Opinion of the Economic and Social Committee on the "Proposal for a Council Directive laying down minimum standards on the reception of applicants for asylum in Member States"

Official Journal C 048 , 21/02/2002 P. 0063 - 0067

Opinion of the Economic and Social Committee on the "Proposal for a Council Directive laying down minimum standards on the reception of applicants for asylum in Member States"

(2002/C 48/14)

On 6 June 2001 the Council decided to consult the Economic and Social Committee, under Article 63 of the Treaty establishing the European Community, on the above-mentioned proposal.

The Section for Employment, Social Affairs and Citizenship, which was responsible for preparing the Committee's work on the subject, adopted its opinion on 7 November 2001. The rapporteur was Mr Mengozzi and the co-rapporteur was Mr Pariza Castaños.

At its 386th plenary session (meeting of 28 November 2001), the Economic and Social Committee adopted the following opinion by 115 votes to one, with three abstentions.

1. Introduction

1.1. This proposal is one of a series of draft directives - currently being examined by the Committee - designed to set up a common European asylum system. It follows on from paragraph 14 of the Tampere European Council conclusions, implementing Article 63 of the EC Treaty.

1.2. Its objectives are to:

- establish minimum standards for the reception of asylum seekers;

- set out the various reception conditions for the various stages or types of procedure or categories of person;

- improve the efficiency of national systems;

- limit secondary movements;

- secure comparable living conditions for asylum seekers in all Member States.

1.3. As part of its preparations, the Commission consulted the UNHCR and a number of the more relevant non-governmental organisations.

2. Gist of the proposal

2.1. The proposed directive has eight chapters.

2.2. The first chapter defines the scope of the directive and the meaning of the terms used. For instance:

- the directive does not apply to EU citizens;

- unmarried couples are treated in the same way as married couples only in those Member States that recognise such equal treatment;

- no distinction is made however in the case of dependent children;

- the directive does not apply to applications for asylum made to the diplomatic representations of Member States;

- Member States may choose whether or not to apply the directive to procedures governing forms of protection that do not fall within the terms of the Geneva Convention.

2.3. The second chapter covers general provisions relating to asylum seekers' entitlement to:

- receive all the information they need;

- receive a document that certifies their status;

- move freely within all or part of the national territory;

- maintain their family unit;

- benefit from health and psychological care;

- receive education for minors;

- have access to the labour market and vocational training.

2.4. The third and fourth chapters detail material reception conditions, which must allow for an adequate standard of living and protection of asylum seekers' fundamental rights. They therefore refer to housing and health and psychological care.

2.5. The fifth chapter lists the cases in which reception conditions may be reduced or withdrawn following negative behaviour, for instance if the applicant:

- disappears;

- withdraws the application;

- conceals financial resources;

- is regarded as a threat to national security;

- behaves violently.

2.6. The sixth chapter details provisions for persons with special needs, such as minors, disabled or elderly people, pregnant women, victims of abuse or sexual discrimination, victims of torture or violence, and single parents.

2.7. The seventh and eighth chapters describe actions to improve the efficiency of the reception system and final provisions. These refer to cooperation and coordination between Member States and with the Commission, the role of local communities, and the system for guidance, monitoring and control at national and Community level. Member States are to transpose the directive by 31 December 2002.

3. General comments

3.1. The Committee welcomes the draft directive's objectives and endorses its substance. It does however have a few comments to make regarding its provisions, with the premise that minimum standards must be based on best practice and that a just and dignified reception system is the best foundation for a successful integration process and, where appropriate, a fair system for returning asylum seekers to their countries of origin.

3.2. The Committee notes that the subjects addressed - pursuant to the mandate conferred in paragraphs 13, 14 and 15 of the conclusions of the Tampere European Council of 15 and 16 October 1999 - must be considered in the context of fundamental human rights. These issues slot into an international legal framework that, in addition to the Geneva Convention and the 1967 New York Protocol, includes the European Convention on Human Rights, the International Covenant on Economic, Social and Cultural Rights, the International Covenant on Civil and Political Rights, the Convention on the Elimination of all forms of Discrimination against Women and the Convention on the Rights of the Child.

