When the Presumption of Compliance Results in Outsourcing of Responsibility: Protecting the Fundamental Rights of Europe’s Asylum Seekers

Amy Dunne, LLB (Trinity College Dublin), Master of Law, KU Leuven (cum laude), PhD candidate Leiden Universiteit and Knowledge Management, Freshfields Bruckhaus Deringer LLP, Brussels 

This submission discusses the limits of the presumption of compliance as encapsulated by the sovereignty clause, Article 3(2), of Regulation (EC) No 604/2013 (Dublin III Regulation) through analysing the evolutions set out in the ECtHR case Tarakhel v Switzerland. It is argued herein that the presumption of compliance has diminished the collective responsibility of Member States for Europe’s asylum seekers – with northern States relying on the presumption to outsource their collective responsibility to southern States, without due regard for fundamental rights concerns, in a manner contrary to the spirit of the Dublin Regulation. Continue reading “When the Presumption of Compliance Results in Outsourcing of Responsibility: Protecting the Fundamental Rights of Europe’s Asylum Seekers”


The New Proposal on Reception Conditions for Asylum Seekers: Genuine Change or Putting Lipstick on a Pig?

Amanda Spalding

LLM student at King’s College London


This September the European Parliament voted to reinforce asylum seekers’ rights in the Member States.[1] This is a welcome development given that the EU states’ record on asylum is far from squeaky clean with asylum seekers often being shunted from one Member State to the other and horror tales of unsanitary and unsafe living conditions in detention centres.[2]  The draft proposals approved by Parliament clarify the responsibilities of states as well as providing a set of standards for the reception and treatment of asylum seekers. These standards include detention grounds, detention conditions, detention of vulnerable persons, asylum seekers’ access to the labour market, asylum seekers with special needs and access to benefits. The draft, which has been provisionally agreed with the Council, modifies the Directive 2003/9 and, if passed, will become EU law by December 2012. In this article I will outline the proposed changes to the Directive and will offer a critique to ascertain whether these changes will adequately change the current asylum system or whether it is simply ‘putting lipstick on a pig.’[3]


The Current System

Up until 1999 asylum policy between Member States still operated on an intergovernmental level in so far as it was covered by the Third Pillar, thus outside the competence of the European Community(now the European Union). However with the Schengen cooperation[4] being incorporated into the Treaties in 1997 it was thought necessary to change this and bring the relevant policy areas under the EU’s remit. From 2003 to 2005 the EU attempted to implement the first phase of a ‘Common European Asylum System.’ The relevant instruments adopted under this heading are:

  1. Regulation 343/2003 which covers the determination of responsibility for an application of asylum between Member States.
  2. Directive 2003/9 which lays down the minimum standards and conditions of reception of asylum seekers.
  3. Directive 2004/83 which sets the minimum standards for the qualification of persons as refugees or persons otherwise in need of international protection as well as what protections are granted.
  4. Directive 2005/85 which provides the minimum standards on Member States procedures for withdrawing or granting refugee status.

This system has proven to be disastrous. Notice the abundance of directives used – giving Member States discretion in their implementation of the system. This has resulted in very important issues such as standards of reception and the criteria for qualification of a refugee being subject to different interpretation in what is ostensibly a ‘common’ system. The whole area of EU asylum law generally is deeply in need of reform but given the parameters of this article the rest of the discussion will be confined to Directive 2003/9.

As stated above the Directive 2003/9 relates to reception conditions for asylum seekers. ‘Reception conditions’ are the rules for the treatment of asylum seekers while their claim is being processed.  They generally concern areas relating to social rights.

There are six main areas that the current proposal seeks to amend. These are detention grounds, detention conditions, detention of vulnerable persons, asylum seekers access to the labour market, asylum seekers with special needs and access to benefits. I will outline the changes in each area below:


Detention Grounds

At present the 2003/9 Directive does not provide any grounds for detention. Thus the grounds for detention vary from state to state as they have discretion in this area. The new proposal sets out an exhaustive list for grounds of detention of an asylum seeker which are:

–       to check his or her identity;

–       to verify the elements of the application for international protection;

–       to decide on their right to enter the Member State’s territory;

–       to protect national security and public order;

–       to prepare them for return to their  home country if the Member State “can substantiate on the basis of objective criteria … that there are reasonable grounds to believe that he makes the application for international protection merely in order to delay or frustrate the enforcement of the return decision”;[5]

–       in the context of a transfer to another Member State, under the “Dublin II” regulation on  responsibility for asylum seekers.


Detention Conditions

The current law does not provide any guidelines as to where an asylum seeker may be detained by a Member State. There is merely a requirement to provide them with a dignified standard of living. Thus a common ‘solution’ is to detain asylum seekers in prison. The European Parliament was in favour of prohibiting this in the new proposal but could not get the Council to agree. The new proposal merely reiterates the point that generally detention should take place in a specialised detention facility. However, if accommodation in such a facility cannot be provided and the Member State is obliged to place the asylum seeker in a prison, then they should be kept separately from ordinary prisoners and have access to open-air spaces. Asylum seekers who are detained must also be provided with information explaining their rights and obligations in a language that they understand “or are reasonably supposed to understand”[6].


