the Asylum Procedures Directive, and in other 
international instruments such as the ECHR. The implementation of these provisions 
should therefore not impose an additional financial burden, as Member States should 
already comply with these standards.  

VI.  Material reception conditions 

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44 

   EN

EU Member States spend in total €1.5 billion per year fo r reception services provided 
to  asylum  seekers.  This  figure  roughly  indicates  the  current  economic  impact  of  the 
implementation  of  the  Reception  Conditions  Directive  in  Member  States.  In  reality, 
costs are lower since some Member States also include in their data services provided 
to other third-country nationals (non-asylum applicants).  

Level  of  material  reception  conditions:  the  envisaged  measure  introduces  a 
benchmark  to  be  taken  into  consideration  when  Member  States  grant  financial 
assistance to asylum seekers, namely the minimum amount of social welfare available 
to  nationals.  The  rationale  behind  this  is  to  quantify  the  meaning  of  'adequate' 
standards  of  treatment  under  the  current  Directive  and  to  further  enhance  the 
Commission's monitoring role in this respect.  

Currently, at least 15 Member States seem to provide very low financial allowances to 
asylum  seekers,  whereas  at  least  seven  Member  States  provide  financial  assistance 
identical or very close to that provided to nationals. 

It should be noted that the envisaged provision does not impose any new obligations 
on  Member  States.  Social  welfare  is  already  considered  by  Member  States  as  the 
minimum amount that must be granted to a person to allow him/her to live in human 
dignity;  in  this  respect  the  set  benchmark  corresponds  to  Member  States'  existing 
obligation of ensuring for asylum seekers a 'standard of living adequate to ensure their 
health  and  subsistence'.  Moreover,  it  should  be  emphasised  that  the  envisaged 
measure  is  in  line  with  the  principle  of  proportionality;  Member  States  are  free  to 
provide  material  reception  conditions  in  other  forms  rather  than  in  financial 
assistance.  The  level  of  financial  assistance  is  therefore  to  be  adapted  depending  on 
the level of assistance Member States provide in kind, for example.  

Those  Member  States  that  do  not  adhere  to  the  current  principle  set  out  in  the 
Directive  would  face  additional  costs  in  implementing  the  proposed  provision. 
However,  as  stated  above,  these  costs  could  be  offset  against  savings  achieved  on 
social welfare payments, due to the facilitated access to the labour market.  

Withdrawal:  The  preferred  option  aims  to  ensure  that  withdrawal  of  material 
reception  conditions  could  only  be  applied  if  the  asylum  seekers  have  sufficient 
means to survive.  

However,  the  proposed  measure  does  not  impose  any  new  obligation  on  Member 
States;  Member  States  must  implement  the  Reception  Conditions  Directive  in  line 
with fundamental rights, namely the right to life and the right to human dignity. In this 
respect they must already ensure that, in cases of reduction or withdrawal, the asylum 
seeker does not become destitute.  

It should also be noted that Member States often decide to reduce material reception 
conditions  under  certain  circumstances  but  they  very  rarely  decide  to  withdraw  all 
provided support.  

6.2. 

Other Impacts: 

EN 

Preferred policy option 

45 

   EN

Assessment Criteria  

Rating 

Motivation of the rating and aspects of the policy sub-option 
necessary to achieve the impact 

Relevance 

The  policy  option  could  strongly  contribute  to  achieving  equal 
and  higher  standards  of  reception  conditions.  The  provisions 
established  would  be  crucial  to  ensuring  that,  even  while 
maintaining a certain margin of discretion, all MS would transpose 
the  Directive  in  such  a  way  as  to  avoid  the  establishment  of 
extremely different standards of treatment. This would increase 
the  overall  level  of  the  reception  conditions  granted  by  MS  to 
people in need of international protection: 

• 

• 

• 

• 

• 

facilitating access to the labour market (prohibiting certain 
restrictions if these hinder or delay access and shortening 
time restrictions to access) would help applicants for 
international protection to benefit from employment, which 
means the opportunity to be self-sufficient while waiting for 
a decision concerning their application. However, it must be 
specified that the provisions on the possibility of imposing a 
time restriction in terms of access to the labour market, 
ranging from immediately to a maximum of six months, 
would leave a certain degree of discretion to MS; 
limiting  detention  by  providing  that  it  only  occurs  in 
exceptional  cases  would  safeguard  the  right  to  liberty. 
Introducing legal guarantees and monitoring detention would 
generate  more  equal  and  fair  application  of  detention 
measures  throughout  the  EU,  would  ensure  more  humane 
detention  conditions  and  would  assist  in  avoiding  arbitrary 
detention decisions; 
introducing measures to ensure adequate standards for 
material reception conditions and access to health care (i.e. 
introduction of benchmarks concerning the level of material 
reception conditions granted, further elaboration of the 
meaning of “adequate” or “necessary treatment of illness”, 
etc.) would lay down clearer rules in relation to the level and 
form of material reception conditions that should be available 
to asylum seekers and would assist the Commission in 
monitoring the implementation of the related provisions; 
establishing measures to guarantee that the needs of 
vulnerable groups are sufficiently and timely addressed (i.e. 
introduction of an identification procedure for persons with 
special needs) would be useful to achieve a more level 
playing field between MS and to ensure higher standards of 
treatment; 
exchanging best practices and adopting guidelines in all the 
fields of reception conditions could be a very useful 
instrument for diffusing and adopting effective solutions. 
These instruments of practical cooperation, introduced as 
accompanying measures to the legislative intervention, would 
reinforce the positive effects of legislation. Particularly, the 
participation of UNHCR and NGOs in the meetings within 
EURASYL could represent a significant input in defining 
and implementing best practices towards establishing higher 
level of protection for asylum applicants.  