3.3. Although it refers to numerous international legal instruments that guarantee rights of various kinds, the draft directive avoids using the word "rights", replacing it with various circumlocutions such as "freedom of ...", "possibility of ...", "access to ..." or "may ...". The only exception is the repeated mention of the "right" to bring proceedings before a court. This paints a picture of an asylum seeker as someone basically deprived of rights. The Committee is not convinced that this image will dovetail easily with the above-mentioned international legal context.

4. Specific comments

4.1. The Committee considers it self-evident that the measures provided for under this directive will also be applied to procedures for examining applications for protection other than that emanating from the Geneva Convention (Article 3).

4.1.1. The Commission proposes in Article 2 that unmarried partners in a stable relationship should be recognised only if the legislation of the Member State where the application is being examined treats unmarried couples in the same way as married couples. This seems the only possible course of action, as otherwise the result would be either discrimination or an inappropriate harmonisation of national laws on this matter.

4.2. The basic right to free movement (Article 7) is an extremely delicate issue as it is difficult to balance it with the need to process asylum applications rapidly. The Committee appreciates the efforts made to limit the movement restrictions to those necessary for the purposes of the directive and to balance them with derogations and guarantees of recourse to a judicial body. It cannot be denied, however, that this type of restriction could reduce the effectiveness of other provisions, such as access to the labour market. The Committee therefore thinks that, except in the case of justified and time-limited derogations dictated by administrative procedures, free movement should be guaranteed throughout the national territory.

4.3. The possibility of access to the labour market (Article 13) is clearly of material and moral benefit to both asylum seeker and host country. The six-month period, after which such access cannot be denied, seems fair, although the negative wording suggests an unwillingness to concede something which the Committee views as a right. For this reason, the Committee is concerned by the generic nature of the wording of Article 14 and the broad power left to the Member States to establish procedures. It should at least be specified that this access covers both self-employed and employed work and that, in the latter case, rights and salaries must be equivalent to those of Member State nationals. Complicating or restricting access to work will only encourage the spread of undeclared work.

4.3.1. The proposal also sets a six-month threshold for access to vocational training (Article 14). Such training is essential in order to speed up integration. The Committee feels that although this threshold is reasonable when dealing with access to the labour market, it is not appropriate in the case of vocational training. Training should be offered as widely as possible for third-country nationals in the care of a Member State. This is essential on two counts. Firstly, any training which these people receive will benefit the development of their country of origin if they return there: one most not forget Community immigration policy's commitment to joint development and mobility to equip the countries of origin with trained people. Secondly, if these people remain in a Member State, the training they have received will make it easier for them subsequently to find employment there.

4.3.2. The same criteria - which the Committee considers as reasons for granting vocational training to asylum seekers - can also be extended to other fields of training, such as language courses or study of the society and institutions of the host country. The proposed directive should thus include a paragraph on education stressing the Member State's obligation to provide educational assistance from the start of the reception procedure.

4.3.3. On this note, it should be mentioned that the Community equal opportunities initiative (EQUAL) makes explicit reference to asylum seekers in the context of active and preventive employment policies, and anti-discrimination and equal opportunities policies.

4.4. References to the definition of material reception conditions (Articles 15-19) can be found in the International Covenant on Economic, Social and Cultural Rights, the European Union's Charter of Fundamental Rights and the Universal Declaration of Human Rights. Reception conditions must provide an adequate standard of living so as to protect the health and well-being of the asylum seeker and dependent family members, provide separate accommodation for men and women while allowing families to stay together, provide schooling for minors, assess the specific requirements of elderly people, children and people with disabilities, and allow people to practise their religions in suitable places and carry out cultural activities with the same freedom as nationals(1).

4.4.1. The period spent in reception centres should be as brief as possible - especially since reception centres often resemble detention centres - before people are moved to alternative, normal accommodation. However, it is very important for residents to play some part in the running of the centre during their time there and they must have the possibility to refer to an independent authority for protection against violation of their individual rights.