Detention of Vulnerable Persons

Article 18 of Directive 2003/9 only provides that Member States should take into account the specific situation of vulnerable persons. The new proposal lays down some clearer rules. Minors are only to be detained as a last resort and if they are, it should be for the shortest period possible. All efforts should be made to release them and place them in more suitable centres. Unaccompanied minors should only be detained “in exceptional circumstances” and they should not be kept in prisons. They should be provided with accommodation in centres with staff and facilities which are adapted to their needs. They should also be kept separately from adults. Though this is an improvement on the very vague provision laid out in Art 18, the European Parliament wanted to insert clauses providing for a ban on the detention of vulnerable persons if it would be harmful to their health and to completely ban the detention of children. However they were resisted by the Council and the above compromise was reached.


Access to the Labour Market

At present, an asylum seeker will have access to the labour market one year after they have filed an application. However in practice there may be other obstacles. The Commission pointed out in its 2008 report on the application of the current directive that “additional limitations imposed on those asylum seekers who have already been granted access to the labour market, such as the necessity of a work permit, might considerably hinder such access in practice”. Also if a negative decision regarding the application is made within the year and the asylum seeker wishes to challenge that decision then the one year period restarts. Under the new proposal asylum seekers will have access to a Member State’s labour market no later than nine months after filing an application.  The Commission and the European Parliament wanted to change this to six months but again could not convince the Council.  The other restrictions to access also continue to apply.


Special Needs

Like minors, the current directive only requires the Member State to take account of the person with special needs (i.e. vulnerable persons) specific situation. It also provides that victims of torture, rape or other acts of violence should be given medical treatment if necessary. Under the new proposal the Member States will be obliged to assess whether an asylum seeker needs special attention, such as medical or psychological help. This assessment should take place “within a reasonable period of time” after an application is filed and the Member States should ensure that these special needs are properly addressed.

Access to Benefits

Currently the Directive merely provides that the Member State must provide emergency healthcare and treatment of essential illnesses to asylum seekers. All other benefits may be withdrawn at the Member State’s discretion.  The new proposal provides that benefits may only be withdrawn in exceptional and duly justified cases. This is again a compromise as the European Parliament wanted to ban withdrawal of benefits whereas the Council was happy for the current system to continue. Another change is to the practice of reducing benefits to asylum seekers who apply ‘late’. Now a Member State must be able to demonstrate that the asylum-seeker had not applied as soon as ‘reasonably practicable’ for asylum, ‘for no justifiable reason’ in order to reduce benefits. Again this is a compromise as the European Parliament wanted to abolish this practice, whereas the Council wanted to keep it. Finally Member States are now obliged to provide core benefits which includes emergency healthcare but also includes providing a ‘dignified standard of living.’ This is somewhat of a victory for the European Parliament as the Council only wanted to include healthcare but the vagueness of ‘dignified standard of living’ may prove to result in little change.


Is it enough?

Although undoubtedly there will be a lot of back slapping around the European Parliament over these changes, very little has in fact been achieved. The phrase ‘putting lipstick on a pig’ certainly seems apt here. The pig that is the EU’s broken asylum system has been very insignificantly altered. The number of asylum seekers who are detained may decrease slightly but given the broadness of some of the terms such as ‘to verify the elements of the application’; it is unlikely to significantly decrease. The ability of Member States to hold asylum applicants in prisons and for an imprecise period remains unchanged. Minors, unaccompanied minors and other vulnerable persons are still able to be detained by the state. The changes to access to the labour market are also relatively insignificant. As can be seen from above, this new proposal is most definitely a compromise. The limitations on withdrawal or reduction of benefits are a relative success but again encompass the features of a compromise. Although the Council may not have gotten its way with all measures, it has significantly diluted the Commission and European Parliaments proposals. Sadly this proposal will be viewed by those advocating fairer and more dignified treatment for asylum seekers as a missed opportunity. However these new proposals do meet for the most part with the UN Refugee Agency’s guidelines on detention of asylum seekers.[7] It provides grounds for detention, that detention in general and especially in prisons should be an exception to the rule and that the detention of minors and particularly unaccompanied minors should be an exceptional circumstance. The only way the proposal is lacking is that is does not specify the factors to be taken into account when deciding whether or not to detain a vulnerable person. Thus on the face of it, the new proposals at least means that the EU meets acceptable international standards on detention. Whether or not this is the case in practice will have to be seen but I am doubtful that the practice of detaining asylum seekers in prisons will see any change in near the future. Nevertheless any improvement on the current system is a welcome development and will hopefully mark the beginning of a trend in raising standards.



[4]  Which resulted in the abolition of passport controls between Member States

[5] July 2012, agreed text of Directive – Council document 12090/12: page 2 para 2

[6] July 2012, agreed text of Directive – Council document 12090/12: page 56