Kees Groenendijk (Professor Emeritus, Radboud University Nijmegen) and Steve Peers
Recently, several countries within and outside the EU have made headlines for seizing assets from asylum-seekers upon entry. This raises the question of whether this practice aligns with EU law. Let’s examine national practices, the development of relevant EU regulations, and finally, draw our conclusions.
Denmark
In November 2015, the Danish government put forward 34 measures aimed at deterring asylum seekers. One proposal was the confiscation of cash, jewelry, and other valuables to offset reception costs. This sparked controversy, particularly regarding a suggestion to seize wedding rings. By January, the Social Democratic Party agreed to support the center-right government’s proposal only if confiscation was limited to assets exceeding 1,340 euros. The new law was scheduled for a vote on January 26th.
Comparable practices and regulations exist in other EU member states.
Switzerland, Minimal Impact on Asylum Seekers
Dutch news sources indicate that Swiss law mandates asylum seekers entering the country with more than 1,000 Swiss francs to declare and surrender the excess to authorities. This rule exclusively targets cash, excluding valuables like jewelry. In 2015, out of 45,000 asylum seekers in Switzerland, a mere 112 surrendered funds, totaling approximately €150,000. This suggests that most asylum seekers do not arrive in Western Europe with substantial wealth. Additionally, Swiss law requires those granted protection and earning income to contribute 10% of that income for a decade towards reception costs.
Germany, Longstanding Practice?
Germany’s asylum seeker reception legislation, the Asylbewerberleistungsgesetz, has allowed for the mandatory contribution of assets and income towards reception costs for several decades. Asylum seekers are obligated to declare their assets and income, with regulations for public assistance applicants being applicable. Exemptions include 200 euros and possessions necessary for professional work (§ 7(5) of the law). German national television news reported on January 21, 2016, that Bavarian police were asking asylum seekers to surrender cash exceeding €750, while in Baden-Wurttemberg the threshold was €350. This variation in implementation is permissible under federal law. A spokesperson for the Baden-Wurttemberg integration minister clarified that while cash was taken from some refugees during police checks, these were not systematic searches. He stated, “In the context of a general police check, it was established that individual refugees had cash with them” and “Refugees are not being systematically searched for cash or valuables.”
Netherlands, Contributions from Income Only
The Dutch Junior Minister for Immigration recently indicated to the press that the country would not adopt the Danish or German approach of compelling asylum seekers to surrender small amounts of money or jewelry. The reasoning, according to his spokesperson, is that “this is not currently a priority, as we do not anticipate it would significantly impact the influx" (Volkrant, January 23, 2016). For decades, employed asylum seekers in the Netherlands (allowed after six months and limited to 24 weeks annually) have contributed any income exceeding 185 euros per month to reception costs.
EU Law Compliance?
Do these rules and practices of seizing assets to cover reception costs align with EU law, specifically the Reception Conditions Directive 2013/33? This analysis will not address whether the confiscation of valuables and jewelry complies with Article 1 of the First Protocol and Article 8 ECHR.
The pertinent provisions are found in Article 17(3) and (4) of the 2013 recast Reception Conditions Directive:
“3. Member States may make the provision of all or some of the material reception conditions and health care subject to the condition that applicants do not have sufficient means to have a standard of living adequate for their health and to enable their subsistence.
4. Member States may require applicants to cover or contribute to the cost of the material reception conditions and of the health care provided for in this Directive, pursuant to the provision of paragraph 3, if the applicants have sufficient resources, for example if they have been working for a reasonable period of time.
If it transpires that an applicant had sufficient means to cover material reception conditions and health care at the time when those basic needs were being covered, Member States may ask the applicant for a refund.”
Identical provisions were previously in Article 13(3) and (4) of the original Reception Conditions Directive 2003/9 and remained unchanged in the 2013 recast. A review of their legislative history can enhance our understanding.
Legislative History of EU Rules on Financial Contributions from Asylum Seekers
The Commission’s proposal for the initial 2003 Directive (COM(2001)181) introduced Article 19, which enabled Member States to require financially capable applicants to share reception costs. Decisions were to be made individually, objectively, and impartially, with reasons provided, and subject to judicial review, explicitly referencing Article 47 of the EU Charter.
