A worthy standard of living for asylum seekers and Belgian catch-22
What is the minimum standard for the reception of asylum seekers within the Union? On the 30th of February in case C-79/13, while precluding a Belgian catch-22 legislation, the CJEU gave an answer to that question in a preliminary ruling referred by the Arbeidshof te Brussel (Brussels Higher Labour Court).
The issue concerns the interpretation of Council Directive 2003/9, the harmonizing directive on the reception of asylum seekers. The purpose of the Directive is to lay down common minimum standards within the Union and it is a part of the principal aim of a common European asylum system.
Mr. Saciri and Mrs. Saciri, with three joint children, applied for asylum at the Belgian Alien Office. When they lodged their application for asylum they also applied for reception at the national authority Fedasil (reception agency).
Fedasil informed the Saciri family that they could not provide them with housing and therefore referred them to a social assistance agency. The Saciri family then applied for financial aid at the social assistance agency to which they had been referred to by Fedasil. The social assistance agency rejected the family’s application for social aid on the grounds that an application could only be granted if the family would have been residing within an accommodation provided by Fedasil . Consequently, the Saciri family were trapped in a catch-22 where the family could neither get accommodation in kind, nor with a substituting financial allowance provided by public assistance system.
The Saciri family brought action against Fedasil in a lower Belgian court who ruled that Fedasil were to reimburse the family. Fedasil then appealed that court’s decision to Arbeidshof te Brussel who referred three question to the CJEU, asking essentially:
Is art. 13(5) of Directive 2003/9 to be interpreted as meaning that when a state has opted for financial allowance, that financial allowance must be of such, as to enable asylum seekers to obtain accommodation from the time of introduction of the application?
Furthermore, is Directive 2003/9 to be interpreted as to preclude a national legislation which refers asylum seekers to an agency, within the general public assistance system, on the ground that the facilities for accommodation of asylum seekers is overloaded?
Legal considerations
Art. 13 of Directive 2003/9 contain general rules on the material reception conditions that member states are obligated to provide for asylum seekers. Art. 13(5) stipulate that material reception may be provided for in kind or by financial allowances or vouchers.
With regard firstly to the time from which the member state is to provide material reception, the CJEU referred to the wording of art. 13(1), stating that it must be considered apparent that material reception must be available from the time of application. Furthermore the Court argued, considering the general scheme and purpose of Directive 2003/9, in conjunction with the obligation to respect and protect human dignity as stipulated in art. 1 of the CFREU, that a national measure that deprives an asylum seeker minimum protection, even for a temporary time, must be precluded. Therefore, in order for the interpretation of art. 13(5) to be coherent with the purpose and wording of the Directive and following the line of earlier case law, such as Cimade and Gisti, the Court argued that material reception must be granted at the time when an asylum seeker apply for asylum.
With regard secondly to the amount of the financial allowances granted, the Court argued that reading art. 13(5) in conjunction with art. 13(2), the amount of financial aid must be enough to ensure the applicant subsistence. Pursuant to art. 2(j) subsistence is to be understood as including housing, food and clothing, including consideration to special needs required.
Furthermore, the Court stated that the financial allowance must be sufficient to preserve family unity and regard the best interest of the child. Consequently, the Court concluded, that when a member state has opted for material reception on the form of financial allowance that allowance must ensure a dignified standard of living by enabling the whole family the same housing, unconditionally on whether that housing is of private or public character.
For the matter of the Catch-22 nature of the Belgian legislation, the Court recognized the possibility of ensuring the substantive conditions by financial aid, as stipulated by the Directive 2003/9, if the member state is not in a position to provide material reception in kind. The Directive does indeed give a certain margin of discretion as to the method by which member states provide material reception but according to the Court, such a discretion cannot condition the fulfillment of minimum standard. Finally, the Court gave a quite clear guideline concerning the incompatibily of a catch-22 legislation, such as the one in issue, by stating that the refusal to fulfill substantive reception, by derogation from minimum standards stipulated in the Directive, cannot be justified with the saturation of resources provided by a reception agency such as Fedasil.
Accordingly, the Court concluded that the interpretation Directive 2003/9 does not preclude a national legislation which refers asylum seekers to the general public assistance agency, if that agency can provide a reception that fulfills the minimum standards as set out by the directive. However, the interpretation of the Directive does preclude a national legislation that conditions the reception for asylum seekers to the accessibility and resources of a reception agency at the time of application.
Comments
Since the Directive stipulate specific minimum criteria for reception provided by the member states in kind but lacks to define specific criteria for reception provided through financial aid, the decision by the Court must be considered to be an extension of the protection scope of the Directive, that obligates member states to provide the same reception unconditionally on the method of choice.
Furthermore,the Directive does only oblige member states to protect family unity as far as possible, wherefore the descision was needed to secure the full right to family life for people seeking protection. The Court recognized that problem and increased the protection for families by preconditioning family unity for the reception to be considered adequate.
Finally, the Court decision clearly precludes a legislations with a catch-22 nature, such as the one in issue, when prohibiting derogations from fulfillment of minimum criteria by justification due to saturation. That is obviously an important stand by the Court to secure the protection for asylum seekers from arbitrary bureaucrazy or attempts by member states to bypass the provisions of the Directive.
