RECOMMENDATIONS Human rights in (temporary) reception centres for asylum seekers and refugees 8 December 2015
1. Introduction Reason Due to the high influx of asylum seekers, very little space is available for newly arriving asylum seekers in the asylum seekers reception centres. In addition, only very few accepted refugees leave the reception centres. This has led to the establishment of temporary reception centres for the asylum seekers currently entering the country. So as to obtain an overview of these reception facilities and the access asylum seekers have to their human rights, the Netherlands Institute for Human Rights has visited seven reception sites. Purpose The purpose of these visits was to chart the extent to which the organisation of the reception facilities accords to human rights standards. The Institute realises that the high influx of asylum seekers necessitates implementing unorthodox measures. All recommendations are therefore to be interpreted within this context. The Institute has also considered a number of (proposed) measures directly related to reception and relief, like the facilities available to holders of a residence permit, the support base and civic integration. Implementation The Institute on 6, 13 and 27 November 2015 visited a total of seven different reception centres. 1 The Institute has visited crisis reception facilities, emergency reception facilities and regular reception facilities. The Institute during its visits investigated the human rights situation, like the access to medical care, education and accommodation. The Institute has also met with the Central Agency for the Reception of Asylum Seekers (COA) and the Association of Netherlands Municipalities (VNG). Findings The Institute is highly impressed with the way the COA endeavours to offer relief to all asylum seekers entering the Netherlands and with the willingness of all staff and volunteer workers to provide additional support. The Institute witnessed the same level of dedication from the officials and volunteers at those municipalities providing crisis relief. The Institute finds that the asylum seekers and refugees currently have sufficient access to basic facilities like accommodation, healthcare and food for adults. The human rights standards were, therefore, sufficiently guaranteed at the time of the visits. The Institute has, however, identified a number of issues as concerns. The health and safety of asylum seekers requires attention, as these could result in human rights violations in such cases where the stay at the crisis or emergency reception centre is extended. These issues include: - The lack of privacy; - The lack of structural ways to spend the day; - The lack of a living allowance; - The uncertainty about the duration of the procedure; - And the uncertainty on when family remaining behind are allowed to join the applicant. 1 Centres visited: Utrecht asylum seekers' centre, Jaarbeurs Utrecht emergency reception centre, Municipality of Woudenberg crisis reception centre, Almere asylum seekers' centre, Almere emergency reception centre, Zaanstad preliminary process reception location, The Hague emergency reception centre in the old Ministry of Social Affairs and Employment building. - 2 -
The Institute follows the recommendation made by the Inspectorate of Security and Justice in its review that, in connection with safeguarding security, quality of life and manageability, express attention should be given to the consequences of people staying in the temporary reception facilities for longer than was originally envisaged. 2 With respect to children, the Institute finds that not all their human rights are guaranteed in the crisis and emergency reception centres. For example, the fact that children are often transferred from one centre to the next negatively impacts their health. As a consequence, the human rights of children are compromised. In addition, the Institute has received signs that children at times are only able to attend school after weeks or even months have passed, their timely access to education thus sometimes being compromised. Finally, the Institute finds that the proposed measures to economise on the accommodation and social assistance provided to accepted refugees could be at odds with the ban on discrimination. Whether this will in fact be the case will depend on the actual elaboration of these measures. In addition, these measures erode the support base for refugees in need of protection. Both the central and local authorities have their own, specific duties to establish such a support base. As to the recommendations provided at the end of this note, the Institute is aware that they require additional funding and the making of choices on the allocation of vacant spots in the reception centres. Yet, the Institute considers it to be both necessary and possible to realise the recommendations in practice. 