The policy option would have an impact in terms of reducing the 
phenomenon  of  secondary  movements,  since  it  would  generate  a 
'standardised'  rules.  In  this  respect  differences  between  MS's 
reception policies would be limited to a great extent and applicants 
for  international  protection  would  therefore  be  less  inclined  to 
move  to  another  MS  in  order  to  be  granted  'more  generous' 
reception conditions. 

However,  it  must  be  specified  that  reception  conditions  are  only 
one  of  the  main  drivers  of  this  phenomenon  (others  are,  for 
example,  the  recognition  rates  or  the  geographic  position  of  the 
hosting MS). This intervention has weak relevance to this objective 
if not accompanied by parallel improvements in the other areas of 
the EU asylum system. 

Ensure  higher  and  more  equal 
terms  of  reception 
standards 
conditions  for  people 
in  need  of 
international protection 

in 

+ 

Reduce the phenomenon of secondary 
movements 

+ 

EN 

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Preferred policy option 

Assessment Criteria  

Rating 

Motivation of the rating and aspects of the policy sub-option 
necessary to achieve the impact 

Feasibility 

In  terms  of  transposition  feasibility,  difficulties  could  arise 
concerning some of the provisions proposed: 

• 

• 

• 

• 

• 

• 

• 

Transposition feasibility 

+ 

taking 

reception  conditions, 

the  possibility  of  limiting  the  restrictions  on  access  to  the 
labour  market  might  not  be  acceptable  for  some  MS  that 
already apply numerous labour conditions. It should be stated 
however  that  the proposed policy  option  maintains  a  certain 
margin  of  discretion  for  MS  concerning  the  imposition  of 
labour  market  conditions;  Moreover,  almost  half  of  the  MS 
already  allows  access  to  employment  either  immediately  or 
within  a  maximum  period  of  6  months,  therefore  the 
proposed  time  limitations  is  not  expected  to  bring  forward 
substantial oppositions from MS. 
concerns  could  arise,  but  in  relative  terms,  regarding  the 
introduction of conditions of detention since MS would need 
to  adapt  their  policies  to  these  new  guidelines.  However,  it 
must be specified that this would determine  minor problems 
taking  into  consideration  the  fact  that  these  guidelines  are 
mainly based on already existing international obligations in 
view  of  ensuring  humane  treatment  of  all  persons  in  the 
territory of a MS, including detainees; 
the proposed measures would require MS to ensure adequate 
levels  of  material 
into 
consideration  the  level  of  support  available  to  nationals, 
which would require considerable commitment on the part of 
MS;  However,  some  MS  already  allow  asylum  seekers  to 
access the national social aid system; 
the  introduction  of  the  reporting  mechanism  on  the  types  of 
social benefits and amounts granted to asylum seekers would 
constitute  an  additional  form  of  supervision  which  would 
ensure the correct  application of legislation. MS  might raise 
concerns regarding the feasibility of such a reporting system; 
On  the  other  hand  MS  are  already  obliged  to  provide  such 
information  as  signatory  parties 
International 
Convention on Economic, Social and Cultural rights (part IV 
of the Convention); 
the  introduction  of  guidelines  for  essential  notions  such  as 
treatment  of  illness  and  access  to  health  care  could  pause 
concerns since MS may give different interpretations to these 
concepts; However, the proposed legislation will not provide 
common definitions of these notions, allowing MS a  certain 
degree of manoeuvre in this respect; 
the  introduction  of  the  possibility  to  appeal  against  the 
withdrawal  or  reduction  of  reception  conditions  might  be 
problematic for those MS which do not at present provide for 
this possibility.  
adopting  a  procedure  for  the  identification  of  vulnerable 
persons  throughout  the  entire  asylum  process  would  raise 
concerns  in  terms  of  how  such  a  mechanism  could  be 
established in practice. However, the proposed Directive does 
not  require  MS  to  set  up  a  new  institutional  framework  in 
order  to  ensure  identification  of  special  needs;  consequently 
MS  could  arrange  for  the  identification  procedure  to  take 
place at the time of the medical examination which almost all 
of them already carry out.  

the 

to 

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47 

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Preferred policy option 

Assessment Criteria  

Rating 

Motivation of the rating and aspects of the policy sub-option 
necessary to achieve the impact 

The  effects  the  policy  option  would  deliver  from  a  social 
perspective can be perceived both in a positive and negative sense.  

Some main positive aspects must be stressed: 

• 

• 

• 

• 

through facilitated access to the labour  market, applicants for 
international  protection  would, 
in  principle,  become 
financially  independent.  This  could  serve  as  a  basis  for 
stronger social integration.  

due to the measures with regard to access to material reception 
conditions  applicants  for  international  protection  would,  in 
principle,  receive  the  necessary  resources  to  benefit  from 
adequate  living  conditions.  Consequently  this  could  prevent 
exclusion trends from the hosting MS; 

through  the  guarantees  determined  by  the  new  identification 
procedure,  applicants  for  international  protection  with special 
needs would, in principle, receive the necessary protection and 
resources to address their specific situation and to allow them 
to  benefit  from  living  conditions  aligned  to  their  needs.  This 
could prevent exclusion trends from the hosting MS; 

ensuring  that  vulnerable  persons  have  access  to  the  same 
health  care  as  nationals  would  allow  them  to  benefit  from  an 
important  motor  of  social  integration,  creating  a  vital  link 
between them and the hosting society. 

On the other hand, two main negative aspects could be stressed: 

•  EU  citizens  might  negatively  perceive  applicants 

for 
international  protection  as  additional  competition  on  the 
labour market; 

•  EU citizens might negatively perceive access to 'social aid' for 
applicants for international protection. Citizens might consider 
unjustified  the  fact  that  applicants  have  access  to  these 
benefits.  

