UNHCR released comments on the Reception Conditions Directive (recast)

Asylum seekers waiting for a decision on their application in the European Union must be provided with certain necessities that guarantee them a dignified standard of living according to the EU Reception Conditions Directive that set minimum standards that Member States should respect.

In the past (and present), diverging practices among Member States however led to an inadequate level of material reception conditions for asylum seekers. The Reception Conditions Directive establishes for this reason- and in order to create a level playing field within the EU- common standards of conditions of living of asylum applicants. The previous version of the Directive is still valid until 21 July 2015 when a new one (recast) becomes applicable. It ensures (in legal theory at least) that applicants should have access to housing, food, health care and employment, as well as medical and psychological care.

Article 15 of the Reception Conditions Directive (recast) grants the right to work to asylum seekers but allows for the restriction of this right by EU Member States (who remain free to adopt more favourable standards nevertheless as the Directive only sets minimum standards). EU Member States must transpose the disposals contained in the Reception Conditions Directive (recast) within their legal order by July 2015.

Article 15 of the Reception Conditions Directive (recast) states that: 

1. Member States shall ensure that applicants have access to the labour market no later than 9 months from the date when the application for international protection was lodged if a first instance decision by the competent authority has not been taken and the 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 that applicants have effective access to the labour market. For reasons of labour market policies, Member States may give priority to Union citizens and nationals of States parties to the Agreement on the European Economic Area, and 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 Access to the labour market shall not be withdrawn during appeals procedures, where an appeal against a negative decision in a regular procedure has suspensive effect, until such time as a negative decision on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.

The UNHCR has recently released its' Annotated Comments to Directive 2013/33/EU of the European Parliament and Council of 26 June 2013 laying down standards for the reception of applicants for international protection (recast) in April 2015. 

We reproduce hereafter UNHCR comments on articles 15 and 16 of the Reception Conditions Directive (recast). 

Access to the labour market

Article 15 States taking part in UNHCR’s Executive Committee, as well as in the Global Consultations on International Protection, have recognized that reception arrangements can be beneficial both to the State and to the asylum-seeker where they provide an opportunity for the asylum-seeker to attain a degree of self-reliance.

Moreover, in cases where an applicant is ultimately granted protection, earlier access to the labour market can facilitate the integration process and his/her earlier positive contribution to society. Earlier access to the labour market promotes the social inclusion and self -reliance of asylum-seekers, and avoids the loss of existing skills and dependency. For the host State, it brings increased tax revenues and savings in accommodation and other support and reduces illegal working. While welcoming the reduction from 12 to 9 months, UNHCR recommends that access to the labour market be granted no later than 6 months from the date of lodging the application or sooner when the applicant is granted international protection within the 6 month period. 

This timeline would coincide with Article 31 (3) of the recast Asylum Procedures Directive, which foresees a six month maximum timeline (save for exceptional cases/circumstances) for processing applications for international protection. Article 15 (2) states that Member States ‘’shall decide the conditions for granting access to the labour market (…) while ensuring effective access’’. The Commission’s evaluation of the implementation of the 2003 Reception Conditions Directive found that additional limitations imposed on asylumseekers who have in principle been granted access to the labour market might considerably hinder such access in practice. Examples of such limitations include the requirement to apply for work permits, restriction of access to certain sectors of the economy and on the amount of authorized working time.

UNHCR is concerned that the provision in paragraph 2 which foresees that ‘’for reasons of labour market policies, Member States give priority to EU citizens and nationals of States parties to the Agreement on the EEA and legally resident third-country nationals’’, may result in de facto discriminatory practices hampering effective access in practice, especially where such reasons are not specified in national law or policy. For States Parties to the 1951 Convention, the relevant obligations are contained in Articles 17, 18 and 19 of the 1951 Convention, read together with Article 3 (non-discrimination). To comply with 1951 Convention obligations, no distinction can be made between applicants for international protection who are lawfully staying and other lawfully staying individuals.  

Recommendations

Transposition 

While welcoming the reduction from 12 to 9 months, UNHCR recommends that access to the labour market be granted no later than 6 months from the date of lodging of the application or as soon as applicants are granted international protection. This timeline would agree with article 31 (3) of the recast Asylum Procedures Directive, which provides a six month maximum timeline (safe for exceptional cases/circumstances) for processing applications for international protection.

UNHCR recommends that Member States in their national law and / or policy set out clear criteria for establishing when ‘’for reasons of labour market policies’’, they may give priority to legally resident third-country nationals’’ in order to avoid discriminatory practices contrary to Article 17 (1) of the 1951 Convention relating to the status of refugees. Implementation 

Conditions, practices and support during the asylum procedure should promote dignity and aim at empowering the individual applicant. This should include preparing the individual for future integration for those in need of protection, or for return. As such, ways in which asylum-seekers could be brought into the employment market or benefit from language or vocational training should be considered by Member States.

Vocational Training 

Article 16 UNHCR cautions that the second indent of this Article allows substantial scope for exceptions and adjustment by Member States. Access to vocational training relating to an employment contract may be a necessary step in maximizing the prospects of future employment. UNHCR therefore recommends that applicants for international protection be granted access to vocational training as soon as reasonably possible and in any event within the 6 month period pursuant to Article 31 (3) of the recast Asylum Procedures Directive or earlier if they are granted international protection within this period.

Recommendations

Transposition

UNHCR recommends that Member States make provision in their national legislation allowing applicants access to vocational training relating to an employment contract even before they have access to the labour market as a necessary step in maximizing the prospects of future employment in the host society in case of recognition, or back home in case of rejection. 

As regards the timelines, UNHCR recommends that asylum-seekers be granted access to vocational training as soon as reasonably possible and at least within six months following the lodging of their application in line with Article 31 (3) of the recast Asylum Procedures Directive or from the moment when they are granted international protection within this 6 months period.

To know more about the Reception Conditions Directive, our views on its disposals and about previous disposals that were planned in the draft before adoption of this version see : Julien BLANC, The Right to Work of Claimants for International Protection, a legal Toolbox.