2. Findings 2.1 Crisis reception and emergency reception Crisis reception The high influx of asylum seekers required the establishment of crisis reception facilities. The responsibility for these facilities rests with the municipal authorities, who have turned spaces like sports halls and conference halls into reception facilities. Asylum seekers are provided with three meals a day and no living allowance. Crisis reception lasts for 72 hours and may be extended with another 72 hours. Once this term has expired, asylum seekers may be transferred to another crisis reception centre. Both single persons and families with children are accommodated in the crisis reception centres. There are no school facilities for children. The crisis reception centres feature access to basic medical care. The Institute found that no limits have been set to the number of times an asylum seeker can be placed in a crisis reception centre. During its visits, the Institute found that some asylum seekers have been transferred from one crisis reception centre to another multiple times. The Institute also found that no privacy exists at all in the crisis reception centres. The asylum seekers depend on initiatives launched by volunteers to have a way to spend their days. Access to basic medical care at the crisis reception centres is adequate. There was a high level of involvement and support from the inhabitants of the municipality in the centre visited by the Institute. They have donated goods like cribs and toys and arranged for facilities to allow the children to play. 2 Inspectorate of Security and Justice, "De tijdelijke (opvang)voorzieningen voor asylum seekers onder de loep", November 2015, p. 27. - 3 -
The asylum seekers' journey from their countries of origin has been difficult. They have travelled for up to months, or even years. Upon their arrival in the Netherlands, they require rest, stability and safety. The duty of the government to provide this forms the crux of their right to protection of their physical and mental integrity, as guaranteed by, inter alia, Article 12 ICESCR, Article 8 ECHR and Article 17(2) of the Reception Directive. Due to the living conditions in the crisis reception centres and the multiple transfers asylum seekers have to undergo in the Netherlands, they do not find themselves in a stable living environment. In addition, forced transfers may constitute a violation of Article 8 ECHR and should, therefore, take place as minimal as possible. 3 Together with the uncertainty about the duration of the asylum procedure and the time family reunification may be applied for, these aspects result in physical end mental health and safety risks when people are forced to stay in crisis reception centres for a longer term. The Institute is, therefore, very happy with the results of the Administrative Agreement on the Increased Influx of Asylum Seekers 4, which is based on the principle that crisis reception is neither desirable nor necessary in 2016. The Institute therefore assumes that, barring some exceptions, no more crisis reception facilities will need to be deployed in 2016 and that no recommendation needs to be made as concerns this topic. The Institute will continue to monitor the developments in this connection. Emergency reception The responsibility for emergency reception rests with the COA. Emergency reception facilities are established in locations like offices, sports halls and holiday villages. Following their stay in a crisis reception centre, the asylum seekers are placed in an emergency reception centre. Once their term for stay at an emergency reception centre has lapsed, they can be transferred to another emergency reception centre. Both single persons and families with children are accommodated in the emergency reception centres. Asylum seekers are provided with three meals a day and no living allowance, as their maintenance is provided in kind. As concerns having anything to do to spend their days, the asylum seekers mainly depend on the efforts of volunteers organising activities for them. Dutch compulsory education applies to the children, who are to be provided with schooling within 72 hours from their arrival in the Netherlands. Schooling is often provided at the emergency reception. The Asylum Seekers Health Centre (GC A) is responsible for providing medical care in the emergency reception centres. The Institute found that no maximum duration applies to the stay in an emergency reception centre. It discovered during meetings that asylum seekers are likely to spend at least six months in an emergency reception centre. Asylum seekers may be transferred between various emergency reception centres multiple times. No maximum applies to the number of transfers, either. Depending on the specific emergency reception centre, privacy can be (very) limited. No activities to spend the day are available at the emergency reception centres, which may have negative consequences, as it increases the passivity and isolation of the asylum seekers. 5 The Institute finds that, the longer the stay at an emergency reception centre, the higher the odds of health and safety risks arising. The Institute therefore recommends that the maximum duration of the stay in emergency reception centres should be limited to six months. 3 ECHR 10 July 2014, applications nos 3925/10, 3955/10, 3974/10, 4009/10, 4054/10, 4128/10, 4132/10 and 4133/10 (Lemo etc. v Croatia). 4 Administrative Agreement on the Increased Influx of Asylum Seekers, 27 November 2015, paragraph 2.1.2, available on: https://vng.nl/onderwerpenindex/asiel/asielbeleid-en-integratie/nieuws/gezamenlijke-aanpakproblemen-asielinstroom. 5 Advisory opinion "Verloren tijd" of the Advisory Committee on Migration Affairs, submitted to the State Secretary of Security and Justice, The Hague, 2013. - 4 -
