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Common European Asylum System: LIBE Committee adopts Reception Directive and the Dublin III Regulation

26 September 2012

26.9.12

As the deadline set for the adoption of a Common European Asylum Office is approaching (end of 2012), negotiations have reached the final stage of the "trilogue" between the Council and the European Parliament. Two of the measures were endorsed by the LIBE Committee on 19 September 2012: the Dublin III Regulation[1] and the Reception Directive [2]. Although some important changes were adopted which will likely improve the EU asylum system, significant elements remain at stake especially regarding access to social and economic rights, to free legal assistance, and the protection against disproportionate detention.

Reception Directive

The reception Directive sets the reception standards applicable to all asylum-seekers across the EU pending the examination of their claim (access to education, health care, benefits, employment). Adopted in 2003, a revised version was proposed in 2008, which the UK opted out of. The 2003 version was criticised for giving too much discretion to Member States as to how asylum-seekers should be treated.[3] Practices varied to a great extent with respect to, for example, access to employment (asylum-seekers can access employment immediately in Greece, but only after four months in Sweden, six months in Spain and nine months in Luxembourg) or even the possibility to detain asylum-seekers.

Moreover, the directive did not reflect the entirety of the European asylum legislation: applicants for subsidiary protection were not included in the scope of the 2003 directive, even though the notion of subsidiary protection was enshrined in EU law with the adoption of the 2004 qualification Directive.

However, although the revised text contained improvements compared to the 2003 version (e.g. applicability of the directive in territorial waters and transit zones; extension to the directive to all applicants for international protection), the adopted proposal put forward highly controversial measures making it "a missed opportunity to ensure that asylum-seekers in the EU are fully treated with dignity and fairness in all respects". [4]

Some of these include access to the employment market only after nine months (the Parliament and the Commission had proposed a six-month waiting period) but only if no first instance decision was not made within that period.

Less favourable treatment of asylum-seekers when being granted social benefits (a proposal by the Council) was also adopted, which, combined with a restricted access to the employment market, may lead to some asylum-seekers living in deprivation.

The revised directive also maintains the possibility to detain asylum-seekers even in prisons - as long as they are not detained for seeking asylum but for other reasons - including minors and unaccompanied children (although the 2008 Commission's proposal explicitly prohibited the detention of unaccompanied minors).[5] No maximum time limit was included in the adopted version of the revised reception Directive, which only refers to a period "as short as possible" (article 9).

Overall, the revised reception directive did not seem to address many of the major issues, and much discretion is left to member states with regard to the rights of asylum-seekers (see reference in endnote [4] for a detailed analysis of the compromised draft).

Great concern was expressed by several organisations as well by experts in the field of immigration and asylum. A group of 166 NGOs called on the EU institutions not to allow for the detention of asylum-seekers save in exceptional cases with full procedural safeguards [6]; and the Migreurop network sent a letter to members of the European Parliament calling for the prohibition of the detention of asylum-seekers, and expressing concerns that "given current practices in some Member States and the trivialisation of the use of detention as an immigration management tool, this provision may turn into an incitement". [7]

The Meijers Committee commented on the Reception directive and especially the possibility to detain unaccompanied minors:

"Article 11 (2) provides that unaccompanied minors 'shall be detained only in particular circumstances', which is such a vague wording that in practice it will not provide any extra safeguards for the detention of unaccompanied minors".[8]

Dublin III Regulation

The LIBE Committee also agreed the revised Dublin III Regulation which establishes the rules on which member state shall be responsible for the examination of an asylum claim. Much criticism has been made against the default rule whereby all asylum-seekers should see their claim examined in (usually) the first EU country they entered. The discretionary clause according to which a Member State can decide to examine a claim although the applicant entered the EU through another member state has so far been applied only in exceptional cases. However, much criticism was has been made against the removal of asylum-seekers to EU countries where the asylum procedures and reception conditions standards were lower.

