Vasiliki Apatzidou, legal practitioner specializing in EU Asylum Law and PhD Student at Queen Mary University of London.

Photo credit: Rebecca Harms, via wikicommons

The Common European Asylum System (CEAS) and its current instruments, including the recast Reception Conditions Directive, have been in effect for almost a decade since 2013. However, the large influx of asylum seekers in 2015 highlighted significant shortcomings, inconsistencies, and gaps in EU asylum legislation. This response to the refugee ‘crisis’ diminished the relevance of the harmonization goals. Ironically, this ‘crisis’ occurred just two years after the CEAS reforms were finalized in mid-2013. As a result, the Commission introduced a new European Agenda on Migration in 2015, which included both immediate and long-term measures and proposals.

In the long term, the European Commission presented a third legislative package in May and July 2016, intending to strengthen asylum seeker protection and standardize rules and procedures across Member States. The Commission emphasized that addressing ‘asylum shopping’ and ‘secondary movements’ were top priorities for the CEAS reforms. Notably, the 2016 package included a proposal for a recast Reception Conditions Directive (RCD), aiming to achieve these goals. While negotiations began in 2016, resulting in a political agreement between the Council and the European Parliament in 2018, the proposal remains unadopted as of today. Despite further attempts during the Austrian Presidency, none of the instruments proposed in 2016, except for the EU Asylum Agency, have been adopted, and negotiations have come to a standstill.

Consequently, in 2020, the Commission introduced the New Pact on Migration and Asylum to revitalize Council negotiations and offer a fresh perspective on migration. Notably, the Commission chose not to modify the recast RCD text within the 2020 Pact on Migration and Asylum, given the existing provisional agreement on it. As the Council prepares to reopen discussions with the European Parliament concerning the recast RCD, this blog post will examine its most significant amendments, focusing on measures intended to curb ‘secondary movements’ and ‘asylum shopping,’ which are central to the proposed legislation.

This objective involves two key approaches. Firstly, the legislation proposes measures to improve asylum seekers’ living standards and integration opportunities, ensuring a dignified standard of living across all Member States. Secondly, new measures aim to restrict autonomy and impose sanctions on asylum seekers. This dual approach aims to ensure that asylum applications are examined in the ‘first country of asylum,’ thereby preventing ‘asylum shopping.’ Recital 13 of the recast RCD explicitly states that ‘applicants do not have the right to choose the Member State of application’ and ‘must apply for international protection in accordance with the Dublin Regulation.’ While the Commission proposed replacing the Dublin III Regulation with an Asylum and Migration Management Regulation in 2020, it remains under negotiation. Therefore, for this blog post, we will refer to the existing Dublin III Regulation.

Measures to enhance Integration Prospects

The provisional agreement emphasizes enhancing integration measures for asylum seekers, ensuring they have opportunities for inclusion wherever they are required to apply for asylum. By providing dignified standards and equal integration opportunities across all Member States, the Commission aims to discourage ‘asylum shopping’ and ‘secondary movements.’ For instance, the legislation proposes allowing asylum seekers to work after six months, as opposed to the current nine-month framework (Art. 15), ensuring equal treatment with nationals regarding employment terms and conditions (Art. 15, Para 3). It also grants access to vocational training and language courses from day one (Art. 15a). Additionally, it guarantees access to primary and secondary healthcare, including mental, sexual, and reproductive health care (Art. 16), and mandates that children enter the school system within two months of arrival, instead of the current three-month framework (Art. 14). These measures aim to enhance integration prospects, discouraging asylum seekers from moving to other countries for better employment or education opportunities. While generally beneficial for those seeking protection, it is crucial to acknowledge that integration also depends on factors like actual employment prospects, inclusion opportunities, and the economic situation of the responsible Member State. These factors can be influenced by large-scale arrivals of third-country nationals, often seen in EU countries with external borders.

