Statewatch News Online: Common European Asylum System: LIBE Committee adopts Reception Directive and the Dublin II Regulation
28 March 2012
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Common European Asylum System
LIBE
Committee adopts Reception Directive and the Dublin III Regulation
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]
[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
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