The  present  intervention  would  deliver  an  overall  positive  impact 
on people in need of international protection:  

• 

• 

• 

• 

it would guarantee that persons in need of international 
protection would have fairer opportunities to find 
employment and could become self-sufficient;  
it would guarantee that detention would be applied in 
accordance with international law. Moreover, the prohibition 
of detention of unaccompanied minors and other vulnerable 
groups would significantly strengthen their fundamental 
rights. 
additionally it would guarantee a number of very significant 
safeguards for detained asylum seekers such as access to 
legal assistance and the right of appeal against detention; 
the reporting mechanism with regard to access to material 
reception conditions would guarantee that asylum seekers can 
benefit from adequate level of support, in particular when 
financial assistance is provided; 

Social impacts at EU and MS level 

+ 

Social impacts at EU and MS level 

+ 

Impact  on  people 
international protection 

in  need  of 

+ 

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Preferred policy option 

Assessment Criteria  

Rating 

Motivation of the rating and aspects of the policy sub-option 
necessary to achieve the impact 

+ 

Impact on third countries 

+ 

Fundamental rights 

+ 

• 

• 

• 

• 

it would assist in ensuring that asylum seekers are not left 
destitute when reception conditions are reduced or withdrawn 
It would also ensure a right to appeal against decision to 
reduce/withdraw reception conditions, which will ensure that 
such decisions are justified and based on the circumstances of 
each individual.  
it would ensure the proper and timely identification of special 
needs and access to adequate health care; 
it would provide the necessary attention with regard to 
housing to gender and age-specific concerns, and to cases of 
persons with other special needs, and would provide the 
highest possible standards since, in cases of access to health 
care, persons with special needs would enjoy equal treatment 
with nationals; 
it would guarantee a more comprehensive application of 
reception conditions through the adoption and application of 
best practices. Also, the participation of UNHCR and NGOs 
in the meetings within EURASYL could represent a 
significant input in defining best practices aiming primarily 
at the establishment of higher level of protection. 

It  is  extremely  difficult  to  assess  the  impact  on  third  countries  of 
the  proposed  provisions  (i.e.  in  terms  of  whether  ameliorating 
reception  conditions  would  increase  asylum  flows).  Such  an 
impact could only be assessed in combination with other elements 
of  the  asylum  procedure  such  as  recognition  rates  of  asylum 
applications,  as  well  as  several  'push  factors'  such  as  the  level  of 
political stability in neighboring third-countries.  

Respect  for  and  protection  of  fundamental  rights  would  be 
increased through this option: 

• 

• 

• 

• 

• 

• 

to  monitor 

easier access to the labour market would allow applicants to 
be  more  self-sufficient  and  would  facilitate  their  integration 
into the hosting MS.  
the  proposed  measures  would  ensure  that  detention  is  in 
general  unnecessary  and  should  only  be  applied 
in 
exceptional cases. In this respect the right to freedom would 
be reinforced.  
ensuring  adequate  level  of  material  reception  conditions  by 
establishing  concrete  benchmarks  and  by  introducing  a 
reporting  mechanism  with  a  view 
the 
implementation  of  these  benchmarks  would  strengthen  the 
protection of the right to dignity for asylum applicants; 
the  right  to  appeal  against  a  decision  to  withdraw  or  reduce 
reception conditions would strongly contribute to the respect 
of fundamental rights of asylum seekers by ensuring that they 
are never left destitute;  
the 
for  special  needs  would 
contribute greatly in ensuring full respect of the fundamental 
rights  of  vulnerable  applicants.  Moreover,  equal  treatment 
with  nationals  in  relation  to  access  to  healthcare,  would 
guarantee higher standards of treatment in this respect; 
the  participation  of  UNHCR  and  NGOs  in  the  meetings 
within  EURASYL  should  represent  a  significant  input  in 
defining  and  individuating  best  practices  directed  primarily 
towards  the  application  of  interventions  with  the  particular 
aim of granting full respect of fundamental rights. 

identification  procedure 

6.3. 

Assessment and considerations of proportionality and EU added value 

The preferred option is proportional to the objectives set out in this impact assessment 
and represents a balanced solution between the benefits obtained (i.e. having a more 

EN 

49 

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efficient  and  more  protective  system)  and  the  efforts  Member  States  must  make  to 
implement them.  

The preferred option ensures that the Directive will be more consistently applied by 
Member  States,  while  also  providing  for  greater  consistency  with  EU  asylum 
legislation,  in  particular  the  Qualification  Directive  and  the  Asylum  Procedures 
Directive.  

7. 

MONITORING AND EVALUATION 

In  order  to  monitor  the  Member  States'  adherence  to  the  revised  Directive,  regular 
evaluation and reporting by the Commission will take place.  

Subsequent monitoring and evaluation of the preferred policy option are important to 
assess  its  efficiency  and  effectiveness  in  addressing  the  underlying  problems  and 
meeting the policy objectives. The indicators listed below could be used to assess the 
progress  and  effectiveness  of  the  preferred  option  in  achieving  the  main  policy 
objectives. These indicators will be used by the Commission in the following cases: 

1.  To  evaluate  and  assess  the  information  received  from  Member  States  for  the 
purpose  of  preparing  the  report  on  the  application  of  the  Directive,  as  envisaged  in 
Article  28  of  the  proposal.  The  report  would  be  compiled  once  the  deadline  for 
implementation of the Directive at national level expires.  

2.  To  evaluate  and  assess  the  information  submitted  by  Member  States  on  a  yearly 
basis  concerning  access  to  the  labour  market,  material  reception  conditions  and 
treatment of vulnerable groups, in accordance with Article 26 of the Directive.  

Regular  expert  meetings  will  continue  to  take  place  with  a  view  to  discussing 
implementation problems and exchanging best practices between Member States. 

