An examination of the Reception Conditions Directive and its recast in light of Article 41 and 47 of the Charter of Fundamental Rights of the

Transcription

1 An examination of the Reception Conditions Directive and its recast in light of Article 41 and 47 of the Charter of Fundamental Rights of the European Union December 2013

2 With financial support from the Fundamental Rights and Citizenship Programme of the European Union. 2

3 Contents 1. Introduction The Scope of the Charter of Fundamental Rights of the European Union Application of the Charter of Fundamental Rights and the role of the Court of Justice of the EU The European Convention of Human Rights and the Charter of Fundamental Rights of the European Union Article 41 The Right to Good Administration The right to be heard... 9 Where it may apply Article 7 RCD and Article 7 rrcd, Residence and freedom of movement Article 16 RCD and Article 20 rrcd, Reduction or withdrawal of material reception conditions Article 22 rrcd, Assessment of the special reception needs of vulnerable persons The duty to state the reasons Where it may apply Article 7 RCD and Article 7 rrcd, Residence and freedom of movement Article 9 rrcd, Guarantees for detained applicants Article 16 RCD and Article 20 rrcd, Reduction or withdrawal of reception conditions Article 22 rrcd, Assessment of the special reception needs of vulnerable persons The right to good administration and non-compliance with the rules established by the relevant administration Where it may apply Article 6 RCD and 6 rrcd, Documentation Article 5 RCD and Article 5 rrcd The provision of information Article 9 rrcd, Guarantees for detained applicants Article 47 - The Right to an Effective Remedy and a Fair Trial The scope of the right to an effective remedy and a fair trial Where it may apply Article 9 rrcd- Guarantees for detained applicants The right to legal aid Where it applies Article 26 rrcd, and Article 21 RCD - Appeals National procedural autonomy Example of where it can apply Article 9 rrcd - Guarantees for detained applicants Conclusion

4 1. Introduction With the entry into force of the Lisbon Treaty, the Charter of Fundamental Rights of the European Union (the Charter) has the same legal value as the Treaties. 1 Nevertheless, its scope and use in the field of asylum is limited. This paper is part of the FRAME project which aims to promote the application of the Charter through a variety of means. One of these means is to examine certain pieces of the EU asylum acquis in light of the Charter of Fundamental Rights of the EU. This paper will examine the Reception Conditions Directive ( RCD ) and it s the recast Reception Conditions Directive ( rrcd ) 2 in light of two articles of the Charter, Article 41 (the right to good administration) and Article 47 (the right to an effective remedy and to a fair trial). 3 The Reception Conditions Directive and its recast stipulate the reception conditions for persons seeking international protection. The recast Reception Conditions Directive entered into force in July 2013 and the deadline for transposition is July The UK has not opted into the recast but is still bound by the 2003 Reception Conditions Directive. Ireland and Denmark did not opt in to the Reception Conditions Directive or its recast. Article 41, the right to good administration, was chosen because there is no corresponding article under the European Convention of Human Rights; Article 47, the right to an effective remedy and a fair trial, was selected given the fact that is it is broader than its counterpart (Article 6 and Article 13) of the European Convention of Human Rights. This paper aims to provide argumentation as to how the Charter, as interpreted by the CJEU and in light of the ECHR, informs the interpretation and implementation of the Reception Conditions Directive and its recast. 1 Article 6 (1); European Union, Treaty of Lisbon Amending the Treaty on European Union and the Treaty Establishing the European Community, 13 December 2007, 2007/C 306/01. 2 European Union: Council of the European Union, Council Directive 2003/9/EC of 27 January 2003 Laying Down Minimum Standards for the Reception of Asylum Seekers in Member States, 6 February 2003, OJ L 31; 6 February 2003, and European Union: Council of the European Union, 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), 29 June 2013, L 180/96. 3 European Union: Council of the European Union, Charter of Fundamental Rights of the European Union (2007/C 303/01), 14 December 2007, C 303/1. 4

