Original published on EU LAW ANALYSIS (Sunday, 24 January 2016)
by Kees Groenendijk (Professor Emeritus, Radboud University Nijmegen) and Steve Peers
In recent days, several EU and non-EU countries have been in the news for taking asylum-seekers’ assets upon arrival. Is this compatible with EU law? We examine first of all national practice, then the legislative history of the relevant EU rules, then reach our conclusions.
In November 2015 the Danish government presented among a catalogue of 34 measures to discourage people from seeking asylum in Denmark, to introduce the possibility to confiscate cash, jewellery and other assets of asylum seekers in other to make them contribute in the costs of their reception. They proposal caused heated debate after a Minister suggested that wedding rings could be also confiscated. In January the Social-Democratic Party voiced that it would only support this proposal of the centre-right minority government, only assets above 1,340 euro could be confiscated. The new law is to be voted on 26 January.
Similar practices or rules are to be found in the national law of other Member States.
Switzerland, only few asylum seekers concerned
According to Dutch newspapers, Swiss legislation requires asylum seekers who enter the country with more than 1,000 Swiss francs have report and hand over the surplus to the Swiss authorities. The rule only covers money, not other valuables such as personal jewellery. Of the 45,000 asylum seekers coming to Switzerland in 2015, only 112 had to hand in a surplus, totalling around € 150,000 that year. Not really an impressive amount. Most asylum seekers, apparently, do not carry large amounts of money, once they arrive in Western Europe. Besides, under Swiss law beneficiaries of protection with income from employment, have to pay 10% of that income to contribute to reception costs during ten years.
Germany, an old practice?
The German legislation on reception of asylum seekers, theAsylbewerberleistungsgesetz, provides, already many decades that asylum seekers can be forced to contribute from their own assets and income to the cost of their reception. Asylum seekers have to declare their assets and income. The rules for applicant for public social assistance are applicable. From the assets only 200 euro and the goods necessary for exercising a profession or employment are exempted (§ 7(5) of the law). According to newspaper reports the actual application of the law may differ considerably between the Länder. In certain Länder or cities the police may search the luggage of asylum seekers in other places asylum seekers may just be asked to report about their assets.
Netherlands, only contributions from income not from assets
The Junior Minister for Immigration recently told the press that that he was not going to follow the Danish and German example and force asylum seekers to hand over small amounts of cash and jewellery. His spokesman explained this is not on the agenda right now, since we do not expect that it will reduce the influx.” (Volkrant 23 January 2016)Already for decades asylum seekers in the Netherlands if lawfully employed (only possible after six months and until an asylum status is acquired for 24 weeks per year only) have to pay the surplus above 185 euro of his monthly income as a contribution in reception costs.
Compatible with EU law?
Are such rules and practices on seizure of assets in order to contribute in reception costs compatible with EU law, and especially with the Reception Conditions Directive2013/33? We do not deal here with the question whether such confiscation of valuables and jewellery is compatible with Article 1 of the First Protocol and Article 8 ECHR.
The relevant provisions are to be found in Article 17(3) and (4) of the 2013 recast Reception Conditions Directive, reading:
“3. Member States may make the provision of all or some of the material reception conditions and health care subject to the condition that applicants do not have sufficient means to have a standard of living adequate for their health and to enable their subsistence.
- Member States may require applicants to cover or contribute to the cost of the material reception conditions and of the health care provided for in this Directive, pursuant to the provision of paragraph 3, if the applicants have sufficient resources, for example if they have been working for a reasonable period of time.
If it transpires that an applicant had sufficient means to cover material reception conditions and health care at the time when those basic needs were being covered, Member States may ask the applicant for a refund.”
Identical provisions were already present in Article 13(3) and (4) of the originalReception Conditions Directive 2003/9. They returned unchanged in the 2013 recast of the Directive. In order to understand those provisions it may be useful to have a short look at their legislative history. The various drafts are set out in more detail in the Annex, but we will summarise them here.
Legislative history of EU rules on financial contributions by asylum seekers
The Commission in its proposal for the original 2003 Directive (COM(2001)181) inserted an Article 19 on financial contributions. Member States could require applicants who can afford to do so to contribute to the cost of their material reception conditions. The relevant decisions should be taken individually, objectively and impartially and reasons shall be given. An effective judicial remedy against such decisions should be available, making explicit reference to Article 47 EU Charter.