During initial discussions, eight Member States proposed amendments. Six suggested referencing “the general principle of the applicant’s genuine need, leading to entitlement to material benefits” (document 11320/01, p. 33). Germany proposed that “a portion of the applicant’s income should always be protected”. This solely addressed income, implying that any amount exceeding a certain limit could be seized. The Netherlands made a similar proposal linking contributions to income. Neither proposal mentioned seizing assets, only potential contributions from income.
By January 2002, Article 19, along with two others, was consolidated into a new Article 18, titled ‘Financial means test’ (document 5300/02). The Dutch proposal concerning contributions from employment income was included, while the German proposal to seize income above a fixed threshold was not. In February 2002, the article was significantly condensed (e.g., replacing the means test with a condition requiring applicants to lack sufficient means to cover basic needs and removing the employment income reference) and renumbered as Article 17 (document 6253/02). Portugal and Greece advocated for reducing reception conditions for asylum seekers or their family members who entered the labor market. Germany proposed integrating Article 17 into the general material reception conditions article.
In early March 2002, the Asylum Working Party reviewed the revised proposal with drafting suggestions from the Spanish Presidency (document 6906/02). Portions of the previous Article 17 were integrated into Article 13, aligning with Germany’s earlier suggestion.
In April 2002, at Germany’s suggestion, “and health care” was added to Article 13, paragraph 3. Additionally, “for example if they have been working for a reasonable period of time” was inserted into paragraph 4, reestablishing an explicit connection to labor market participation (document 7802/02). This iteration of Article 13, accepted by Coreper and the Council in 2002, became part of the Directive unanimously adopted on January 27, 2003.
Furthermore, the 2013 recast Directive allows Member States to deny or revoke benefits if asylum seekers ‘concealed financial resources’ (Article 20). In its CIMADE and GISTI judgment, the CJEU determined that Article 20 provides a comprehensive list of reasons for reducing or withdrawing benefits.
Analysis
Considering this legislative history alongside general EU law principles and the EU Charter:
(1) The matter of asylum seekers contributing to reception costs using their resources was extensively discussed during the Directive’s negotiation.
(2) This issue was also repeatedly examined in relation to asylum seekers’ access to the labor market within the Member State and the resulting income.
(3) Although the Directive permits Member States to impose a means test for access to material reception conditions, this does not equate to asset confiscation. The determining factor is not whether the asylum seeker possesses more than a predetermined amount of money or assets, but whether they possess sufficient means to maintain a standard of living adequate for their health and subsistence.
(4) Given (a) that the Directive addresses the financial contributions of asylum seekers to material reception costs and (b) that it establishes minimum standards to prevent secondary movements between Member States (recitals 7 and 8), Member States are prohibited from implementing less favorable rules, only more favorable ones (see recital 15). The Court of Justice has consistently held that Member States cannot introduce conditions other than those stipulated in EU Directives or Regulations (see judgments in Ben Alaya, Koushkaki and Air Baltic. Additionally, drawing parallels to the CIMADE and GISTI ruling, the grounds for denying or regulating access to benefits within the Directive are likely exhaustive.
(5) Article 13(3) empowers Member States to make granting material reception conditions and health care contingent upon applicants lacking sufficient means to maintain a standard of living suitable for their health and subsistence within the Member State. Consequently, such a decision to exclude an asylum seeker from material reception conditions can only be made after the Member State has determined that the applicant has sufficient means to support themselves adequately. In line with the overarching principle of proportionality in EU law, it is debatable whether a Member State could completely deny access to the benefits system simply because an asylum seeker possesses a small sum of money or valuables. Access should only be refused if the applicant has an ongoing alternative source of funds or possesses enough wealth to sustain themselves for an extended period.
(6) Article 13(4) enables Member States to require applicants with sufficient resources to contribute to the cost of material reception conditions and health care. The conditions outlined in paragraph 3 explicitly apply in this context as well. The Commission’s statement regarding Article 19 of its proposal remains relevant: “Decisions regarding applicant contributions should be made individually, objectively, impartially, and with clear justification if unfavorable, to ensure the most accurate review possible.”