5 2. The Scope of the Charter of Fundamental Rights of the European Union Given that the Charter is now primary EU law, its most important role is that it reinforces the necessity of interpreting secondary EU law in light of fundamental rights. The Charter, like general principles of law, serves as an aid to interpret secondary EU law; similarly national law falling within the scope of EU law must also be read in light of the Charter. In addition, if secondary legislation or national legislation falling within the scope of EU law violates the Charter, the offending provision, not necessarily the act as a whole could be set aside. 4 However, there are limitations as to when the Charter can be applied. The Charter s most important caveat in terms of its scope, Article 51 (1), provides that Charter provisions are only addressed to the Member States when they are implementing European Union law. There is considerable academic debate as to what is meant by implementing but recently the question was put to rest when the CJEU in Akerberg Fransson equated implementation of EU law to falling within the scope of EU law. 5 To put it another way, the Charter is only applicable in instances where EU law is applicable. 6 The Court also looked at this issue in N.S. v UK and Ireland. 7 One of the questions posed to the Court was whether a Member State s decision to examine a claim for asylum which is not its responsibility on the basis of Article 3(2) Dublin Regulation 8 falls within the scope of EU law for the purposes of Article 6 TEU and/or Article 51 of the Charter. The Court found that the discretionary element of Article 3(2) forms part of the Dublin Regulation and in turn, part of the CEAS. Therefore, a Member State that exercises that discretionary power must be considered to be implementing EU law within the meaning of Article 51 (1) of the Charter. The following categories can be said to fall within the scope of European Union law: - Measures implementing EU law - Any national measure that negatively affects any of the individual rights guaranteed by EU law, 9 i.e. it covers national measures, which Member States may seek to justify on the basis of on a specific derogation clause under the Treaty 10, in addition, measures taken for reasons of public interest must be compatible with EU fundamental rights. 11 When a Member State derogates from the substantive provisions of EU law, it is still implementing EU law given that the derogations must always meet the provisions imposed by EU law. Matters which involve purely national law are not governed by the Charter and general EU law principles. Nevertheless, in certain instances, strict national procedural rules that call into question the uniform application of EU law could come under the scope of primary EU law. In order for EU law to be effective, EU rights must be accompanied by remedies. Thus, although it is for the Member States to establish a system of legal remedies and procedures, EU law requires them to do so in a way that ensures respect for the right to effective judicial protection. This is now codified in Article 19 (1) TEU which provides that Member States shall provide remedies sufficient to ensure effective legal protection in the fields covered by Union law and in Article 47 of the Charter. Furthermore, in accordance with the principle of sincere cooperation laid down in Article 4(3) TEU, national courts are required, so far as possible, to interpret and apply national procedural rules governing the exercise of rights of action in a way that achieves that result. Member States must ensure the full effect of EU law, including the obligation that national remedies must ensure that substantive rights provided by EU law are upheld. 12 The Charter also provides its own safeguards to any limitations on its rights. Article 52(1) provides; Any limitation on the exercise of the rights and freedoms recognised by this Charter must be provided for by law and respect the essence of those rights and freedoms. Subject to the principle of proportionality, limitations may be made only if they are necessary and genuinely meet objectives of general interest recognised by the Union or the need to protect the rights and freedoms of others. 4 Koen Lenaerts, Exploring the Limits of the EU Charter of Fundamental Rights, European Constitutional Law Review, 8 (2012), p CJEU, Case C-617/10, Åklagaren v Hans Åkerberg Fransson, 26 February 2013, para Paul Craig, Paul, EU Administrative Law Oxford University Press, p503. For more on the meaning of Article 51 (2) see Xavier Groussot, Laurent Pech and Gunnar Thor Petursson, The Scope of the Application of EU Fundamental Rights on Member States Action: In Search of Certainty in EU Adjudication, Eric Stein Working Paper No 1/ CJEU, Case C-411/10 and C-493/10, N. S. (C 411/10) v. Secretary of State for the Home Department and M. E. (C 493/10) and others v. Refugee Applications Commissioner, Minister for Justice, Equality and Law Reform, 21 December 2011, para Council Regulation (EC) No. 343/2003 of 18 February 2003 establishing the criteria and mechanisms for determining the Member State responsible for examining an asylum application lodged in one of the Member States by a third country national, L 50/ CJEU, Case C-260/89, Elliniki Radiophonia Tileorassi, 18 June See for example, Article 52 (1) TFEU: The provisions of this Chapter [on the right of establishment] and measure taken in pursuance thereof shall not prejudice the applicability of provisions laid down by law, regulation or administrative action providing for special treatment for foreign nationals on grounds of public policy, public security or public health. 11 CJEU, Case 120/78, Rewe-Zentral AG v Bundesmonopolverwaltung für Branntwein, 20 February This was recently illustrated in CJEU, C-279/09, DEB Deutsche Energiehandels und Beratungsgesellschaft, 22 December