Indicators 

•  Transposition by all Member States of the amendments proposed to the Directive 

on Reception Conditions 

•  Number of asylum seekers in a Member State 

•  Number of asylum seekers employed in a Member State 

•  Number  of  asylum  seekers  identified  as  having  special  needs  and  number  of 

referrals to appropriate treatment 

•  Number of Dublin requests and transfers  

•  EURODAC hits  

•  Amounts of benefits granted to asylum seekers 

•  Number of persons benefiting from ERF-funded activities  

EN 

50 

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•  Level of financial resources allocated for the ERF  

•  Level of financial resources allocated for practical cooperation activities  

•  Number of training activities carried out

EN 

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ANNEX I– GLOSSARY  

Asylum 

Asylum is a form of protection given by a State on its territory based on the principle 
of ‘non-refoulement’ and internationally or nationally recognised refugee rights. It is 
granted  to  persons  who  are  unable  to  seek  protection  in  their  country  of  citizenship 
and/or residence in particular for fear of being persecuted for reasons of race, religion, 
nationality, membership of a particular social group or political opinion. 

Common European Asylum System 

Rules and principles at European Union level leading to a common asylum procedure 
and a uniform status, valid throughout the Union, for those granted asylum. The major 
aims  and  principles  were  agreed  to  in  October  1999  at  the  European  Council  in 
Tampere  (Finland)  by  the  Heads  of  State  or  Government.  The  second  phase  in  the 
establishment of the Common European Asylum System started with the adoption of 
The Hague programme in November 2004. 

Dublin system 

The  Dublin  Convention  and  its  successor,  the  Dublin  Regulation,  set  the  rules 
concerning  which  Member  State  is  responsible  for  handling  an  asylum  application. 
The objective of the system is to avoid multiple asylum applications, also known as 
‘asylum  shopping’.  The  Dublin  system  comprises  the  Dublin  and  Eurodac 
Regulations and their implementing regulations. 

Geneva Convention 

The convention relating to the status of refugees done at Geneva on 28 July 1951. The 
convention  is  supplemented  by  the  New  York  Protocol  of  31  January  1967.  All 
Member  States  are  party  to  the  convention  and  the  protocol,  which  are  the  basis  on 
which the Common European Asylum System is built. 

Non-refoulement 

The  key  principle  of  international  refugee  law,  which  requires  that  no  State  shall 
return  a  refugee  in  any  manner  to  a  country  where  his/her  life  or  freedom  may  be 
endangered. The principle also encompasses non-rejection at the frontier. Its provision 
is contained in Article 33 of the 1951 Convention Relating to the Status of Refugees 
and constitutes the legal basis for States’ obligation to provide international protection 
to those in need of it. Article 33(1) reads as follows: ‘No Contracting State shall expel 
or return (refouler) a refugee in any manner whatsoever to the frontiers of territories 
where  his  life  or  freedom  would  be  threatened  on  account  of  his  race,  religion, 
nationality, membership of a particular social group or political opinion’. Article 3 of 
the European Convention for the Protection of Human 

Rights and Fundamental Freedoms, in the light of the case-law of the European Court 
of  Human  Rights  and  Article  3  of  the  UN  Convention  Against  Torture  and  Other 

EN 

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Cruel,  Inhumane  and  Degrading  Treatment  or  Punishment,  are  also  considered  as 
bases for ‘non refoulement’ obligations.  

Reception Conditions 

Reception conditions are defined in the Reception Conditions Directive as the full set 
of  measures  that  Member  States  grant  to  asylum  seekers  in  accordance  with  this 
Directive. 

Refugee 

A  person  who  fulfils  the  requirements  of  Article  1(A)  of  the  Geneva  Convention, 
Article 1(A) 

defines  a  refugee  as  any  person  who,  owing  to  a  well-founded  fear  of  being 
persecuted for reasons of race, religion, nationality, membership of a particular social 
group or  political opinion, is  outside the country  of his nationality  and is unable  or, 
owing to such fear, is unwilling to avail himself of the protection of that country; or 
who  not  having  a  nationality  and  being  outside  the  country  of  his  former  habitual 
residence as a result of such events, is unable or, owing to such fear, is unwilling to 
return to it. 

Refugee status 

This is defined  in the EU legislative  instruments  as the status  granted by  a  Member 
State to a person who is a refugee and admitted as such to the territory of that Member 
State.  In  terms  of  the  Geneva  Convention,  refugee  status  is  defined  as  the  status 
possessed  by  a  person  who  fulfils  the  requirements  of  the  refugee  definition  as  laid 
down in the convention. 

Subsidiary protection 

The  EU  Qualification  Directive  created  the  subsidiary  protection  status  in  order  to 
give protection to certain categories of persecuted people who are not covered by the 
1951  Geneva  Convention  on  refugees.  It  grants  a  lower  level  of  rights  than  the 
Geneva Convention status. 

Tampere European Council 

In October 1999 the Tampere European Council adopted a comprehensive approach 
to  put  into  practice  the  new  political  framework  established  by  the  Treaty  of 
Amsterdam  in  the  area  of  Justice  and  Home  Affairs.  The  Council  set  ambitious 
objectives  and  deadlines  for  action  in  all  relevant  areas,  including  asylum  and 
immigration, police and justice cooperation and fight against crime. 

Temporary protection 

People sometimes  need temporary protection after being temporarily displaced from 
their  homes,  e.g.  Kosovo  in  1999.  The  EU  adopted  a  directive  on  temporary 
protection in July 2001, the provisions of which have not been enacted so far. 

EN 

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The Hague programme 

The Tampere programme, adopted by the Tampere European Council in 1999, set the 
agenda  for  work  in  the  area  of  Justice  and  Home  Affairs  for  the  period  1999-2004. 
Likewise,  the  European  Council  adopted  in  2004  The  Hague  programme,  which 
covers the period 2005-2010, and provides, inter alia, for the  continuation  of  efforts 
aimed at establishing common European asylum and immigration policies. 