While the final version of the Directive applies this clause to the reduction or withdrawal of benefits rather than the obligation to contribute, general EU law principles still mandate that national administrative decisions linked to EU law must be fair (see the CJEU’s YS and M and S ruling on asylum procedures, discussed here; and the Mukarubega and Boudjliba judgments on the return of irregular migrants, discussed here). Therefore, any decision regarding asylum seeker contributions must be individualized, justified, and consider each asylum seeker’s specific circumstances.
These decisions must also adhere to other general principles of EU law, particularly proportionality. This means any property confiscation must be necessary to achieve a legitimate government objective. It is difficult to justify confiscating property when a less drastic measure (such as delaying or reducing benefit payments by an equivalent amount, following the means test rules) could achieve the same outcome. Again, the principle suggests that asylum seekers should only be required to contribute if they have an ongoing alternative income source or possess enough wealth to support themselves for a considerable duration.
Furthermore, any national authority decision regarding confiscation must be subject to challenge, upholding Article 47 (the right to an effective remedy) of the EU Charter of Fundamental Rights.
(7) In conclusion, a national law permitting authorities to seize all assets of an asylum seeker exceeding a fixed limit, regardless of individual circumstances, based on the grounds outlined in points 4 and 6 above, contradicts EU law.
(8) It is important to note that Denmark and Switzerland are not subject to the Directive. Denmark has an opt-out, and Switzerland is not an EU Member State. Ireland also opted out. However, all other Member States are bound by Directive 2013/33, and the UK, having opted in, is bound by the original Reception Conditions Directive 2003/9.
*The paragraph on Germany was revised on January 27th, 2016, to incorporate additional information.
Barnard & Peers: chapter 26
JHA4: chapter I:5
Photo: Danish police officer and asylum-seeker
Photo credit: www.channelnewsasia.com
Annex
Legislative history of Article 13(3) and (4) of Directive 2003/9 = Article 17(3) and (4) of Directive 2013/33 on financial contributions by asylum seekers in reception costs
The Commission’s proposal for the initial 2003 Directive COM(2001)181 contained a separate Article 19 that stated:
Article 19
Financial contribution
1. Member States may require applicants who can afford to do so to contribute to the cost of
their material reception conditions or to cover it. Decisions to provide material reception
conditions not free of charge shall be taken individually, objectively and impartially and
reasons shall be given.
2. Member States shall ensure that applicants have the right to bring proceedings before a court against the decisions referred to in paragraph 1 and that they have access to legal assistance.
The Explanatory Memorandum to this Article 19 read:
“This Article concerns the financial contribution applicants for asylum may be asked to
provide if they are provided with material reception conditions.
(1) This paragraph allows Member States to require applicants who can afford it to contribute
to the cost of their material reception conditions. The purpose is to meet the Council’s
concern regarding the requirement of “inadequate” resources of the applicants for
asylum. In any case Member States should ensure that applicants for asylum have the
possibility of being housed as even applicants with sufficient financial means might find
it impossible to find suitable housing. Decisions on applicants’ contribution should be
taken individually, objectively and impartially and reasons must be given if they are
negative in order to make possible their review as accurate as possible.
(2) In conformity with the Charter of fundamental rights (Article 47) and in line with the
case law of the Court of Justice, this paragraph ensures that the decisions taken according
to paragraph 1 can be reviewed by a judicial body (including an administrative judicial
body such as the Conseil d’Etat in France) at least in the last instance.”
Initial reactions from Member States to this article are found in document 11320/01, p. 33:
“D/E/NL/P/S and UK: reference should be made to the general principle of the real
need of the applicant, which would lead to entitlement to material benefits.
D: some of the applicant’s income should be protected in all cases.
NL: stipulate that if the applicant has a certain income, a contribution may be asked of him
to cover some or all of the costs.
D and UK: establish a general principle laying down that Member States may decide
whether or not the applicant requires material benefits.
L and A: make provision for the case in which an applicant is invited to stay in the territory
of a Member State by a national who, if applicable, has served as guarantor for the purpose
of obtaining a tourist visa. In this case, it should be possible to call on the national to
contribute to the costs.
A: reservation on the second sentence in that it creates an obligation to notify these
decisions in writing.