As concerns the available facilities, the Institute notes that it is important that the asylum seekers are given their own responsibilities at an early stage and not remain dependent on others. By removing their options to make their own decisions and the ways for them to support themselves, asylum seekers are rendered dependent. It is, therefore, not desirable that they stay in emergency reception centres, without a structural way to spend their days and without a living allowance, for a longer term. 2.2 Children in the reception centres Transfers Children, too, are placed in crisis and emergency reception centres and are transferred often. Studies show that having to change accommodation often has a negative impact on children. The more often children are transferred between centres, the more cognitive and emotional problems they develop. 6 Studies also show that asylum seekers of minority age who are transferred more than once a year are 2.5 times as likely to develop mental and psychosomatic complaints as children who are transferred less often. This likelihood is even 3.5 times as large in the case of vulnerable children. 7 The Institute points out that, in view of the right to the enjoyment of the highest attainable standard of mental and physical health, as guaranteed by, inter alia, Article 12 ICESCR, the government has a duty to prevent any violations of this right that may be caused by transfers. Articles 3 and 6 of the Convention on the Rights of the Child, too, states that the interests of the child should be the primary consideration and that the basic needs of children for safety, continuity and stability should be met. The Reception Directive prescribes that governments prioritise placing children at a relief centre best able to meet their needs 8. The Institute therefore recommends that children, both those unaccompanied and those accompanied by their parents, are placed in small-scale centres, which are to be available for a longer term. In this fashion, the number of transfers can be minimised and the right of the children to sound health can be guaranteed. Education The Institute has ascertained that children have access to education in both the emergency and the regular reception centres. However, over the course of its various visits, the Institute has heard that in many cases a child was not able to start attending school within the prescribed term of 72 hours. The many transfers form one of the causes for this failure to keep to the term. In some cases, the delay in access to education lasts for only a few days, but in others it can take weeks, or even months. As long as the delay lasts for no more than a few days, the Institute does not believe this to constitute a violation of the right to an education, as laid down in, inter alia, Article 28 of the Convention on the Rights of the Child. A violation does occur when the delay lasts for longer. Processing the application for asylum In his letter of 19 October 2015 9, the State Secretary of Security and Justice announced that it might take more than a year for a decision to be made on an application for asylum 6 Stichting Kinderpostzegels Nederland, COA and UNICEF Netherlands, "Kind in het centrum: Kinderrechten in asielzoekerscentra", June 2009, p. 52. Children in asylum seekers' centres working group, "Ontheemd, de verhuizingen van asielzoekerskinderen in Nederland, January 2013. 7 S. Goosen, K. Stronks, A. Kunst, "Frequent relocations between asylum seekers centres are associated with mental distress in asylum seeker children: a longitudinal medical record study", in: International Journal of Epidemiology 2013. 8 European Reception Conditions Directive 2013/33, preamble, items 14 and 22. 9 State Secretary of Security and Justice, "Asiel in Nederland", 19 October 2015, no reference number. - 5 -
and that it can take a long time before it is clear whether the other members of the family are allowed to join the applicant. In his letter of 27 November 2015 10, the State Secretary announced that he was extending the period on coming to a decision on allowing family members to join the applicant from three to nine months. At present, applications for asylum are processed in the order of submission. As far as the Institute is aware, no further prioritisation takes place. The uncertainty many asylum seekers currently have concerning the time a decision is made about their application and that of their family members has consequences to their (mental) health. The fact that their family members might live in life-threatening circumstances elsewhere causes a lot of stress in asylum seekers here. This applies even more strongly to children. The Institute therefore believes it to be in the best interest of children for a decision to be made on their applications as quickly as possible and, should they have come to the Netherlands unaccompanied, for their parents to be able to join them as soon as possible. Article 10 of the Convention on the Rights of the Child prescribes that the government deals with applications for the purposes of family reunification in a positive, humane and expeditious manner. For this reason, the Institute recommends that the applications of children and their reuniting family members are given priority. 2.3 Facilities for residence permit holders On 14 October 2015, the House of Representatives agreed with the proposal of the People's Party for Freedom and Democracy and the Labour Party that the reception of holders of a residence permit was to be "austere but just". The proposal entails no longer having holders of a residence permit be given priority treatment when allocating social housing, placing them in semi-permanent houses and reducing their social assistance benefits, as their rent and health insurance premiums are paid in kind. This means they will also lose their entitlement to allowances. In addition, under the Administrative Agreement on the Increased Influx of Asylum Seekers, new housing will be set up in such a way that the costsharing standard would apply, resulting in further cutbacks in the social assistance benefits paid out. 11 The Institute objects to these austerity proposals, as they infringe upon the non-discrimination principle and in the long term do not contribute to the integration of refugees and maintaining a support base. Urgency under the Housing Allocation Act Article 21 of the Refugee Convention determines that States should accord to refugees, as