Unaccompanied minors 

Unaccompanied  minors  are  persons  below  the  age  of  eighteen  who  arrive  in  the 
territory  of  the  Member  States  unaccompanied  by  an  adult  responsible  for  them 
whether by law or by custom, and for as long as they are not effectively taken into the 
care  of  such  a  person;  this  includes  minors  who  are  left  unaccompanied  after  they 
have entered the territory of Member States. 

Vulnerable persons 

In  accordance  with  the  Reception  Conditions  Directive,  vulnerable  persons  refers  to 
minors,  unaccompanied  minors,  disabled  persons,  elderly  people,  pregnant  women, 
single parents with minor children, and persons who have  been subjected to torture, 
rape  of  other  serious  forms  of  psychological,  physical  or  sexual  violence.  Under 
national law and practices Member States could further categorise vulnerable persons. 

EN 

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ANNEX II – Statistical Data for Persons with Special Needs 

Unaccompanied Minors 

2003 

2004 

2005 

2006 

2007 

Austria (<18) 

706 

358 

466 

Belgium (<18) 

589 

599 

584 

449 

519 

Finland 

110 

140 

220 

112 

98 

Germany (<16) 

977 

636 

331 

186 

180 

Hungary 

190 

59 

41 

61 

73 

Latvia 

Lithuania 

24 

11 

3 

9 

3 

5 

Norway 

916 

424 

322 

349 

403 

Slovenia 

34 

105 

83 

20 

24 

Sweden 

561 

1264 

c) Available figures for elderly asylum seekers: 

- AT: (>50 yrs old): 492 in 2005, 291 in 2006, 325 in 2007.  

- DE: decreasing number (> 50 yrs old): from 1,173 in 2003 to 553 in 2007. 

- RO: 7 elderly asylum seekers in period 2003 – 2007. 

- SE: (> 65 yrs old): 316 in 2003, 519 in 2007. 

d) Available figures for other groups: 

- BE: FGM cases: 78 in 2006, 96 in 2007; victims of trafficking: less than 10 cases 
where victims identified themselves as such (time period not clear).  

- LV: 1 pregnant woman in 2006, 1 single parent family in 2008. 

-  RO:  4  disabled  asylum  seekers,  5  pregnant  women,  10  single  parent  families,  2 
victims of torture, 7 victims of SGBV (in period 2003 – 2007). 

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ANNEX III - The Likely Administrative Costs of the Preferred Policy Option 

Administrative costs associated with the preferred policy option 

The administrative costs66 have been assessed with regard to information obligations 
associated with: 

•  the  legal  duty  of  staff  to  address  the  special  needs  of  applicants  for  international 

protection;  

•  the obligation to inform detainees on the rules of the detention facilities; 

•  the obligation to submit a yearly report to the Commission with regard to Articles 

6, 11, 13, 14, 17 and 22 of the Directive. 

•  the  establishments  of  instruments  of  practical  cooperation  (EU  guidelines  and 
diffusion  of  best  practices,  EU  training  of  staff  in  contact  with  applicants  with 
special needs).67 

These  are  the  main  elements  of  the  preferred  policy  option  which  entail  additional 
administrative costs and which have been associated with the types of obligation and 
required actions listed in the table below.68 

Classification  of  type  of  obligation  and  actions  required  in  relation  to  each  individuated  policy 
measure 

Policy measure 

Type of obligation 

Type of action required 

Familiarising 
with 
information obligation 

the 

Identification 
concerning 
special needs  

procedure 
applicants  with 

Submission of recurring reports 

Filling forms and tables 

Submitting the information 

Filing the information 

Obligation  to  inform  detainees 
on  the  rules  of  the  detention 
facilities 

Other – Creation of information 

with 
Familiarising 
information obligation 

the 

Training 

members 

and 

66 

67 
68 

According  to  EC  IA  guidelines,  "Administrative  costs  are  defined  as  the  costs  incurred  by 
enterprises, the voluntary sector, public authorities and citizens in meeting legal obligations to 
provide  information  on  their  action  or  production,  either  to  public  authorities  or  to  private 
parties.  Information  is  to  be  construed  in  a  broad  sense,  i.e.  including  costs  of  labeling, 
reporting, monitoring and assessment needed to provide the information and registration". 
Administrative costs have been assessed according to the EU Standard Cost Model Manual.  
The  provided  classification  of  type  of  obligation  and  actions  required  in  relation  to  each 
individuated  policy  measure  entailing  additional  administrative  costs  have  been  established 
according to the EU Standard Cost Model Manual.  

EN 

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about 
employees 
information obligations 

the 

Retrieving  relevant  information 
from existing data 

Adjusting existing data 

Copying 

Submitting the information 

Familiarising 
with 
information obligation 

members 
Training 
employees 
about 
information obligations 

the 

and 
the 

Retrieving  relevant  information 
from existing data 

Adjusting existing data 

Copying 

Submitting the information 

Producing new data 

Submitting the information 

Obligation  to  submit  a  yearly 
report  to  the  Commission  with 
regard  to  Articles  6,  11,  13,  17 
and 22 of the Directive. 

Other – Creation of information 

Definition of EU guidelines and 
diffusion of best practices 

Other – Creation of information 

EU  training  of  staff  in  contact 
with  applicants  for  international 
protection 
special 
needs 

regarding 

Submission of recurring reports 

members 
Training 
about 
employees 
information obligations 

and 
the 

Firstly, the legal duty of staff to refer special needs of applicants for international 
protection  requires  MS  reception  personnel  to  recognise  and  register  special  needs 
through appropriate forms which would then have to be submitted and filed in order 
for MS administrations to be aware of these people’s needs and consequently provide 
them  with  adequate  treatment.  MS  administrations  will  therefore  have  to  familiarise 
themselves with this new obligation imposed by this policy option. So, this particular 
measure would be supported by EU training of staff in contact with applicants for 
international protection in order for them to be able to recognise special needs. 

Secondly,  the  obligation  to  inform  detainees  on  the  rules  of  the  detention  facilities 
would  entail  the  preparation  of  a  leaflet  that  would  include  all  related  information. 