In 2011, important decisions saw the European Court of Human Rights and the European Court of Justice rule in favour of the suspension of the removal of asylum-seekers to Greece on the basis that the applicants would be subject to undignified treatment, possibly detention, and that their claim would not be examined in a fair manner due to systemic failures in the Greek asylum system. [9]

Importantly, the European Parliament managed to reflect developments in the revised Dublin III Directive which now will "make it impossible to transfer asylum seekers to member states where "there are systemic flaws in the asylum procedure and reception conditions (...) resulting in risk of inhuman or degrading treatment". [endnote 1]

In June 2011, Cyprus, Malta, Italy and Greece had called for the Dublin III Regulation to include "a mechanism to suspend the transfers to Member States facing particular pressure on their national asylum systems". [10]

Yet, the Dublin principle, where asylum applications should be examined in the first country of entry, remained untouched. Suspension mechanisms will only apply when systemic flaws result in risk of human rights violations, not when some countries face "pressure on their national asylum systems". This may lead to situation where documentation of human rights violations, and even judicial decisions, will be needed before the suspension clause is enforced: early warning mechanisms will only help remedy identified systemic issues so that member states are able to face this pressure, with the help of the European Asylum Support Office (EASO).

Some of the comments from the Meijers Committee were taken into account, such as the inclusion of a suspensive appeal against the removal decision. However, access to free legal aid as proposed by the Commission - and upon which the possibility to appeal the removal order is conditioned to a large extent, can, in the adopted version, be refused if the court considers there is "no tangible prospect of success" (article 26(6)). [11]

Moreover, the Dublin III Regulation will still gives the possibility to detain asylum-seekers if there is a "significant risk of absconding" (article 27(2)) whereas the Parliament had proposed that detention should only be possible if there was an "established" risk of absconding. [12]

The discretion of member states thus seems to remain as to what qualifies as a "significant" risk, which led the Meijers Committee to express its concern since the Regulation "does no longer require that the detention of the applicant is necessary". Furthermore, the Meijers Committee emphasised that, as in the case of the Reception Directive, the detention provisions in the Dublin III Regulation seemed "at odds with the recent case-law of the ECtHR concerning the detention of children in facilities for aliens detention".

Both texts still need to be discussed and adopted by the European Parliament in the plenary, possibly in December 2012. [13]

Sources

[1] LIBE Committee of the European Parliament, 'Asylum seekers: no transfers to EU countries unable to cope', 19 September 2012, IPR51500
[2] LIBE Committee of the European Parliament, 'Towards more humane reception conditions for asylum seekers', 19 September 2012, IPR51501
[3] European Commission, Proposal for a Directive laying down minimum standards for the reception of asylum seekers, COM(2008) 815, December 2008 http://www.statewatch.org/news/2008/dec/RCD%20II%20FINAL.pdf
[4] Statewatch Analysis, The EU Directive on Reception Conditions: A weak compromise, by Steve Peers, Professor of Law, July 2012
[5] COREPER (Council of the EU), Amended proposal for a Directive of the European Parliament and of the Council laying down standards for the reception of asylum seekers (recast) [First reading], 12598/12, 16 July 2012
[6] Appeal to EU institutions: ensure respect for asylum-seekers' right to liberty in recast reception conditions Directive and Dublin Regulation, May 2012; Not crossing red lines - A negotiators' checklist on minimum detention safeguards, May 2012
[7] Migreurop, Detention of asylum seekers in reception conditions Directive: danger!, May 2012
[8] Meijers Committee, Detention provisions in the recast proposals for the Reception Conditions Directive and the Dublin Regulation and the right to a remedy with suspensive effect, CM1209, 16 May 2012
[9] Statewatch Analysis, Was Hungary the first EU country of arrival? Legal responsibility before human rights: a short story on Dublin, Marie Martin, September 2012
[10] Cyprus, Greece, Italy, Malta, & Spain Issue Joint Communiqué Regarding Response to North African Migration, 19 April 2012
[11] COREPER (Council of the EU), Proposal for a Regulation establishing the criteria and mechanisms for determining the Member State responsible for examining an application for international protection lodged in one of the Member States by a third-country national or a stateless person (Recast) [First reading], 12746/12, 27 July 2012
[12] Statewatch Analysis, Revising the 'Dublin' rules on responsibility for asylum-seekers: Further developments, Steve Peers, Professor of Law, July 2012
[13] Asile: L'UE veut se doter d'une procedure d'alerte, AFP, 19 September 2012