concerns the allocation of housing, treatment as favourable as possible and, in any event, not less favourable than that accorded to aliens generally in the same circumstances. The Qualification Directive 12, too, prescribes that Member States should endeavour to provide refugees with equal access to housing. At present, holders of residence permit are, by virtue of Article 12(3) of the Housing Allocation Act, given priority treatment when allocating social housing. A proposal to amend the Act, seeking to delete the provision granting priority status, has been submitted. Should refugees no longer be given this "urgency" status, they will come to be listed on the bottom of the housing waiting list. For, in contrast to other persons seeking a house, refugees will have accrued no registration time. During the waiting period, these refugees will have to live in a reception centre or another emergency relief centre, blocking the advancement of residence permit holders from reception centre to municipal 10 State Secretary of Security and Justice, "Maatregelen hoge instroom asiel", 27 November 2015, reference no 708709. 11 Administrative Agreement on the Increased Influx of Asylum Seekers, 27 November 2015, paragraph 2.2.1. 12 Qualification Directive 2011/95/EU, Article 32. - 6 -
house even further. As a consequence, they will have to stay in emergency reception centres for an unnecessary long period of time, faced with all the human rights issues described in the above. Hence, the Institute strongly advises against adopting the proposed amendment of the Act. Cutbacks on social assistance benefits By virtue of Article 23 of the Refugee Convention and Article 29 of the Qualification Directive, refugees are to be accorded the same treatment with respect to public relief and assistance as is accorded to nationals. The paying in kind of some facilities and the cutting back on social assistance benefits for people sharing accommodation can be allowed in certain circumstances, as long as no distinction is made in this respect between refugees and nationals. However, if these austerity measures apply to refugees only, these measures violate the above-mentioned provisions. In addition, implementation of these measures might carry the risk of having the standard of living of the refugees become less than the adequate standard of living as guaranteed by, inter alia, Article 11 ICESCR. The Institute will closely monitor the developments in this field. Adverse effect of austerity on integration and support base In addition, the Institute points out that these proposals could have an adverse effect on the integration of refugees into society and, hence, on the support base for this group. The government acknowledges the importance of integration and is implementing measures to have it started up as early as possible. Integration is of primary importance in view of the high unemployment level amongst refugees. Refugees also experience discrimination when looking for a job. As a study by the Netherlands Institute for Social Research, employers 13 still prefer Mark to Mohammed. Integration is also important for maintaining a support base. The Institute therefore welcomes the proposals in the Administrative Agreement on the Increased Influx of Asylum Seekers to invest more vigorously in the social counselling of refugees. Cutting back on the facilities available to them, however, does not contribute to integration and maintaining a support base. For austerity leads to poverty and, in time, possibly even to isolation. This does not provide refugees with the improved starting position they need to make up for their disadvantage on the labour market. In addition, poverty and exclusion lead to health problems. 2.4 Civic integration of asylum seekers and residence permit holders During its visits, the Institute has paid specific attention to the opportunities available to refugees in the reception centres to work on their civic integration and improving their perspectives for the future, be it in the Netherlands or in their country of origin. The Institute not only investigated the availabilities open to holders of a residence permit - who, under the COA programme, already receive Dutch lessons and classes on Dutch society - but also those open to asylum seekers still awaiting the decision on their application. During their stay at the reception centre, they are able to attend Dutch language lessons offered by volunteers. Many of the asylum seekers, like the refugees from Syria, are likely to remain in the Netherlands for a long time. Due to the ever increasing application processing time, the Institute believes that it is in the best interest of both the asylum seekers and the government to start the integration in as early a stage as possible. This means that they should be provided with language classes, have their credentials evaluated and be allowed to familiarise themselves with the labour market. 13 Publication 2010/1 of the Netherlands Institute for Social Research Liever Mark dan Mohammed? Discriminatie op de arbeidsmarkt, Iris Andriessen, Eline Nievers, Laila Faulk, Jaco Dagevos, The Hague, Netherlands Institute for Social Research, January 2010. - 7 -