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This measure would only affect those Member States that at present provide either no 
information to detainees or provide the required information orally. 

Thirdly,  the  reporting  mechanism  would  require  MS  to  submit  yearly  data  to  the 
Commission  concerning  the  implementation  of  Articles  6,  11,  13,  17  and  22 
respectively.  Specifically,  MS  would  have  to  collect  data  on  how  many  asylum 
seekers  are  covered  under  the  Reception  Conditions  Directive,  how  many  are 
benefiting from social benefits, the types of benefits applicable to asylum seekers etc, 
and detail information with regard to the documentation provided to asylum seekers 
indicating their status in the MS.  

Finally, the drafting of EU guidelines, adoption of an EU handbook and diffusion 
of  best  practices  would  take  some  time.  Once  this  procedure  is  completed,  the 
guidelines must be submitted to the MS. 

1.  Main  assumptions  used  to  assess  the  costs  associated  with  the  preferred  policy 
option 

On the basis of these elements, the administrative costs have been assessed according 
to two scenarios: 

•  Scenario “t0”: first year of implementation of the preferred PO 

•  Scenario “t0+2”: third year of implementation of the preferred PO.  

These scenarios have been developed in order to assess the main administrative costs 
related to the “start-up” expenses of the new measures and those related to the costs 
needed to maintain these measures. 

Main assumptions of Scenario “t0”69 

With reference to Table III, the following main assumptions have been made in order 
to provide an estimate of the administrative costs the preferred policy option entails: 

•  Concerning  implementation  costs  for  familiarisation  with  the  obligations  and 
training of the personnel of MS Asylum Services70, in the absence of available and 
comparable information about the number of staff in charge of reception conditions 
in MS, the following estimations have been made: 

(1) 

an average of 6 senior officials (director, deputy directors and heads of units) 
per MS would be deputed to familiarise themselves with the obligations for the 

69 

70 

It must be noted that the numbering of the assumption is related to the numbering of the voices 
of cost indicated in Table IV. 
The  need  for  familiarisation  with  obligations  relates  to  the  following  measures:  (i)  the  legal 
duty  of  staff  to  refer  special  needs  of  applicants,  (ii)  the  ensuring  of  information  on 
organisations or groups defending applicants’ rights, (iii) the reporting requirement concerning 
the implementation of Articles 6, 13, 17 and 22 of the Directive and (iv) the requirement to 
inform detainees of the rules of the detention facilities. 

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(2) 

(3) 

submission  of  reports  (assumption:  two  working  days  required,  for  an 
estimated total of 96 working hours per MS);71 

an  average  of  395  officials  per  MS  would  be  involved  in  training  about  the 
obligations  for  submitting  and  generating  information72  (assumption:  two 
working days of training course, for an estimated total of 6,320 hours per MS);  

an  average  of  395  officials  per  MS  would  be  involved  in  training  about  the 
identification of special needs of vulnerable people (assumption: two working 
days of training course, for an estimated total of 158,000 hours at EU level). 
The number of officials has been estimated on the basis of the average number 
of applications for international protection for each MS in the past five years 
(2003-2007).  As  shown  in  the  table  below,  MS  have  been  categorised 
according  to  ranges  of  average  applications  and,  for  each  category,  a 
corresponding range of reception personnel has been estimated: 

Categorisation of Member States by 
average number of applications 

Number  of  persons  working  in  the 
domain of reception conditions  

MS with below 150 applications 

Fewer than 20 persons  

MS  with  between  150  and  2,500 
applications 

Between 20 and 50 persons  

MS  with  between  2,500  and  5,000 
applications 

Between 50 and 150 persons  

MS  with  between  5,000  and  1,0000 
applications 

Between 150 and 500 persons 

MS  with  between  10,000  and  30,000 
applications 

Between 700 and 1,000 persons 

MS with more than 30,000 applications 

More than 1,000 persons 

•  Concerning  implementation  costs  for  the  remaining  actions.73  The  following 
assumptions were made in terms of working hours (WH) for the following actions: 

71 

72 

73 

The  submission  of  reports  is  related  to:  (i)  Legal  duty  of  referring  special  needs  (ii)  the 
reporting  requirement  concerning  the  implementation  of  Articles  6,  13,  17  and  22  of  the 
Directive and (iii) the requirement to inform detainees of the rules of the detention facilities. 
The  information  is  related  to:  (i)  Legal  duty  of  referring  special  needs,  (ii)  the  reporting 
requirement concerning the implementation of Articles 6, 13, 17 and 22 of the Directive and 
(iii) the requirement to inform detainees of the rules of the detention facilities 
Filling  forms  and  tables;  Submitting  the  information;  Filing  the  information;  Retrieving 
relevant  information  from  existing  data;  Adjusting  existing  data;  Copying;  Producing  new 
data. 

EN 

59 

   EN

 
                                                 
(4) 

(5) 

(6) 

(7) 

(8) 

(9) 

0,5 WH for filling the forms to be submitted for each vulnerable/person with 
special  needs  identified.  This  would  occur  for  each  vulnerable  applicant  and 
the annual number of these people entering on average each MS is estimated 
to be 5,742;74 

0,1  WH  in  each  MS  for  submitting  the  information  concerning  vulnerable 
persons (considering that most information will be submitted electronically); 

0,5  WH  in  each  MS  to  file  the  information  for  the  registration  of  vulnerable 
persons; 

40  WH  for  a  MS  to  retrieve  all  the  necessary  information  that  must  be 
submitted to the Commission in relation to Articles 6, 11, 13, 17 and 22 of the 
Directive  and  to  detained  asylum  seekers  with  regard  to  the  rules  of  the 
detention facility; 

0,1 WH in each MS for submitting the information in relation to Articles 6, 11, 
13, 17 and 22 of the Directive, and to detained asylum seekers with regard to 
the rules of the detention facility; 