6 3. Application of the Charter of Fundamental Rights and the role of the Court of Justice of the EU The CJEU is not a human rights court; its purpose is to in ensure that enacted EU law is respected, correctly interpreted and applied. Through its jurisprudence, the Court has developed a number of principles to ensure its effect. These principles include the principle of effet utile 13, the principle of effectiveness, the principle of equivalence 14 as well as the principle that national courts must guarantee the primacy of EU law. 15 An EU measure can be challenged on the grounds that it infringes an EU general principle of law or a fundamental right. If the national court finds that there is a question regarding the legality of an EU law provision, it can refer a question to the CJEU. The Court can then rule on whether a provision of secondary EU law breaches a fundamental right/charter article or a general EU law principle. National courts however, do not have the ability to declare an act of EU law invalid, otherwise there would be incoherence in the application of EU law. 16 Therefore, the individual that is directly concerned can ask the national court to make a preliminary reference to the CJEU to rule on the legality of the relevant provision. National courts and the CJEU can use Charter provisions and general principles of EU law to interpret EU legislation; EU legislation cannot be interpreted in such a way that it breaches a Charter Article. 17 Where there is ambiguity over the interpretation of an EU law provision, preference must, as far as possible, be given to an interpretation that ensures that it is compatible with general principles of EU law. 18 Article 267 TFEU enables the CJEU to give preliminary rulings on questions regarding the interpretation of the Treaty or EU legislation, including on whether national implementing legislation breaches EU fundamental rights law or a general principle of EU law. 19 As a result of the rights and principles set out in the Charter, a general provision of EU law may need to be set aside. The Court could also set additional standards that would need to be complied with other than those set out in the relevant piece of legislation. Therefore, one needs to bear in mind the standards in the Charter and the relevant principles of EU law, not just the standards contained within the relevant legislation. 20 Under Article 267 TFEU, any national court or tribunal may request that the CJEU give a preliminary ruling on the legality of acts of an EU institution if it considers that a ruling is essential to enable it to give a judgment. Importantly, where such a question is raised in a court or a tribunal to which there is no judicial remedy, they are required to bring the matter before the CJEU. However, national courts are not required to submit a reference to the Court of Justice if the application of Union law is so obvious as to leave no scope for any reasonable doubt as to the manner in which the question raised needs to be resolved This provides that amongst several possible interpretations of a provision, the one that best guarantees the practical effectiveness of EU law should prevail. 14 This ensures that national rules must not have the effect of making the vindication of EU rights more difficult than the vindication of rights guaranteed in national law and national constitutions. 15 CJEU, Case C-555/07, Seda Kücükdeveci v Swedex GmbH & Co. KG, 19 January 2010 paras This was also found in Case C- 314/85, Foto-Frost, Ammersbek v Hauptzollamt Lübeck-Ost, 22 October 1987, paras CJEU, Case C-403/09, Jasna Detiček v Maurizio Sgueglia, 23 December 2009, para Reneman, A.M. EU Asylum Procedures and the right to an effective remedy, Uitgeverij BOX Press, 2012, p Tridimas, Takis The General Principles of EU Law, Oxford University Press, 2006, p Reneman, (n18) p CJEU, Case C-283/81, CILFIT v Ministry of Health, 6 October 1982, para 16. 6

7 4. The European Convention of Human Rights and the Charter of Fundamental Rights of the European Union As per the Charter Explanations, Article 52 (3) of the Charter is intended to ensure consistency between the Charter and the European Convention on Human Rights (ECHR). The Charter Explanations refer to the source of the rights contained in the Charter and assist in their interpretation. 22 It states that the meaning and scope of Charter articles that correspond to ECHR articles should be given the same meaning and scope as those laid down in the ECHR. 23 This includes the case law of the European Court of Human Rights (ECtHR). Therefore, one needs to take into account ECtHR case law when interpreting a Charter article. With regard to the second sentence of Article 52 (3) of the Charter 24, the Charter Explanations provide that where there is a corresponding ECHR Article, it is not to preclude the granting of wider protection by the EU, i.e. certain Charter Articles can grant a wider scope of protection in their application than their ECHR counterpart. 25 The Charter explanations provide that Article 47(2) and (3) corresponds to Article 6(1) of the ECHR, but the limitation to the determination of civil rights and obligations or criminal charges do not apply as regards Union law and its implementation. 26 In Samba Diouf Advocate General Cruz Villalon referring to the wider scope of the Charter, considered that the CJEU can interpret the Charter provisions in an independent manner that provides more scope than their ECHR counterpart. He stated: The right to effective judicial protection, as expressed in Article 47 of the EU Charter, has, through being recognised as part of European Union law by virtue of Article 47, acquired a separate identity and substance under that article which are not the mere sum of the provisions of Articles 6 and 13 of the ECHR. 27 As a result of the increase in scope, the right to a fair trial under Article 47 of the Charter is not limited, as under Article 6 ECHR to disputes concerning civil rights and obligations and criminal charges. Therefore, it is applicable in asylum cases. The following sections review certain Articles of the Reception Conditions Directive and its recast in light of Article 41 and 47 of the Charter of Fundamental Rights of the European Union. Article 41 will be examined first but given the overlap of the rights and principles contained therein, Article 47 should also be borne in mind. The text of both Articles is set out below. Article 41 The Right to Good Administration 1. Every person has the right to have his or her affairs handled impartially, fairly and within a reasonable time by the institutions, bodies, offices and agencies of the Union. 2. This right includes: (a) the right of every person to be heard, before any individual measure which would affect him or her adversely is taken; (b) the right of every person to have access to his or her file, while respecting the legitimate interests of confidentiality and of professional and business secrecy; (c) the obligation of the administration to give reasons for its decisions. 3. Every person has the right to have the Union make good any damage caused by its institutions or by its servants in the performance of their duties, in accordance with the general principles common to the laws of the Member States. 4. Every person may write to the institutions of the Union in one of the languages of the Treaties and must have an answer in the same language. 22 Official Journal of the European Union (OJEU) , No C 303. [s.l.]. ISSN "Explanations relating to the Charter of Fundamental Rights", p Explanations relating to the Charter of Fundamental Rights, OJ [2007] C303/17 24 In so far as this Charter contains rights which correspond to rights guaranteed by the Convention for the Protection of Human Rights and Fundamental Freedoms, the meaning and scope of those rights shall be the same as those laid down by the said Convention. This provision shall not prevent Union law providing more extensive protection. 25 This was also confirmed by the CJEU in, Case C-279/09, DEB Deutsche Energiehandels- und Beratungsgesellschaft mbh v. Germany, 22 December 2010, para Explanations relating to the Charter of Fundamental Rights, OJ [2007] C303/ CJEU, Case C-69/10, Brahim Samba Diouf v Ministre du Travail, de l Emploi et de l Immigration, Avocate General Cruz Villalon, 1 March 2011 para 39. 7