During the first negotiations on this Article reaction eight Member States made proposals for amendments. Six Member States proposed to refer to “the general principle of the real need of the applicant, which would lead to entitlement to material benefits” (document 11320/01, p. 33). Germany proposed that “some of the applicant’s income should be protected in all cases”. That proposal only covered the asylum seeker’s income. But it implied that all the income above a certain threshold could be seized by a Member State. The Netherlands made a similar proposal linking the asylum seeker’s contribution to his income: “if the applicant has a certain income, a contribution may be asked of him to cover some or all of the costs”. Both proposals intended to regulate a possibly contribution in reception costs, but did not include the asylum seekers’ assets as an object of seizure.
In January 2002 the text of Article 19 was consolidated with two other Articles in a new Article 18, entitled ‘Financial means test’ (document 5300/02). The Dutch proposal, concerning contribution out of income from employment was included. The German proposal, implying that a Member State could seize all income above a certain fixed threshold, did not find its way in this and later versions of provisions on financial contributions by asylum seekers. During the negotiations in February 2002 this Article was considerably shortened (a.o. replacing the general means test by the condition that the applicants do not have sufficient means to cover their basic needs, and deleting the reference to income from employment) and it was renumbered Article 17 (document 6253/02). Only three Member States made suggestions: Portugal and Greece pleaded for more reduction of the reception conditions, once an asylum seeker or his family member had been allowed access to the labour market. Germany proposed to integrate Article 17 in the general Article on material reception conditions.
Early March 2002, the Asylum Working Party examined the amended proposal based on drafting suggestions from the Spanish Presidency (document 6906/02). Parts of the former Article 17 were now included in Article 13, apparently following German suggestion.
In April 2002 on suggestion of Germany the words “and health care” were added in par. 3 of Article 13. Moreover, the words “for example if they have been working for a reasonable period of time” were added in par. 4, re-introducing an explicit link with participation in the labour market again (document 7802/02). This version of Article 13 of the amended proposal was accepted by Coreper and by the Council in 2002 and became part of the Directive adopted with unanimity on 27 January 2003.
In addition, the 2013 recast Directive now states that Member States can refuse or withdraw benefits if asylum-seekers have ‘concealed financial resources’ (Article 20 of the 2013 Directive). The CJEU, in its CIMADE and GISTI judgment, has ruled that Article 20 sets out an exhaustive list of grounds for reducing or withdrawing benefits.
If this legislative history is combined with the general principles of EU law and the EU Charter, we conclude:
(1) The issue of financial contributions by asylum seekers in material reception costs from their own means was been discussed repeatedly during the negotiations on the Directive.
(2) This issue was discussed repeatedly also in relation to the access of asylum seekers to the labour market in the Member State and the income derived from such employment.
(3) The Directive allows Member States to impose a means test for access to material reception conditions, but this does not entail confiscation of assets.
(4) Since (a) the issue of financial contributions by asylum seekers in material reception costs is covered by the directive and (b) the Directive sets out minimum standards in order to avoid second movements between Member State (recitals 7 and 8), Member States are not allowed to apply less favourable rules only more favourable rules (see recital 15); the Court of Justice repeatedly held that Member States cannot introduce other conditions than those provided for in the EU Directive or Regulation, see the judgments in Ben Alaya, Koushkaki and Air Baltic. Also, by analogy with the CIMADE and GISTI ruling, the grounds in the Directive to refuse or regulate access to benefits are surely exhaustive.
(5) Article 13(3) allows Member States to make the grant of material reception conditions and health care subject to the condition that applicants do not have sufficient means to have a standard of living adequate for their health and to enable their subsistence. It follows that such decision to exclude an asylum seeker from material reception conditions can only be made after the Member State first has established that applicants have sufficient means to have a standard of living adequate for their health and to enable their subsistence in the Member State. In accordance with the general principle of proportionality in EU law, it is questionable whether a Member State could refuse any access to the benefits system, just because an asylum-seeker has a small amount of cash or valuables. Access should only be refused where the applicant either has an ongoing alternative source of funds, or the asylum-seeker has so much wealth that he or she could live off it for a considerable period of time.