The Institute believes that the government has a duty of facilitating civic integration, not only of asylum seekers, but also of accepted refugees. For integration is a two-way street. Since the 2013 amendment of the Civic Integration Act, the government no longer plays a part in the civic integration course refugees are required to take. In view of the importance attached by the government to the integration and participation of refugees and of the size of the group of refugees currently settling in the Netherlands, the Institute recommends that the Minister of Social Affairs and Employment starts taking an active role again in the civic integration process. This role may involve the (partial) funding of the civic integration process - without the refugee having to take out a loan and, thus, to start out with a debt - and the provision of intensive counselling over the course of the process, as used to be provided by the municipalities. The benefits will be reaped, not only by the refugee, but also by the government. For the completion of a civic integration course increases the odds of participation in society and landing a job. 2.5 Support base The (proposed) measures referred to in this note partly arise from the desire by the central and local authorities to maintain a support base for refugees and asylum seekers amongst society at large. This desire has also been referred to time and again in the meetings the Institute had over the past period. Municipalities for instance, in determining how many asylum seekers they can take in, take the feelings of the local residents into account. The government is cutting back on the facilities it makes available to holders of a residence permit, so as to maintain a support base amongst citizens in similarly distressing situations. The Institute understands the desire by the government to consider the feelings of all involved parties as much as possible when implementing measures. However, the Institute does feel it needs to point out that such considerations may not impact the human rights of asylum seekers and residence permit holders. Should 14 asylum seekers come to be out on the streets due to municipalities deciding to offer fewer reception accommodations than are available, such may constitute a human rights violation. The same goes for cutting back the standard of the facilities on offer to such an extent that holders of a residence permit are worse off than Dutch nationals in a similar situation. Should the human rights of this group of people be threatened, it is up to the government to do everything in its power to protect these human rights, even if this may cause discontent amongst others. Unless, of course, taking action would threaten the human rights possessed by those others. In such a case, it is up to the government to assess which are the more important interests. That having been said, the Institute has thus far not become aware of any case in which the reception of asylum seekers and refugees infringed the human rights of other citizens, like the right to a private life. 14 Examples include the right to the protection of one's private life, which also includes protection of one's physical and spiritual integrity (Article 8 ECHR) and the right to an adequate standard of living (Article 11 ICESCR). - 8 -
3. Recommendations In consideration of its aforementioned findings, the Institute has come to the following recommendations: Emergency reception; duration of stay and suitability of location 1. The Institute recommends that the State Secretary of Security and Justice to the extent possible limits the total duration of stay in emergency reception centres to six months, and to limit the number of transfers of asylum seekers, and especially of children, as much as possible. Children, both unaccompanied and accompanied by parents, are to be placed in small-scale locations suited to their needs and available to them for as long a term as possible, such to limit the number of transfers. 2. The Institute recommends that the Minister of Education, Culture and Science do everything in her power to have asylum seekers in reception centres go to school as soon as possible, so as to guarantee access to the right to an education. Processing asylum and reunification applications: prioritise children 3. In consideration of the (mental) health of children, the Institute recommends that the State Secretary of Security and Justice prioritise the applications for asylum submitted by children and the applications for reunification submitted by their parents. Facilities for residence permit holders: austerity measures and the ban on discrimination 4. The Institute recommends that the Minister for Housing and the Central Government Sector not delete the priority status granted to refugees under the Housing Allocation Act as concerns the allocation of social housing. For this deletion obstructs the outflow of refugees from the asylum seekers' centres and has them stay in emergency reception centres for longer than is strictly necessary. 5. In addition, the Institute recommends that the Minister of Social Affairs and Employment guarantee that refugees have access to a minimum level of facilities without making distinction between refugees and nationals. Civic integration: role played by the government 6. The Institute recommends that the Minister of Social Affairs and Employment start playing an active role in the civic integration process of refugees again. This role may involve the (partial) funding of the civic integration process - ensuring that refugees do not have to start out with a debt - and the provision of intensive counselling over the course of the process. The benefits will be reaped, not only by the refugee, but also by the government. For the completion of a civic integration course increases the odds of participation in society and landing a job. Support base and human rights 7. The Institute recommends that both the central and local authorities ensure that the human rights of asylum seekers and refugees are not infringed upon when implementing measures that are (partly) adopted to maintain the social support base. As important as maintaining this support base is, protecting human rights comes first. - 9 -