0,5 WH in each MS to file the information submitted in relation to Articles 6, 
11, 13, 17 and 22 of the Directive, and to detained asylum seekers with regard 
to the rules of the detention facility; 

•  Tariffs have been estimated on the basis of the EU average hourly labour cost in 
Public Administration (NACE L), extracted from Eurostat data. Eurostat provides 
hourly and monthly labour costs and gross earnings per economic sector. However, 
for government (NACE section L, Public administration and defence; compulsory 
social security) we only have information on the New Member States. Additional 
data  were  required  to  extend  our  information  on  labour costs  to  the  entire  EU27. 
Eurostat provides a number of possible indicators, namely average personnel costs 
in services in the EU27 in 2003 (NACE sections G, H, I, and K),75 median gross 
annual earnings in industry and services in the EU25 in 2002 (the outcome of the 
Structure of Earnings Survey 2002),76 and average hourly labour costs in industry 
and  services  of  full-time  employees  in  enterprises  with  10  or  more  employees  in 
2002.77 The relative differences between Member States in the level of labour costs 
in  the  NMS  according  to  the  various  sources  compares  fairly  well.  OECD  data 

74 

75 

76 

77 

This assumption is based on an estimate drawn from a study carried out by ICAR (Information 
Centre  about  Asylum  and  Refugees)  concerning  vulnerable  groups  in  the  asylum  process  in 
the UK which, receiving the highest average number of applications in the past 5 years (2003-
2007), constitutes a representative sample on which to base an estimate of the proportion of 
vulnerable applicants among the total applications in the EU (Vulnerable groups in the asylum 
determination process, Thematic Briefing prepared for the Independent Asylum Commission 
Information Centre about Asylum and Refugees (ICAR), 2007). 
Eurostat, “Main features of the services sector in the EU”, Statistics in Focus – Industry, trade 
and services 19/2007. 
Eurostat,  “Earnings  disparities  across  European  countries  and  regions.  A  glance  at  regional 
results of the Structure of Earnings Survey 2002”, Statistics in Focus – Population and social 
conditions 7/2006. 
Eurostat, Europe in Figures 2005, p. 169. 

EN 

60 

   EN

                                                 
were used to forecast the level of annual labour costs per Member State in 2008.78 
Information  on  the  annual  hours  worked  per  employee  in  the  total  economy  per 
Member  State  in  2005  was  taken  from  the  total  economy  database  of  the 
Groningen Growth and Development Centre.79 The end result is an average hourly 
labour costs of employees in NACE section L (public administration and defence; 
compulsory social security) of €24.3 0 in the EU27 in 2008, and €23.30 excluding 
Denmark. 

Main assumption of Scenario “t0+2”80 

With reference to Table III, the following main assumptions have been made in order 
to provide an estimate of the administrative costs the preferred policy option entails: 

•  Concerning  implementation  costs  for  familiarisation  with  the  obligations  and 
training  of  the  personnel  of  MS  Asylum  Services,81  no  additional  cost  should  be 
sustained two years after starting the implementation of the preferred option; 

•  Concerning  implementation  costs  for  the  remaining  actions82,  starting  from  the 
main  assumption  of  no  need  for  drafting  the  EU guidelines  and best  practices on 
the application of the policy option, the following assumptions were made in terms 
of WH for the stated actions: 

(1) 

0,5 WH for filling the forms to be submitted for each vulnerable/person with 
special  needs  identified.  This  would  occur  for  each  vulnerable  applicant  and 
the annual number of these people entering on average each MS is estimated 
to be 5,742;83 

(2) 

0,1  WH  in  each  MS  for  submitting  the  information  concerning  vulnerable 
persons (considering that most information will be submitted electronically); 

78 

79 

80 

81 

82 

83 

OECD  Economic  Outlook  81  database.  The  average  increase  in  labour  costs  in  Poland, 
Hungary, the Slovak Republic and the Czech Republic was applied to the New Member States 
that are not a member of the OECD. 
Groningen  Growth  and  Development  Centre  and  the  Conference  Board,  Total  Economy 
Database, January 2007, http://www.ggdc.net. The average annual number of hours worked in 
the New Member States was 1,855 hours per worker, while the Eurostat data on labour costs 
per  hour  and  per  month  result  in  an  annual  number  of  hours  worked  in  NACE  section  L  of 
1,800 hours, suggesting that the data match. 
It must be noted that the numbering of the assumption is related to the numbering of the voices 
of cost indicated in Table V. 
The necessity of familiarisation with obligations relates to the following measures: (i) the legal 
duty  of  staff  to  refer  special  needs  of  applicants,  (ii)  the  ensuring  of  information  on 
organisations or groups defending applicants’ rights. 
Filling  forms  and  tables;  Submitting  the  information;  Filing  the  information;  Retrieving 
relevant  information  from  existing  data;  Adjusting  existing  data;  Copying;  Producing  new 
data; Designing information material. 
This  is  based  on  the  assumption  that  no  relevant  change  would  be  observed  in  the  overall 
number  of  applicants  for  international  protection  in  the  EU  between  t0  and  t0+2  and, 
consequently, also in the number of vulnerable people. The use of the same number for t0 and 
t0+2  depends  also  on  the  fact  that  the  total  number  of  applicants  used  for  calculating  the 
number of vulnerable people is the average of the last five years observed (2003-2007), which 
gives a standardised measure of the intensity of the flows.  