8 Article 47 - Right to an effective remedy and to a fair trial Everyone whose rights and freedoms guaranteed by the law of the Union are violated has the right to an effective remedy before a tribunal in compliance with the conditions laid down in this Article. Everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal previously established by law. Everyone shall have the possibility of being advised, defended and represented. Legal aid shall be made available to those who lack sufficient resources in so far as such aid is necessary to ensure effective access to justice. 8

9 5. Article 41 The Right to Good Administration This Charter provision is based on EC case law, provisions that were found in former EC treaties as well as Member States own constitutional traditions. The rights included in Article 41 are not an exhaustive set of rights which leaves scope for the CJEU to add to the principles set out below. The Right to Good Administration includes: the right to have one s affairs handled impartially, fairly (transparently) and within a reasonable period of time the right to be heard the right of access to the file It also places an obligation on the relevant national authorities to state the reasons for a decision Although not directly stated in the Article, the right to good administration, as deduced from CJEU case law and Member State practice also includes: the principles of lawfulness, non-discrimination and proportionality the right of access to documents 28 the obligation to give an indication of remedies available the duty of care. 29 The text of Article 41 as set out in the Charter only extends to the institutions, bodies, offices and agencies of the Union. However, as the right to good administration is also a general principle of EU law, it is also applicable to Member States and to the agencies of Member States. 30 The CJEU has also extended the application of Article 41 to national Member State authorities. Advocate General Kokott in Christopher Mellor v Secretary of State for Communities and Local Government provided that Article 41 of the Charter of Fundamental Rights does not just contain rules of good administration by the institutions but documents a general principle of law, which authorities of the Member States too must observe when applying Community law. 31 Article 41 is also applicable to every person, regardless of legal status or nationality despite the fact that this Article is under Title V of the Charter, entitled Citizens Rights. This is in contrast with other Charter articles under this Title, for example Article 42 or 43 of the Charter that pronounce that they are applicable to every citizen. Many of the rights and principles contained in Article 41 of the Charter also form part of Article 47 of the Charter, particularly those rights that form part of the rights of the defence, for example the right to be heard and right of access to the file The right to be heard Central to the right to good administration is the right to be heard and is specifically stipulated in Article 41 (2) (b) of the Charter. This right is not only applicable to decisions by EU institutions but also to decisions taken by national authorities, even in instances where there are no procedural rules governing the proceedings in question. In MM v Minister for Justice the CJEU found that Article 41(2) of the Charter, by its very wording is of general application. It stated that the 'Court has always affirmed the importance of the right to be heard and its very broad scope in the EU legal order, considering that that right must apply in all proceedings which are liable to culminate in a measure adversely affecting a person'. 32 It requires that the 28 CJEU, Case T-105/95, WWF UK (World Wide Fund for Nature) v Commission, 5 March The essence of the duty of care entails that the relevant administration impartially and carefully examines all factual and legal elements in a case prior to making a decision; CJEU, Case C-16/90, Eugen Nölle v Hauptzollamt Bremen-Freihafen, 4 June 1991, Advocate General Van Gerven, para 28. See also Herwig C.H. Hofmann, Gerard C. Rowe, Alexander H. Türk, Administrative Law and Policy of the European Union, Oxford University Press, 2011, p195. See also Principles of Good Administration in the Member States of the European Union, Statskontoret. 30 General principles of law are unwritten sources of law developed by the case law of the CJEU. 31 CJEU, Case C-75/08, Christopher Mellor v Secretary of State for Communities and Local Government, 22 January 2009, para. 33. This was also echoed by Advocate General Bot in Case C-604/12, H. N. v Minister for Justice, Equality and Law Reform, 7 November 2013 when he stated although the wording of Article 41(1) of the Charter refers to relations between individuals and the institutions, bodies and agencies of the Union, I think that the right to good administration is incumbent in the same way on the Member States when they are implementing EU law, para CJEU, Case C-277/11, MM v Minister for Justice, Equality and Law Reform, Ireland, 22 November 2012, paras The Court in this case was examining the right in the context of the asylum procedure. It found that the right must apply fully to the procedure in which the competent national 9

