ECRE Comments on recast of the Reception Conditions directive

We reproduce hereafter ECRE (the European Council on Refugees and Exiles) Comments  on the Amended Commission Proposal to recast the Reception Conditions Directive (COM(2011) 320 final) that were released in September 2011. ECRE Comments were released before June 2012 and September 2012, when the Amended Commission Proposal to recast the Reception Conditions Directive was harshly discussed between the Council, the European Commission and the European Parliament (see our next post on that topic for more informations on the agreement reached after the "trialogue process"). We nevertheless reproduce ECRE Comments as it highlights interesting points:

ECRE Comments: 


 Employment (amended recast Article 15)

Giving asylum seekers the right to work within a reasonable time after having lodged an asylum application is in the interests of both asylum seekers and the country receiving their application. For asylum seekers the right to work is essential to avoid social exclusion and prolonged dependency on state-provided reception conditions. It is also essential in allowing them to become self-sufficient. Lack of access to the labour market during the initial period of their arrival in the host country seriously hinders their integration prospects in the long term. 

At the same time, the work experience they have gained during the asylum procedure may positively affect their reintegration in the country of origin upon return, thereby making it more sustainable. It is obviously also in the State‟s interest that asylum seekers engage in gainful employment as it reduces the cost of reception conditions for asylum and generates contributions to the fiscal system through labour taxation.

As asylum procedures last longer, the risk of social exclusion increases and access to the labour market becomes more important. A number of EU Member States already allow asylum seekers to work within a  period of 6 months or less after they have applied for asylum.

Consequently, ECRE welcomes the fact that the principle according to which “applicants must have access to the labour market no later than 6 months following the date when the application for international protection was lodged” is maintained in amended recast Article 15(1).

However, such a  principle risks being seriously undermined in practice as a result of amended recast Article 15(1) subparagraph 2. This provision reintroduces the possibility for Member States to extend the period during which asylum seekers can be denied access to the labour market to one year in two situations referred to in Article 31(3) (b) and (c) of the amended Commission proposal recasting the Asylum Procedures Directive. The latter provision proposes to allow Member States to conclude a procedure under the Asylum Procedures Directive within maximum one year instead of maximum six months in a number of cases. These cases include the situation where the arrival of a large number of asylum seekers applying simultaneously for international protection makes conclusion of the procedure within six months impossible in practice and where “the delay can clearly be attributed to the failure of the applicant to comply with his/her obligations under Article 13”. 

ECRE believes that establishing a link between the reasons for extending the time limit for concluding the asylum procedure and access to the labour market is counterproductive. For reasons explained above, it is in the interest of both States and asylum seekers that access to the labour market is made possible at the earliest possible stage. Extending the period during which asylum seekers cannot have access to the labour market increases the duration that they are dependent on state-provided reception conditions and is therefore more expensive, while work qualifications may become outdated etc.. Moreover, the conditions laid down in Article 31(3)(b) and (c) of the Commission proposal recasting the Asylum Procedures Directive are open to broad interpretation. This may result in some Member States denying asylum seekers access to the labour market for one year, and thus a status quo vis-à-vis the current directive, in a large number of cases. The amended Commission proposal recasting the Asylum Procedures Directive does not provide any further guidance as to what constitutes “a large number of third country nationals or stateless persons applying simultaneously” or  “failure of the applicant to comply with his/her obligations under Article 13”. As this is entirely left to the national authorities this may not only increase divergences between EU Member States as regards the duration of the procedure, but also as regards the access to the labour market. Moreover, postponing access to the labour market because more time is needed for processing the asylum application of the individual concerned would be for the wrong reasons and illogical. 

ECRE recommends deleting amended recast Article 15(1) subparagraph 2 as it risks rendering the guarantee of access to the labour market no later than six months after the application for international protection was lodged, meaningless in practice. 

Research has shown that conditions imposed in national legislation regarding asylum seekers' access to the labour market allowed under the Reception Conditions Directive often  obstruct such access in practice. 

                                                

According to the Commission's impact assessment shortening time restrictions regarding  employment would have insignificant 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. See SEC(2008) 2944, Impact Assessment Reception Conditions Directive recast Proposal, p.41.

While, according to amended recast Article 15(2), Member States can still decide to impose such conditions, they must now do so “while ensuring asylum seekers have effective access to the labour market”. ECRE considers this to be an improvement as it provides a stronger guarantee against the inclusion of conditions in national legislation that in practice render access to the labour market for asylum seekers impossible. Contrary to the 2008 Commission recast RCD proposal it now imposes a positive obligation on Member States to ensure effective access to the labour market for asylum 

seekers.

If adopted, any condition for granting access to the labour market laid down in national legislation making such access impossible in practice would no longer be compatible  with the recast Reception Conditions Directive. This would constitute an important step in the right direction and would remove an important obstacle to asylum seekers's access to the labour market in a number of EU Member States today. ECRE therefore fully supports amended recast Article 15(2). 

ECRE recommends deleting amended recast Article 15(1) subparagraph 2 allowing Member States to postpone asylum seekers' access to the labour market up to one year because additional time is needed to process the asylum application for reasons  that are outside the control of the asylum seeker or leave a wide margin of discretion to Member States. 

ECRE supports the new wording in amended recast Article 15(2) imposing a positive  obligation on Member States to decide the conditions for granting access to the labour  market in accordance with their national law “while ensuring asylum seekers have effective access to the labour market”. 

Footnotes: 

Greece allows immediate access to employment, Portugal after 20 days, Austria and Finland after 3 months, Sweden after 4 months and Italy after 6 months. See Commission,  Impact Assessment  Reception Conditions Directive recast Proposal, p. 16. 

The right to work is laid down in international human rights instruments such as Article 23 of the Universal Declaration of Human Rights, Article 6 of the International Covenant on Economic, Cultural and Social Rights and in Article 15(1) of the EU Charter of Fundamental Rights.