EN 

61 

   EN

                                                 
(3) 

(4) 

(5) 

(6) 

0,5 WH in each MS to file the information for the registration of vulnerable 
persons; 

36  WH  for  a  MS  to  retrieve  all  the  necessary  information  that  has  to  be 
submitted to the Commission in relation to Articles 6, 11, 13, 17 and 22 of the 
Directive  and  to  detained  asylum  seekers  with  regard  to  the  rules  of  the 
detention facility; 

0,1 WH in each MS for submitting the information in relation to Articles 6, 
11, 13, 17 and 22 of the Directive, and to detained asylum seekers with regard 
to the rules of the detention facility; 

0,5 WH in each MS to file the information submitted in relation to Articles 6, 
11, 13, 17 and 22 of the Directive, and to detained asylum seekers with regard 
to the rules of the detention facility; 

•  Tariffs: no significant changes in the tariffs (see Scenario “0”) due to the limited 

period elapsed from “Scenario 0” and the expected inflation rates at EU level. 

EN 

62 

   EN

EU Cost Model: Policy option obligations in scenario 't0' 

Proposal on the future development of measures on reception conditions for 
asylum seekers, based on Council Directive 2003/9/EC  

Tariff
(€ per 
hour) 

Time  
(hour) 

Price 
(per action 
or equip) 

Freq  
(per 
year) 

Nbr  
of  
entities 

Total nbr 
of  
actions 

Total  
cost 

Regulatory 
origin 
(%) 

No. 

Ass. 
Art. 

Orig. 
Art. 

Type of 
obligation 

Description of 
required action(s) 

Target group 

i 

e 

i 

e 

Int 

EU 

Nat  Reg 

1 

2 

3 

4 

5 

6 

7 

8 

9 

EN 

Submission 
of 
(recurring) 
reports 

Submission 
of 
(recurring) 
reports 

Submission 
of 
(recurring) 
reports 

Submission 
of 
(recurring) 
reports 

Submission 
of 
(recurring) 
reports 

Submission 
of 
(recurring) 
reports 

Familiarising with 
the information 
obligation 

Training members 
and employees 
about the 
information 
obligations 
Training members 
and employees 
about the 
information 
obligations 

Filling forms and 
tables 

Submitting the 
information 
(sending it to the 
designated 
recipient) 

Filing the 
information 

retrieving relevant 
information from 
existing data 
Submitting the 
information 
(sending it to the 
designated 
recipient) 

MS Asylum Services 

MS Asylum Services 

EU DG JLS 
Services 

MS Asylum Services 

MS Asylum Services 

MS Asylum Services 

MS Asylum Services 

MS Asylum Services 

23 

23 

23 

23 

23 

filing the information  MS Asylum Services 

23 

23 

96,00 

2.236,8 

1,00 

25 

25 

55.920 

100% 

23 

6.320,00 

147.256,0 

1,00 

25 

25 

3.681.400 

100% 

23 

158.000,00 

3.681.400,0 

1,00 

1 

1 

3.681.400 

100% 

0,50 

11,7 

5.742,00 

25 

143.550 

1.672.358 

100% 

0,10 

2,3 

5.742,00 

25 

143.550 

334.472 

100% 

0,50 

11,7 

5.742,00 

25 

143.550 

1.672.358 

100% 

40,00 

932,0 

1 

25 

25 

23.300 

2,3 

11,7 

1 

1 

25 

25 

25 

25 

58 

291 

Total administrative costs (€) 

11. 121. 556 

0,1 

0,5 

63 

EN 

 
  
  
 
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
EU Cost Model: Policy option obligations in scenario 't0 + 2

Proposal on the future development of measures on reception conditions for 
asylum seekers, based on Council Directive 2003/9/EC  

Tariff 
(€ per 
hour) 

Time  
(hour) 

Price
(per 
action 
or 
equip) 

Freq  
(per 
year) 

Nbr  
of  
entities 

Total nbr 
of  
actions 

Total  
cost 

Regulatory 
origin 
(%) 

No. 

Ass. 
Art. 

Orig. 
Art. 

Type of obligation 

Description of 
required action(s) 

Target group 

i 

e 

i 

e 

Int 

EU 

Nat  Reg 

1 

2 

3 

4 

5 

6 

Submission of 
(recurring) reports 

Filling forms and 
tables 

Submitting the 
information (sending it 
to the designated 
recipient) 

Submission of 
(recurring) reports 

Submission of 
(recurring) reports 

Submission of 
(recurring) reports 

Retrieving relevant 
information from 
existing data 

Submitting the 
information (sending it 
to the designated 
recipient) 

Submission of 
(recurring) reports 

Submission of 
(recurring) reports 

MS Asylum 
Services 

MS Asylum 
Services 

MS Asylum 
Services 

23 

0,50 

11,7 

5.742,00 

25 

143.550 

1.672.358 

100% 

23 

0,10 

2,3 

5.742,00 

25 

143.550 

334.472 

100% 

Filing the information 

23 

0,50 

11,7 

5.742,00 

25 

143.550 

1.672.358 

100% 

MS Asylum 
Services 

MS Asylum 
Services 

MS Asylum 
Services 

23 

36,00 

838,8 

1,00 

25 

25 

20.970 

100% 

23 

0,10 

2,3 

1,00 

25 

25 

58 

100% 

Filing the information 

23 

0,50 

11,7 

1,00 

25 

25 

291 

100% 

Total administrative costs (€) 

3.700.506 

EN 

64 

EN 

 
  
  
 
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
Multiple applications – EURODAC 

 ANNEX IV 

EURODA
C 
registered 
asylum 
application
s 

238,325 

232,205 

187,223 

165,958 

823,711 

All multiple applications 

All multiple 
applications/ 
EURODAC 
registered asylum 
applications 

6.89% 

13.48% 

16.90% 

17.23% 

13.11% 

Total 
n. 

16,42
9 
31,30
7 
31,63
6 
28,59
3 
107,9
65 

2003 

2004 

2005 

2006 

Total 

3rd and subsequent multiple 
applications 

Total 
n. 

3rd and subsequent 
multiple applications/ 
EURODAC registered 
asylum applications 

1,860 

0.78% 

7,873 

3.39% 

9,307 

4.97% 

9,236 

5.57% 

28,276  3.43% 

EN 

65 

   EN