What is the minimum standard for the reception of asylum seekers within the Union? On the 30th of February in case C-79/13, while precluding a Belgian catch-22 legislation, the CJEU gave an answer to that question in a preliminary ruling referred by the Arbeidshof te Brussel (Brussels Higher Labour Court).
The issue concerns the interpretation of Council Directive 2003/9, the harmonizing directive on the reception of asylum seekers. The purpose of the Directive is to lay down common minimum standards within the Union and it is a part of the principal aim of a common European asylum system.
Factual circumstances of the case
Mr. Saciri and Mrs. Saciri, with three joint children, applied for asylum at the Belgian Alien Office. When they lodged their application for asylum they also applied for reception at the national authority Fedasil (reception agency).
Fedasil informed the Saciri family that they could not provide them with housing and therefore referred them to a social assistance agency. The Saciri family then applied for financial aid at the social assistance agency to which they had been referred to by Fedasil. The social assistance agency rejected the family’s application for social aid on the grounds that an application could only be granted if the family would have been residing within an accommodation provided by Fedasil . Consequently, the Saciri family were trapped in a catch-22 where the family could neither get accommodation in kind, nor with a substituting financial allowance provided by public assistance system.
The Saciri family brought action against Fedasil in a lower Belgian court who ruled that Fedasil were to reimburse the family. Fedasil then appealed that court’s decision to Arbeidshof te Brussel who referred three question to the CJEU, asking essentially:
Is art. 13(5) of Directive 2003/9 to be interpreted as meaning that when a state has opted for financial allowance, that financial allowance must be of such, as to enable asylum seekers to obtain accommodation from the time of introduction of the application?
Furthermore, is Directive 2003/9 to be interpreted as to preclude a national legislation which refers asylum seekers to an agency, within the general public assistance system, on the ground that the facilities for accommodation of asylum seekers is overloaded?
Legal considerations
Art. 13 of Directive 2003/9 contain general rules on the material reception conditions that member states are obligated to provide for asylum seekers. Art. 13(5) stipulate that material reception may be provided for in kind or by financial allowances or vouchers.
With regard firstly to the time from which the member state is to provide material reception, the CJEU referred to the wording of art. 13(1), stating that it must be considered apparent that material reception must be available from the time of application. Furthermore the Court argued, considering the general scheme and purpose of Directive 2003/9, in conjunction with the obligation to respect and protect human dignity as stipulated in art. 1 of the CFREU, that a national measure that deprives an asylum seeker minimum protection, even for a temporary time, must be precluded. Therefore, in order for the interpretation of art. 13(5) to be coherent with the purpose and wording of the Directive and following the line of earlier case law, such as Cimade and Gisti, the Court argued that material reception must be granted at the time when an asylum seeker apply for asylum.
With regard secondly to the amount of the financial allowances granted, the Court argued that reading art. 13(5) in conjunction with art. 13(2), the amount of financial aid must be enough to ensure the applicant subsistence. Pursuant to art. 2(j) subsistence is to be understood as including housing, food and clothing, including consideration to special needs required.
Furthermore, the Court stated that the financial allowance must be sufficient to preserve family unity and regard the best interest of the child. Consequently, the Court concluded, that when a member state has opted for material reception on the form of financial allowance that allowance must ensure a dignified standard of living by enabling the whole family the same housing, unconditionally on whether that housing is of private or public character.
For the matter of the Catch-22 nature of the Belgian legislation, the Court recognized the possibility of ensuring the substantive conditions by financial aid, as stipulated by the Directive 2003/9, if the member state is not in a position to provide material reception in kind. The Directive does indeed give a certain margin of discretion as to the method by which member states provide material reception but according to the Court, such a discretion cannot condition the fulfillment of minimum standard. Finally, the Court gave a quite clear guideline concerning the incompatibily of a catch-22 legislation, such as the one in issue, by stating that the refusal to fulfill substantive reception, by derogation from minimum standards stipulated in the Directive, cannot be justified with the saturation of resources provided by a reception agency such as Fedasil.
Accordingly, the Court concluded that the interpretation Directive 2003/9 does not preclude a national legislation which refers asylum seekers to the general public assistance agency, if that agency can provide a reception that fulfills the minimum standards as set out by the directive. However, the interpretation of the Directive does preclude a national legislation that conditions the reception for asylum seekers to the accessibility and resources of a reception agency at the time of application.
Comments
Since the Directive stipulate specific minimum criteria for reception provided by the member states in kind but lacks to define specific criteria for reception provided through financial aid, the decision by the Court must be considered to be an extension of the protection scope of the Directive, that obligates member states to provide the same reception unconditionally on the method of choice.
Furthermore,the Directive does only oblige member states to protect family unity as far as possible, wherefore the descision was needed to secure the full right to family life for people seeking protection. The Court recognized that problem and increased the protection for families by preconditioning family unity for the reception to be considered adequate.
Finally, the Court decision clearly precludes a legislations with a catch-22 nature, such as the one in issue, when prohibiting derogations from fulfillment of minimum criteria by justification due to saturation. That is obviously an important stand by the Court to secure the protection for asylum seekers from arbitrary bureaucrazy or attempts by member states to bypass the provisions of the Directive.
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