The Reception Conditions directive, toward a limited legislative progress on access to the labour market of asylum seekers

Context

The current EU rules on claimants for international protection's access to the labour market are set out in Directive 2003/9 (the ‘2003 Reception Conditions Directive’, hereafter RCD), which applies to all Member States except Denmark and Ireland. The UK has opted out of the 2008 proposal (as revised in 2011, and now agreed) to amend these rules, but the 2003 RCD will continue to apply to the UK regardless.

Currently  article 11 of the 2003 EU Reception Conditions directive explicitly recognizes the right to work to asylum seekers, and contingently to claimants for subsidiary protection. 

The current Article 11 of the Reception Conditions directives stipulates that:

1. Member States shall determine a period of time, starting from the date on which an

application for asylum was lodged, during which an applicant shall not have access to

the labour market.

2. If a decision at first instance has not been taken within one year of the presentation of an

application for asylum and this delay cannot be attributed to the applicant, Member States

shall decide the conditions for granting access to the labour market for the applicant.

3. Access to the labour market shall not be withdrawn during appeals procedures, where an

appeal against a negative decision in a regular procedure has suspensive effect, until such

time as a negative decision on the appeal is notified.

4. For reasons of labour market policies, Member States may give priority to EU citizens and

nationals of States parties to the Agreement on the European Economic Area and also to

legally resident third-country nationals.

Under article 11 2003 RCD Member States retain the power to introduce or maintain dispositions and domestic standards that are more favourable to claimants for international protection under article 11RCD than the twelve months restriction periods laid down by article 11 RCD.

As the Commission pointed out in its 2008 report on the application of the 2003 RCD, "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" in the EU Member States.

For a more detailed analysis on this topic, see: The Right to Work of Claimants for International Protection, a Legal Toolbox, pp.26-32, by Julien BLANC. 

Towards swifter and better access of claimants for international protection to the labour market? The Amended Proposition to recast the Reception Conditions Directive, a (limited) legislative progress

The European Member States have been reluctant for years (at least since 2000) to adopt the proposition of the European Commission allowing asylum seekers to access the labour market no later than six months after filling an application for international protection (see our post on ECRE Comments on article 15 of the Amended Proposal to recast the RCD) . 

The 19/09/2012, after 9 months of negotiations and under the pression of the end of the year 2012 deadline set by the Stockholm Programme, the European Parliament Civil Liberties Committee (LIBE Committee) has reached a provisional agreement with the Council : Asylum seekers should have access to a EU Member State's labour market no later than nine months after filing an application for international protection according to the latest provisional draft law.

The European Parliament (EP) and Council split the difference between a 6-month waiting period (supported by the EP and European Commission) and a 12-month period (supported by the Council, and as set out in the 2003 Directive), so the new Directive will provide for a 9-month maximum waiting period. The "fifth trilogue" resulted in a compromise after the determination of the Council to refuse any further concessions to the European Parliament. The EP did accept the Council’s demand to keep most of the existing conditions restricting that access (for instance, asylum-seekers will only have access if there is no first-instance decision on their claim within the 9-month period).

Next steps

The draft directive was backed in the EP LIBE Committee by 45 votes to 9, with 4 abstentions. Member states will now have to endorse the agreed text, which would then come back to the European Parliament. The final text is expected to be voted in plenary before the end of the year 2012. Once adopted, EU countries will have two years to transpose the new rules into domestic law. The reception conditions directive is one of the five acts forming the backbone of the Common European Asylum System (CEAS).

If adopted according to the text of the fifth trilogue, future article 15 of the Reception Conditions Directive would be the following: 

1. Member States shall ensure that applicants have access to the labour market no later than 9 months following the date when the application for international protection was lodged if a first instance decision by the competent authority has not been taken and this delay cannot be attributed to the applicant. 

2. Member States shall decide the conditions for granting access to the labour market for the  applicant, in accordance with their national law, while ensuring asylum seekers have effective access to the labour market.


For reasons of labour market policies, Member States may give priority to EU citizens and nationals of States parties to the Agreement on the European Economic Area and also to legally resident third country nationals.




3. Access to the labour market 

shall not be withdrawn during 

appeals procedures, where an 

appeal against a negative 

decision in a regular 

procedure has suspensive 

effect, until such time as a 

negative decision on the 

appeal is notified. 

Useful documents and sources: 

• Towards more humane reception conditions for asylum seekers, European Parliament, Press Release, 19/09/2012.
  
  
• 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] - Analysis of draft compromise text resulting from the fifth trilogue with a view to a possible agreement, Council of the European Union, Interinstitutional File: 2008/0244 (COD), 06/07/2012. 

• Bridge over troubled waters: le bilan JAI de la présidence danoise de l'Union, 31/07/12, Henry Labayle, CDRE. 

• Statewatch Analysis: The EU Directive on Reception Conditions: A weak compromise, 07/2012, Steve Peers, University of Essex.

• Reception Conditions Directive 2003/9 

• COM (2008) 815 - European Commission initial proposal to recast the 2003 Reception Conditions Directive

• COM (2011) 320 - Amended proposal following Member States reluctances on the 2008 Commission proposal to recast the 2003 RCD