10 addressees of decisions which significantly affect their interests should be placed in a position in which they may effectively make known their views on the evidence on which the contested decision is based. 33 The right to be heard also provides that the authorities pay due attention to observations submitted by the person concerned, examining carefully and impartially all the relevant aspects of the individual case and giving a detailed statement of reasons for their decision. 34 In MM v Minister for Justice, the Court found that it was a principle to be held in all proceedings which are liable to adversely affect a person and even when the applicable legislation does not expressly provide for a procedural requirement. 35 Nevertheless, if there is a breach of the right to be heard, it will only lead to an annulment of the decision if the procedure could have produced a different decision should the right have been complied with. 36 It is also not an absolute principle and may be restricted, provided the restrictions correspond with the objectives of the measure in question and that they do not constitute a disproportionate interference with the very substance of the rights guaranteed. 37 The right to be heard needs to be distinguished from the right to an effective remedy. It implies that the individual concerned needs to be able to make their views known before a decision is adopted and a reasonable amount of time needs to be given before a decision is adopted. The right to be heard is a corollary right to the rights of the defence. In Mediocurso v. Commission the Court found that the rights of the defence were breached when the appellants were given the documents on the very same day that they needed to comment on them. It found that they were not given an effective opportunity to put forward their views on documents which directly concerned them. 38 It implies that the defence must be able to express their views effectively so any obstacles that may infringe this may lead to a breach of the rights to the defence and to the right to be heard. In summation, the right to be heard enables the applicant to express their views effectively during a procedure and before the adoption of any decision that could adversely affect their interests. 39 Where it may apply Article 7 RCD and Article 7 rrcd, Residence and freedom of movement It is submitted that the right to be heard applies to Article 7 Reception Conditions Directive and its recast. Article 7 (2) rrcd provides that Member States may decide on the residence of an applicant for reasons of public interest, public order or, when necessary, for the swift processing and effective monitoring of his or her application for international protection. Article 7 (3) rrcd provides that Member States may make the provision of material reception conditions subject to actual residence by the applicants in a specific place. Article 7 (4) rrcd states that Member States shall provide for the possibility to grant applicants temporary permission to leave the place of residence and that decisions shall be taken individually, objectively and impartially. These provisions are also contained in the Reception Conditions Directive (Article 7 (2) (4) and (5)). The right to be heard ensures that every person is entitled to make representations in writing and/or orally on matters which authorities intend to base a decision that is liable to affect them adversely. It requires the authorities to enable the person concerned to consider those matters in the course of the procedure and actually put his case forward effectively. It also implies that the authorities must take note, with all requisite attention, of the representations made by the person concerned. 40 Each of the procedures listed above have the potential to adversely affect the applicant. Therefore, the right to be heard applies. The principle applies even in instances where there is no procedure in place. It is particularly relevant in countries such as Germany where people are assigned to areas which they cannot leave without permission. The applicants can make their views known by submitting written observations, there does not need to be a formal hearing. In order for the principle to apply effectively, it would imply that an applicant is authority examines an application for international protection pursuant to rules adopted in the framework of the Common European Asylum System (para 88). 33 CJEU, Case C-28/05, Dokter and Others v Minister van Landbouw, Natuur en Voedselkwaliteit, 15 June 2006, para CJEU, Case C-269/90, HauptzoUamt München-Mitte v Technische Universität München, 21 November 1991, para MM, (n32) para 86, the Court also held that the right is now affirmed not only in Articles 47 and 48 of the Charter, which ensure respect of both the rights of the defence and the right to fair legal process in all judicial proceedings, but also in Article 41 thereof, which guarantees the right to good administration. 36 Mário Campolargo v Commission, Case T-372/00, 23 April 2002, para Dokter (n33) para CJEU, Case C-462/98, Mediocurso v. Commission, 21 September 2000, para M.M. (n32) para CJEU, Case C-277/11, M.M v Minister for Justice, Equality and Law Reform, Opinion of A.G. Bot, 26 April 2012, para

11 made aware of the fact that a Member State will be making a decision on where they live, the State would need to give the applicant forewarning. In practice most applicants for international protection are assigned to a particular centre which de facto assigns them to a particular area. It is submitted that applicants for international protection could use the right to be heard to submit their observations as to which centre they want to be assigned to before (or shortly after) being assigned to a centre or before they are to be moved from one centre to another. However it should be noted that a violation of this right will only lead to the annulment of the contested decision, if, in case the right to be heard would have been adhered to, it would have led to a different decision. 41 Such a situation could be for example when the applicant needs to reside in a particular area to be with other family members Article 16 RCD and Article 20 rrcd, Reduction or withdrawal of material reception conditions The right to be heard is an essential safeguard for the application of Article 20 rrcd, a provision which enables Member States to reduce or, in exceptional and duly justified cases, (save for when the applicant has concealed financial resources), withdraw material reception conditions. The conditions under which reception conditions can be reduced give Member States a lot of discretion as to how it is applied. For example, Member States can reduce reception conditions when an applicant abandons a place of residence without informing them or without permission; when the applicant does not comply with reporting duties or when they lodge a subsequent application. There are many valid reasons as to why an applicant may have breached one of the conditions above; an applicant may not be able to comply with reporting conditions if, for example, they were admitted to hospital. To reduce reception conditions on this basis could amount to a disproportionate response. According to EASO, the number of subsequent applications rose by 39% in the EU in 2012, which raises questions regarding the effectiveness of the asylum procedure or at a minimum indicates that a growing number of asylum seekers whose asylum application was rejected consider that their case was wrongly refused. 43 Notably, Syrians and Afghans, the nationalities that together with Somalis were the largest groups granted protection status in the EU in 2012, are represented in the top five of countries of origin submitting subsequent applications in Germany, which received a 20% increase in subsequent applications, and in Belgium, which received a 35% increase in subsequent applications. 44 Under the rrcd, there are a number of safeguards as to when a Member State can withdraw reception conditions. Material reception conditions can only be withdrawn in exceptional and duly justified cases, (save for when the applicant has concealed financial resources) which substantially limits the possibilities to withdraw reception conditions. In addition, there is an obligation to take into account the individual circumstances of the person concerned. Member States must also ensure that even when material reception conditions are withdrawn, they must ensure a dignified standard of living for all applicants. 45 Reducing or withdrawing material reception conditions would have enormous ramifications on the applicant concerned; therefore ensuring that the applicant has the right to be heard is an essential safeguard. This is particularly pertinent as any decision taken to reduce material reception conditions needs to be taken on an individual objective and impartial basis and reasons also need to be given. Therefore, when the applicant submits their reasons as to why they may have breached one of the conditions listed in Article 20 rrcd, the relevant Government authority would need to take these submissions into account when making their decision. 41 Mário Campolargo v Commission, Case T-372/00, 23 April 2002, para This is also in line with Article 12 rrcd which provides that Member States shall take appropriate measures to maintain as far as possible family unity as present within their territory 43 EASO, Annual Report on the situation of asylum in the EU 2012, p 18, see also ECRE, Not There Yet: An NGO Perspective on Challenges to a Fair and Effective Common European Asylum System, Asylum Information Database Annual Report 2012/2013 (hereinafter ECRE, Asylum Information Database, Annual Report 2012/2013, p Asylum Information Database, Country report Germany Statistics, Asylum Information Database, Country report Belgium Statistics, accessed August Article17 (2) rrcd provides that Member States shall ensure that material reception conditions provide an adequate standard of living for applicants, which guarantees their subsistence and protects their physical and mental health. 11