(6) Article 13(4) allows Member States to require applicants to contribute to the cost of the material reception conditions and of the health care, when the applicants have sufficient resources. The conditions of paragraph 3 explicitly apply here as well. The Commission with regard to Article 19 of its proposal rightly stated: “Decisions on applicants’ contribution should be taken individually, objectively and impartially and reasons must be given if they are negative in order to make possible their review as accurate as possible.”
While, in the final version of the Directive this clause applies to the reduction or withdrawal of benefits, not the obligation to contribute toward costs, the general principles of EU law still require that national administrative decisions linked to EU law must be fair (see the CJEU’s YS and M and S ruling on asylum procedures, discussedhere; and the Mukarubega and Boudjliba judgments on the return of irregular migrants, discussed here). This means that any decision on asylum-seekers’ contributions has to be an individual decision giving reasons, taking into consideration the individual situation of each asylum seeker.
Such decisions must also comply with other general principles of Union law, in particular the principle of proportionality, which means that any confiscation of property must be necessary to achieve a genuine government end. It is hard to see how it is necessary to confiscate property when a less severe measure (delaying or curtailing benefit payments by an equivalent amount, in accordance with the rules on a means test) could achieve the same objective. Again, the principle suggests that asylum-seekers should only be required to contribute where applicants either have an ongoingalternative source of funds, or have so much wealth that they could live off it for a considerable period of time.
It must also be possible to challenge any decision made by a national authority on confiscation, in accordance with Article 47 (the right to an effective remedy) of the EU Charter of Fundamental Rights.
(7) In conclusion: a national rule allowing authorities to confiscate all means of an asylum seeker above a fixed amount, irrespective of the individual circumstance on the grounds mentioned in point 4 and 6 above is not compatible with Union law.
(8) Of course, Denmark and Switzerland are not bound by the Directive, Denmark because of its opt-out and Switzerland because it is not a Member State. Ireland opted out as well. But all other Members State are bound by Directive 2013/33 and the UK is opted in and is bound by the original Reception Conditions Directive 2003/9.
Barnard & Peers: chapter 26
JHA4: chapter I:5
Photo: Danish police officer and asylum-seeker
Photo credit: www.channelnewsasia.com
Legislative history of Article 13(3) and (4) of Directive 2003/9 = Article 17(3) and (4) of Directive 2013/33 on financial contributions by asylum seekers in reception costs
In the Commission’s proposal for the original 2003 Directive COM(2001)181 there was a separate Article 19 reading:
- Member States may require applicants who can afford to do so to contribute to the cost of
their material reception conditions or to cover it. Decisions to provide material reception conditions not free of charge shall be taken individually, objectively and impartially and reasons shall be given.
- Member States shall ensure that applicants have the right to bring proceedings before a court against the decisions referred to in paragraph 1 and that they have access to legal assistance.
The Explanatory Memorandum to this Article 19 read:
“This Article concerns the financial contribution applicants for asylum may be asked to provide if they are provided with material reception conditions.
(1) This paragraph allows Member States to require applicants who can afford it to contribute to the cost of their material reception conditions. The purpose is to meet the Council’s concern regarding the requirement of “inadequate” resources of the applicants for asylum. In any case Member States should ensure that applicants for asylum have the possibility of being housed as even applicants with sufficient financial means might find it impossible to find suitable housing. Decisions on applicants’ contribution should be taken individually, objectively and impartially and reasons must be given if they are negative in order to make possible their review as accurate as possible.
(2) In conformity with the Charter of fundamental rights (Article 47) and in line with the case law of the Court of Justice, this paragraph ensures that the decisions taken according to paragraph 1 can be reviewed by a judicial body (including an administrative judicial body such as the Conseil d’Etat in France) at least in the last instance.”
The first reaction of Member States on this Article was in document 11320/01, p. 33:
“D/E/NL/P/S and UK: reference should be made to the general principle of the real need of the applicant, which would lead to entitlement to material benefits.
D: some of the applicant’s income should be protected in all cases.
NL: stipulate that if the applicant has a certain income, a contribution may be asked of him to cover some or all of the costs.
D and UK: establish a general principle laying down that Member States may decide whether or not the applicant requires material benefits.
L and A: make provision for the case in which an applicant is invited to stay in the territory of a Member State by a national who, if applicable, has served as guarantor for the purpose of obtaining a tourist visa. In this case, it should be possible to call on the national to contribute to the costs.