4.4.2. The sum and type of allowances (monetary, in kind or vouchers) is fundamental, as this determines the asylum seekers' standard of living and quality of life, which should not differ too much from one Member State to another. Nevertheless, the Committee is aware that such differences exist, and are not always justified by differences in cost of living or environmental conditions, and that the guidance, monitoring and control system provided for under Article 30 does not seem to be enough to ensure that asylum seekers benefit from similar material reception conditions in all Member States. A European monitoring system should be set up, involving the UNHCR, NGOs with expertise in the area and, for work-related aspects, the social partners. The Commission should be informed of survey findings every year. The Committee considers that it is not enough to state that the total amount of the allowances must be sufficient to prevent applicants and accompanying family members from falling into poverty. It should also be specified that the allowance is to be determined with reference to the basic old-age pension or, where such a pension does not exist, the payments provided by an institute which performs the same function. At all events, the various forms of allowance granted to asylum seekers should take account of the full range of benefits available to Member State nationals. The use of vouchers rather than monetary allowances has been severely criticised in some countries both because of the difficulties it causes asylum applicants and because it distinguishes them from the rest of the population unnecessarily. The Committee thinks that the proposed directive should not include provision for the use of vouchers.

4.5. The Committee does not accept that the type of health and psychological care (Articles 20-21) provided should differ depending on the type of procedure adopted; basic health care should be accessible to all.

4.6. The conditions set out in Article 22 for the reduction or reversal of reception conditions seem illogical and do not respond to the directive's objectives. For instance, if asylum seekers:

- withdraw their applications, they no longer fall within the scope of the directive;

- are considered to be a threat to national security or there are reasons to believe that they have committed war crimes or crimes against humanity, they fall within the responsibility of the judicial authority or have the reception conditions withdrawn if it is not possible for them to come under the jurisdiction of the host country;

- disappear for over 30 days or do not comply with the obligation to remain within a specific area, the reasons for that behaviour are to be assessed and, applying the proportionality principle, a decision taken as to whether the reception procedure should continue or be stopped; but in either case it seems inappropriate to reduce reception conditions that the directive itself defines as minimum.

4.6.1. The only case in which reception conditions should be reduced is when asylum seekers have concealed their own financial resources, for the simple reason that they are able to provide partially or fully for their own needs. Basic health care should however be guaranteed in the interests of the host country, and not only in emergencies.

4.7. The Committee is satisfied with the section on provisions for persons with special needs (Articles 23-26), and in particular the attention given to the problems of children, single women, victims of torture and violence, and persons with disabilities.

4.8. The actions to improve the efficiency of the reception system (Articles 27-31), which are the responsibility of the Member States, are especially important for the purposes of achieving the directive's objectives, for instance:

- the appointment of a national contact point for exchange of information between Member States;

- regular communication to the Commission of information relating to asylum seekers;

- coordination with the NGOs concerned, to enable them to do their work as well as possible;

- the promotion, in conjunction with local authorities, of initiatives to prevent racism, xenophobia and sexual discrimination; religious discrimination should be added to this list;

- monitoring of the standard of reception conditions;

- training for all staff who come into contact with asylum seekers, covering the procedure from beginning to end.

The Committee feels that the main NGOs and the social partners should be involved with the last three aspects in particular.

5. Conclusions

5.1. The Committee stresses that despite laudable intentions to speed up reception procedures, the authorities in some countries can take months (and, in many cases, well over a year) to reach a decision. Ideally, the current overhaul of immigration and asylum policy - which is being conducted on the basis of the Tampere Council guidelines and with a view to respect for fundamental human rights and a Union that is open to the rest of the world - should reduce the number of asylum applications. However, this process will take time and will have to overcome some cultural resistance.

5.2. It is not desirable that people fleeing from repression and persecution - in the absence of evidence to the contrary - should find their rights suspended for a lengthy period from the moment they set foot in the host country.

5.3. The Committee therefore thinks that all the possibilities and concessions which the draft directive offers asylum applicants should be explicitly turned into rights, specifying any occasions and reasons whereby exceptions are deemed necessary on administrative grounds. This would also give practical effect to the only right that is recognised, namely the right to access to justice.

5.4. Finally, the Committee points out that a good reception system does not depend solely on material conditions and efficient organisation, but also on a positive attitude on the part of the general public, who must be properly informed and prepared to learn why people seek asylum, thereby fostering a climate of understanding.

Brussels, 28 November 2001.

The President

of the Economic and Social Committee

Göke Frerichs

(1) Article 4 of the Geneva Convention states that: "Religion: The Contracting States shall accord to refugees within their territories treatment at least as favourable as that accorded to their nationals with respect to freedom to practise their religion and freedom as regards the religious education of their children."