12 Article 22 rrcd, Assessment of the special reception needs of vulnerable persons Article 22 (1) rrcd imposes an obligation on Member States to assess whether an applicant is a vulnerable person and if so, whether they have special needs and the nature of such needs. It provides that this assessment shall be carried out within a reasonable period of time after an application for international protection is made. Article 22 (2) provides that the assessment need not take the form of an administrative procedure. The right to be heard applies in such an instance, as it applies in all proceedings which are liable to adversely affect the person, even where the applicable legislation does not expressly provide for such a procedure. 46 Therefore the applicant could submit observations as to why they should benefit from special reception conditions which would need to be taken into account when Member States are carrying out the assessment The duty to state the reasons The duty to state the reasons for a decision forms part of Article 41 (2) of the Charter. This duty is not only applicable to EU institutions; it is also applicable to national authorities when they are taking a decision on the basis of EU legislation. 47 One of the principle reasons for this obligation is that, when it is a question as to whether a fundamental right was breached, it allows the appellant to defend that right under the best possible conditions and have the possibility of deciding, with full knowledge of the relevant facts, whether there is any point in applying to the courts. Consequently, in such circumstances the competent national authority is under a duty to inform them of the reasons on which its refusal (or approval) is based, either in the decision itself or in a subsequent communication made at their request. 48 Arguably, it is even more important if the party is not afforded the opportunity to be heard before the adoption of the initial decision. In such an instance, the duty to state the reasons is the only safeguard to ensure legal remedies are available to challenge the lawfulness of the decision. The standard for the statement of reasons is that it must enable a court to review the decision. 49 The relevant decision-making body is not obliged to give reasons for every relevant fact or point of law. It is adequate to state the facts and legal considerations that are of importance in the context of that decision. In France v Commission, the Court found that the duty to state reasons: must be appraised by reference to the circumstances of each case, in particular the context of the measures in question, the nature of the reasons given and the interest which the addressees of the measure, or other parties to whom it is of direct and individual concern, may have in obtaining explanations. 50 In addition, the precision of the statement of the reasons for a decision needs to be balanced against the practical realities, the time and technical facilities available for making the decision. In MM v Minister for Justice, the Court considered that the obligation to state reasons for a decision which are sufficiently specific and concrete [ ] allow the person to understand why his application is being rejected is thus a corollary of the principle of respect for the rights of the defence. 51 The duty to state the reasons is also closely related to the right to be heard and the right to an effective remedy, if there are no reasons given, it is impossible to know whether you should access your rights under the right to an effective remedy. Where it may apply Article 7 RCD and Article 7 rrcd, Residence and freedom of movement Article 21 RCD and Article 26 rrcd provide that decisions relating to the residence and freedom of movement may be the subject of an appeal within the procedures laid down in national law. In order for the applicant to know whether or not they should defend any right, they need to know the reasons for a decision. Neither Article 21 RCD nor Article 26 rrcd specify which decisions relating to residence and 46 MM (n32) para CJEU, Case C-239/05, BVBA Management, Training en Consultancy v Benelux-Merkenbureau, 15 February 2007, para Mellor (n31), para CJEU, Case T-228/02, Organisation des Modjahedines du peuple d Iran v Council of the European Union, 12 December 2006, para CJEU, Case C-17/99, French Republic v Commission of the European Communities, 21 March 2001, para MM (n32) para