A: reservation on the second sentence in that it creates an obligation to notify these decisions in writing.
3 A and S: reservation on the financial aspects of legal assistance.
D and UK: a general provision on forms of appeal at the beginning of the Directive should be sufficient.
In January 2002 the text of Article 19 was consolidated in a new Article 18, consolidating several provisions of the proposal (document 5300/02):
“Article 18 (consolidating Articles 14 bis, 15(4) and 19)
Financial means test
- Member States may make the grant of all or some of the material reception conditions,
as well as the requirement that applicants and their accompanying family memberscover or contribute to the cost thereof, subject to a financial means test of applicants andtheir accompanying family members in accordance with the provisions of this Article.
- Member States may also reduce or withdraw material reception conditions within a
reasonable period after applicants or their accompanying family members commence anemployment activity in accordance with Article 13, applying the test established inparagraph 1.
- Applicants and their accompanying family members may be subject to one or more of
the measures provided for in paragraphs 1 and 2 when it is confirmed that they havesufficient means.
- Decisions under this Article shall be taken individually, objectively and impartially and
reasons shall be given.”
In February 2002 this Article was considerably shortened (a.o. deleting the means test and the reference to income from employment) and renumbered as Article 17, reading together with the footnote by Member States and the Commission (document 6253/02):
“Article 17 (formerly 18)1
Financial means criteria
- Member States may make the grant of all or some of the material reception conditions subject to the condition that applicants do not have sufficient means to cover their basic needs.
- If it transpires that an applicant had sufficient means to cover these basic needs at the time
when material reception conditions were being provided, then Member States may ask these to refund.2
- Decisions under this Article shall be taken individually, objectively and impartially and
reasons shall be given. 3
1 D : this provision should be placed at the end of Article 15.
2 P, supported by EL, suggested adding the following :
“3. Member States may also reduce or withdraw material reception conditions within a reasonable period after applicants and their accompanying family members have been allowed access to the labour market in accordance with Article 13, applying the test established in paragraph 1.
- In the cases referred to in paragraph 3, if they are not financially independent, Member
States shall grant them the food allowance mentioned in Article 8 and access to basic social care.”
(present paragraph 3 would become 5).
3 Cion : reinsert a paragraph which was included in 12839/01 ASILE 49 (former Article 14A(6)) :
“Member States shall ensure that before the decisions referred to in paragraph 2 are notified to the applicants for asylum [and their accompanying family members] the other Articles of Chapter III of this Directive are applied”.
At its meeting on 5 and 6 March 2002, the Asylum Working Party examined the amended proposal based on drafting suggestions from the Spanish Presidency, document 6906/02. Parts of the former Article 17 were now included in Article 13, apparently following the suggestion made before by Germany with regard to that former Article 17.
- Member States shall ensure that material reception conditions are available to applicants when they make their application.
- Member States shall make provisions on material reception conditions to ensure a standard of living adequate for the health and the well-being of applicants.
Member States shall ensure that standard of living is met in the specific situation of persons who have special needs, in accordance with Article 17, as well as in relation to the situation of persons who are in detention.
- Member States may make the grant of all or some of the material reception conditions subject to the condition that applicants do not have sufficient means to have a standard of living adequate for their health and well-being.2
- Member States may require applicants to cover or contribute to the cost of the material
reception conditions and of the health care provided for in this Directive, pursuant to the provision of paragraph 3, when the applicants have sufficient resources.
- Material reception conditions may be provided in kind, or in the form of financial allowances or vouchers or in a combination of these provisions.
Where Member States provide material reception conditions in the form of allowances or vouchers, their amount shall be set in accordance with the principles set for in this Article.
1 A : a general rule providing for exceptions to be applied by Member States in extraordinary situations should be introduced.
2 B, D, F and P : the term “well-being” is s too vague and should be defined.
NL, S, UK : say “to enable their subsistence” instead of “to have a standard of living adequate for their health and well-being”.
In April 2002 on suggestion of Germany the words “and health care” were added in par. 3. Besides the words “for example if they have been working for a reasonable period of time” were added in par. 4, introducing an explicit link with participation in the labour market again (document 7802/02).
This version of Article 13 of the amended proposal was accepted by Coreper and by the Council. It became part of the Directive adopted on 27 January 2003