Sanctions for being present on the territory of a ‘non-responsible’ Member State

Article 17a exemplifies the recast RCD’s focus on preventing ‘asylum shopping’ and ‘secondary movements.’ It states that an applicant present in a Member State other than the one where they are required to be should not be entitled to material reception conditions, access to the labor market, language courses, or vocational training from the moment a transfer decision is issued. This provision allows for reducing or withdrawing reception conditions upon notification of the transfer decision, even if the actual transfer occurs later, potentially months after the notification. The only guarantee is that the withdrawal should not compromise ‘a dignified standard of living,’ including access to necessary healthcare, a point reaffirmed by the European Court of Justice. However, the practical implementation of this guarantee remains debatable.

Furthermore, the new paragraph 1 of Article 19, concerning the reduction or withdrawal of material reception conditions, allows for this action if an applicant is required to be present in a specific Member State according to the Dublin Regulation. This provision implies that asylum seekers who have ‘illegally’ left the ‘first country of asylum’ for another Member State may face sanctions, including the complete withdrawal of reception conditions. Consequently, an applicant will only be entitled to the full benefits and guarantees of the recast RCD when present in the Member State determined by the Dublin Regulation. Through this approach, the Commission aims to deter ‘secondary movements’ to other Member States, as asylum seekers would only enjoy the full set of rights provided in the recast RCD when in the ‘responsible’ Member State, as per the Dublin Regulation.

Restrictions on the Freedom of Movement: Prevention of ‘absconding’

In addition to sanctions for applicants under the Dublin Regulation, the Commission proposes allowing states to restrict applicants’ residence to a specific location suitable for housing them if there is a risk of absconding. This restriction is particularly relevant in cases where: a) applicants are required to be present in another Member State, and b) applicants have been transferred to the Member State where they are required to be present in accordance with the Dublin Regulation after absconding to another Member State (Art. 7). This provision enables restricting freedom of movement to prevent ‘absconding’ and subsequent illegal movement to another Member State, even based on the ‘risk’ of absconding. Additionally, the proposed Directive defines ‘absconding’ and ‘risk of absconding’ (Art. 2 (10) and (11)) for the first time within the asylum acquis. Previously, the ‘risk of absconding’ was only defined in the Return Directive. Beyond movement restrictions, detention may also be permitted under the Dublin Regulation (Art. 8g).

It is important to highlight that the proposal does not solely address applicants subject to Dublin transfers. The recast RCD introduces different types of residence restrictions (see proposed Articles 6a and 6b). This is a new development compared to the current Directive, although a detailed analysis of these restrictions falls outside the scope of this blog post and has been extensively examined elsewhere.

Conclusion

The provisional agreement for a recast RCD strengthens guarantees and ensures ‘dignified living’ even when an asylum applicant is in a ’non-responsible’ Member State. However, the possibility of reducing material reception conditions and integration prospects to discourage ‘secondary movements’ should not be disregarded. The EU asylum policy debate reveals a recurring theme: external border countries like Greece, Italy, and Spain demand more solidarity, arguing they cannot handle the burden alone. In contrast, northern European countries like Germany and the Netherlands advocate for stronger measures to prevent secondary movements. This difference in viewpoints was evident in the negotiations for the proposed Reception Conditions Directive. However, as negotiations on the 2020 asylum and migration instruments progress, it is vital to recognize that ‘reducing secondary movements’ and ‘increasing solidarity’ should not be treated as separate objectives. Discussions about reducing secondary movements should occur in conjunction with discussions about increased solidarity. The recast Reception Conditions Directive negotiations should proceed within the context of enhanced solidarity, should the Council decide to reopen consultations. This is crucial before the Directive’s final adoption, as it contains positive amendments that improve integration prospects, safeguard a dignified standard of living, and enhance procedural guarantees for applicants with special reception needs.

Endnotes

[i] Giulia Vicini, ‘The EU Refugee Crisis and the ‘Third-Phase’ Asylum Legislation: The End of the Harmisation Approach or Its Revival’ in Valsamis Mitsilegas, Violeta Moreno-Lax and Niovi Vavoula (eds.) Securitising Asylum Flows: Deflection, Criminalisation and Challenges for Human Rights (Brill 2020)

[ii] Jens Vedsted-Hansen, ‘Reception Conditions as Human Rights: Pan-European Standard or Systemic Deficiencies’ in Vincent Chetail, Philippe De Bruycker and Fransesco Maiani (Eds.) Reforming the Common European Asylum System: The New European Refugee Law (Brill Nijhoff 2016).