13 freedom of movement may be subject to an appeal. Therefore, one can assume that it could apply to all decisions that can be taken under Article 7 RCD and Article 7 rrcd, namely decisions taken on where the resident should live, whether the provision of material reception conditions are subject to actual residence in a specific place, and a decision on whether a Member State should provide for the possibility of granting applicants temporary permission to leave the place of residence. In addition, Article 7 (5) RCD and Article 7 (4) rrcd state that decisions shall be taken individually, objectively and impartially and reasons shall be given if they are negative. The right to an effective remedy can only be realised if the person concerned is aware of the reasons underlying the negative decision, as a result, an appeal under Article 21 RCD or under 26 rrcd cannot be realised without specific reasons given for the original decision. It is submitted that under Article 7 RCD and under 7rRCD, and to take a specific provision, Article 7 (2), the national authority would not only need to take into account any representations made by the applicant as to where they should live (the right to be heard), but also address these. In addition, they should give reasons as to why they made the particular decision and address the issues raised by the applicant if observations were submitted. The decision would be of direct and individual concern to the applicant as it significantly impacts on their freedom of movement and their right to liberty in general. Moreover, if they refuse to grant an applicant temporary permission to leave, they would need to give specific reasons that are tailored to the individual in question as to why it was denied (rather than a generic refusal letter) in order for them to know how and if they should appeal the decision Article 9 rrcd, Guarantees for detained applicants Article 9 (4) rrcd states that detained applicants shall immediately be informed in writing [ ] of the reasons of the detention. Article 5 (2) ECHR provides that everyone who is arrested shall be informed promptly, in a language which he understands, of the reasons for his arrest and of any charge against him. The ECtHR found that any person who is arrested must be told, in simple, non-technical language that can be easily understood, the essential legal and factual grounds for the arrest, so as to be able, if he or she sees fit, to apply to a court to challenge its lawfulness in accordance with Article 5 (4). 52 In order to ensure that it complies with the duty to state the reasons, the decision must not list a generic reason; it must reference the specifics in the individual case. 53 An applicant can only be detained in accordance with the grounds set out under Article 8 rrcd. For example, if someone is detained in accordance with Article 8 (3) (b) so as to determine the reasons for their international protection application that could not be deduced in the absence of detention, in particular when there is a risk of absconding of the applicant, the order needs to address why the applicant is at risk of absconding. 54 A basic indication of the legal basis for the detention by itself is insufficient. 55 In addition, where the applicant has managed to infer the reason for detention, this does not absolve the state from directly giving the reasons as to why the applicant was in detention. 56 It is also essential that they are informed immediately as to why they are being detained. In Athary v Turkey 57, the Court found that there was a violation of Article 5 (1) ECHR because the applicant was not given a sufficient reason for his detention upon his arrest and only given a justifiable reason after he was held in detention for five days. 52 ECtHR, Abdolkhani and Karimnia v. Turkey, Application no /08, ECHR, 22 September paras Paola Casini v Commission, T-132/03, 15 September 2005, para In Organisation des Modjahedines du peuple d Iran (n49), the Court found The requirements to be satisfied by the statement of reasons depend on the circumstances of each case, in particular the content of the measure in question, the nature of the reasons given and the interest which the addressees of the measure, or other parties to whom it is of direct and individual concern, may have in obtaining explanations. It is not necessary for the statement of reasons to specify all the relevant matters of fact and law, since the question whether the statement of reasons meets the requirements of Article 253 EC must be assessed with regard not only to its wording but also to its context and to all the legal rules governing the matter in question. In particular, the reasons given for a decision are sufficient if it was adopted in circumstances known to the party concerned which enable him to understand the scope of the measure concerning him para ECtHR, Fox, Campbell and Hartley v. The United Kingdom, Application no /86; 12245/86; 12383/86, 30 August 1990, para ECtHR, Shamayev and Others v Georgia and Russia Application no /02, 12 April 2005, para ECtHR, Athary v Turkey, Application no /09, 11 March 2013, para