3 A and S: reservation on the financial aspects of legal assistance.
D and UK: a general provision on forms of appeal at the beginning of the Directive should
be sufficient.
By January 2002, Article 19 had been consolidated into a new Article 18, merging several provisions of the proposal (document 5300/02):
“Article 18 (consolidating Articles 14 bis, 15(4) and 19)
Financial means test
1. Member States may make the grant of all or some of the material reception conditions,
as well as the requirement that applicants and their accompanying family members
cover or contribute to the cost thereof, subject to a financial means test of applicants and
their accompanying family members in accordance with the provisions of this Article.
2. Member States may also reduce or withdraw material reception conditions within a
reasonable period after applicants or their accompanying family members commence an
employment activity in accordance with Article 13, applying the test established in
paragraph 1.
3. Applicants and their accompanying family members may be subject to one or more of
the measures provided for in paragraphs 1 and 2 when it is confirmed that they have
sufficient means.
4. Decisions under this Article shall be taken individually, objectively and impartially and
reasons shall be given.”
The article was substantially shortened in February 2002 (e.g., removing the means test and the reference to income from work) and renumbered Article 17. This, along with footnotes from Member States and the Commission, is found in document 6253/02:
“**Article 17 (formerly 18)**1
Financial means criteria
1. Member States may make the grant of all or some of the material reception conditions subject to the condition that applicants do not have sufficient means to cover their basic needs.
2. If it transpires that an applicant had sufficient means to cover these basic needs at the time
when material reception conditions were being provided, then Member States may ask these
to refund.2
3. Decisions under this Article shall be taken individually, objectively and impartially and
reasons shall be given. 3
1 D : this provision should be placed at the end of Article 15.
2 P, supported by EL, suggested adding the following :
“3. Member States may also reduce or withdraw material reception conditions within a
reasonable period after applicants and their accompanying family members have been
allowed access to the labour market in accordance with Article 13, applying the test
established in paragraph 1.
4. In the cases referred to in paragraph 3, if they are not financially independent, Member
States shall grant them the food allowance mentioned in Article 8 and access to basic
social care.”
(present paragraph 3 would become 5).
3 Cion : reinsert a paragraph which was included in 12839/01 ASILE 49 (former
Article 14A(6)) :
“Member States shall ensure that before the decisions referred to in paragraph 2 are notified to
the applicants for asylum [and their accompanying family members] the other Articles of
Chapter III of this Directive are applied”.
At a meeting on March 5-6, 2002, the Asylum Working Party reviewed the revised proposal incorporating drafting suggestions from the Spanish Presidency (document 6906/02). Sections of the former Article 17 were incorporated into Article 13, reflecting Germany’s earlier recommendation.
Article 13
General rules1
1. Member States shall ensure that material reception conditions are available to applicants when they make their application.
2. Member States shall make provisions on material reception conditions to ensure a standard of living adequate for the health and the well-being of applicants.
Member States shall ensure that standard of living is met in the specific situation of persons
who have special needs, in accordance with Article 17, as well as in relation to the situation of
persons who are in detention.
3. Member States may make the grant of all or some of the material reception conditions subject to the condition that applicants do not have sufficient means to have a standard of living adequate for their health and well-being.2
4. Member States may require applicants to cover or contribute to the cost of the material
reception conditions and of the health care provided for in this Directive, pursuant to the
provision of paragraph 3, when the applicants have sufficient resources.
5. Material reception conditions may be provided in kind, or in the form of financial allowances or vouchers or in a combination of these provisions.
Where Member States provide material reception conditions in the form of allowances or
vouchers, their amount shall be set in accordance with the principles set for in this Article.
1 A : a general rule providing for exceptions to be applied by Member States in extraordinary
situations should be introduced.
2 B, D, F and P : the term “well-being” is s too vague and should be defined.
NL, S, UK : say “to enable their subsistence” instead of “to have a standard of living adequate
for their health and well-being”.
In April 2002, at Germany’s suggestion, the words “and health care” were added to paragraph 3. In addition, the words “for example if they have been working for a reasonable period of time” were added to paragraph 4, re-establishing a clear link to labor market participation (document 7802/02).
This version of Article 13 was accepted by both Coreper and the Council and was incorporated into the Directive adopted on January 27, 2003.