14 Article 16 RCD and Article 20 rrcd, Reduction or withdrawal of reception conditions Both the Reception Conditions Directive and the recast stipulate the conditions under which reception conditions can be reduced or withdrawn. 58 Both Directives provide that reasons shall be given when a decision is taken to reduce or (under the rrcd in exceptional and duly justified cases save from when the applicant has concealed financial resources) withdraw material conditions. It is essential that reasons are given as some of the provisions which allow for the reduction or withdrawal of material reception conditions could be considered as arbitrary and open to abuse. For example, Article 20 (2) rrcd provides that Member States may reduce reception conditions when they can establish that the applicant, for no justified reason, has not lodged an application as soon as reasonably practicable. There is no uniform standard as to what is considered reasonably practicable, which subjects the term to interpretation. Nevertheless, the decision must disclose in a clear and unequivocal fashion the reasoning followed by the institution which adopted the measure in question in such a way as to enable the persons concerned to ascertain the reasons for the measure and to enable the competent court to exercise its power of review of the lawfulness thereof Article 22 rrcd, Assessment of the special reception needs of vulnerable persons Member States are not under an obligation to set up a specific administrative procedure when assessing whether a vulnerable person has specific reception needs. Nevertheless, Member States are under an obligation to carry out the assessment. Given the fact that it does not need to take the form of an administrative procedure, an essential safeguard is the duty to state the reasons as to whether or not the person has special reception needs and what form they take. This is even more important as Member States need to ensure that those special reception needs are addressed if they become apparent at a later stage in the asylum procedure (Article 22 (1) rrcd) The right to good administration and non-compliance with the rules established by the relevant administration The right to good administration not only applies to EU institutions but also to Member States when applying EU law. 60 In addition, as it constitutes a general principle of EU law, Member States need to comply with it when adopting decisions which fall within the scope of EU law, even when there is no specific procedure in place. This principle also covers instances whereby a party to the proceedings would be penalised by virtue of the fact that they did not comply with procedural rules when this non-compliance arises from the behaviour of the administration itself. 61 Where it may apply Article 6 RCD and 6 rrcd, Documentation Both Article 6 RCD and Article 6 rrcd stipulate that Member States shall ensure that within three days of lodging an application for international protection, the applicant shall be provided with a document issued in their own name, certifying their status and stating that the applicant is allowed to stay on the territory of the Member State whilst their application is being examined. It is unclear whether the provision of certain services such as schooling, healthcare and access to employment are conditional on having the documentation. For example, Article 17 rrcd which provides for the general rules on material reception conditions and health care stipulates that Member States shall ensure that material reception conditions are available to applicants when they make their application for international protection. It may be that certain Member States require the document referred to in Article 6 to avail of these medical services. If the State does not issue this document in a timely manner or not at all, the applicant should not be penalised for this. If they are denied treatment on the basis of the lack of documentation as a result of the State s non-compliance with Article 6, there may be a breach of the right to 58 In the current Reception Directive the reasons are stated in Article 16, in the recast Reception Directive they are contained in Article Organisation des Modjahedines du peuple d Iran (n49), para Mellor (n31)para 33 So Article 41 of the Charter of Fundamental Rights does not just contain rules of good administration by the institutions but documents a general principle of law, which authorities of the Member States too must observe when applying Community law. 61 CJEU, Case C 428/05, Firma Laub GmbH & Co. Vieh & Fleisch Import-Export v Hauptzollamt Hamburg-Jonas, 21 June

15 good administration. The application of this principle precludes a national administration from penalising a party who were acting in good faith for non-compliance with the procedural rules, when this non-compliance arises from the behaviour of the administration itself Article 5 RCD and Article 5 rrcd The provision of information Both Article 5 RCD and Article 5 rrcd state that Member States shall inform applicants, within a reasonable time not exceeding fifteen days after they have lodged their application, of at least any established benefits and obligations that they must comply with. They shall also ensure that they are provided with information on organisations or groups of persons that provide specific legal assistance and organisations that might be able to help or inform them concerning the available reception conditions, including health care. Should a State fail to provide them with this information, the applicant should not be penalised for failing to comply with any obligations contained therein. The ECtHR examined this issue in MSS v Greece and Belgium. 63 It found that the brochure provided to asylum seekers did not contain any accommodation information and that the wording in the brochure regarding the obligation to report to the police to register one s address was ambiguous and could not be considered as sufficient information. As a result, the Court found that the applicant was not duly informed of the accommodation possibilities that were available to him. Therefore, should a Member State not provide clear and unambiguous information under Article 5, there may be a breach of Article 41 and an applicant for international protection cannot be penalised for any consequences arising from this omission Article 9 rrcd, Guarantees for detained applicants Article 9 provides a number of procedural guarantees for detained applicants. Article 9 (1) provides that administrative procedures relevant to the grounds for detention shall be executed with due diligence. It also states that delays in administrative procedures that cannot be attributed to the applicant shall not justify a continuation of detention. The administrative procedures referred to apply when assessing the applicant s identity, in determining elements on which the application for international protection is based or when carrying out a review to examine the applicant s right to enter the country. Recital 16 rrcd provides that the notion of due diligence requires at a minimum that Member States take concrete and meaningful steps to ensure that the time needed to verify the grounds of detention is as short as possible and that there is a real prospect that such verification can be carried out successfully in the shortest possible time. Detention shall not exceed the time reasonably needed to complete the relevant procedure. The concept of due diligence forms part of the right to good administration, the CJEU has looked at this principle in other areas of law. In TU München the Court found that the requirement to act with due diligence requires the relevant body to examine impartially and carefully all aspects of the applicants case. 64 In addition, the principle of due diligence obliges the relevant decision making body to take into consideration relevant submissions that could impact the outcome of the decision. It acts as a counterbalance to the discretionary powers of the relevant decision maker. 65 In the context of detention guarantees, due diligence is an important guarantee to ensure that the detention of asylum seekers is for the shortest possible time, and that it is interpreted in line with the necessity test that is explicitly required for the detention of asylum seekers (Article 8 (2)). It also requires that there is an ongoing assessment as to whether the grounds for detention as laid out in Article 8 (3) are still applicable and that the detention is reviewed whenever it is of prolonged duration, when relevant circumstances arise or when new information becomes available which may affect the lawfulness of detention (Article 9 (5)). It 62 Laub (n61), para ECtHR, M.S.S. v. Belgium and Greece, Application No /09, 21 January 2011, para CJEU, Case C-269/90, HauptzoUamt München-Mitte v Technische Universität München, 21 November See Reichel, Jane Between Supremacy and Autonomy in General Principles Of EC Law In A Process Of Development: Reports from a Conference in Stockholm, March 2007, pp and CJEU, Case C-16/90, Detlef Nolle v Hauptzollamt Bremen-Freihafen, 22 October 1991, para