Can Fellow Member States Seize Asylum-Seekers’ Assets?
November 25, 2018
Edit
Kees Groenendijk (Professor Emeritus, Radboud University Nijmegen) in addition to Steve Peers
Baca Juga
In recent days, several European Union in addition to non-EU countries receive got been inward the intelligence for taking asylum-seekers' assets upon arrival. Is this compatible with European Union law? We examine foremost of all national practice, therefore the legislative history of the relevant European Union rules, therefore plough over our conclusions.
Denmark
In Nov 2015 the Danish authorities presented with a catalogue of 34 measures to discourage people from seeking asylum inward Denmark, to innovate the possibility to confiscate cash, jewellery in addition to other assets of asylum seekers inward other to brand them contribute inward the costs of their reception. They proposal caused heated scrap after a Minister suggested that marriage ceremony rings could live also confiscated. In Jan the Social-Democratic Party voiced that it would alone back upwards this proposal of the centre-right minority government, alone assets inward a higher house 1,340 euro could live confiscated. The novel law is to live voted on 26 January.
Similar practices or rules are to live found inward the national law of other Member States.
Switzerland, alone few asylum seekers concerned
According to Dutch newspapers, Swiss legislation requires asylum seekers who locomote inward the province with to a greater extent than than 1,000 Swiss francs receive got written report in addition to mitt over the surplus to the Swiss authorities. The dominion alone covers money, non other valuables such equally personal jewellery. Of the 45,000 asylum seekers coming to Switzerland inward 2015, alone 112 had to mitt inward a surplus, totalling roughly € 150,000 that year. Not actually an impressive amount. Most asylum seekers, apparently, produce non comport large amounts of money, ane time they brand it inward Western Europe. Besides, nether Swiss law beneficiaries of protection with income from employment, receive got to pay 10% of that income to contribute to reception costs during 10 years.
Germany, an old practice?
The German linguistic communication legislation on reception of asylum seekers, the Asylbewerberleistungsgesetz, provides, already several decades that asylum seekers tin live forced to contribute from their ain assets in addition to income to the toll of their reception. Asylum seekers receive got to declare their assets in addition to income. The rules for applicant for world social assistance are applicable. From the assets alone 200 euro in addition to the goods necessary for exercising a profession or work are exempted (§ 7(5) of the law). German linguistic communication national TV intelligence reported on 21 Jan 2016 that inward Bavaria asylum seekers were asked yesteryear the constabulary to mitt over their cash inward excess of €750. In Baden-Wurttemberg the threshold is €350. The federal law leaves room for departure inward application betwixt the Lander. H5N1 spokesman of the Baden-Wurttemberg minister of integration stated that although cash was taken from refugees inward private cases next constabulary spot-checks, searches are non carried out on every refugee. He was quoted equally maxim "In the context of a full general constabulary banking company check it was established that private refugees had cash with them" in addition to "Refugees are non beingness systematically searched for cash or valuables".
Netherlands, alone contributions from income non from assets
The Junior Minister for Immigration lately told the press that that he was non going to follow the Danish in addition to German linguistic communication illustration in addition to forcefulness asylum seekers to mitt over little amounts of cash in addition to jewellery. His spokesman explained this is non on the agenda correct now, since nosotros produce non await that it volition trim the influx.” (Volkrant 23 Jan 2016) Already for decades asylum seekers inward the Netherlands if lawfully employed (only possible after vi months in addition to until an asylum status is acquired for 24 weeks per twelvemonth only) receive got to pay the surplus inward a higher house 185 euro of his monthly income equally a contribution inward reception costs.
Compatible with European Union law?
Are such rules in addition to practices on seizure of assets inward lodge to contribute inward reception costs compatible with European Union law, in addition to peculiarly with the Reception Conditions Directive 2013/33? We produce non bargain hither with the inquiry whether such confiscation of valuables in addition to jewellery is compatible with Article 1 of the First Protocol in addition to Article 8 ECHR.
The relevant provisions are to live found inward Article 17(3) in addition to (4) of the 2013 recast Reception Conditions Directive, reading:
“3. Member United States of America may brand the provision of all or some of the cloth reception weather in addition to wellness aid bailiwick to the status that applicants produce non receive got sufficient way to receive got a criterion of living adequate for their wellness in addition to to enable their subsistence.
4. Member United States of America may require applicants to comprehend or contribute to the toll of the cloth reception weather in addition to of the wellness aid provided for inward this Directive, pursuant to the provision of paragraph 3, if the applicants receive got sufficient resources, for illustration if they receive got been working for a reasonable menses of time.
If it transpires that an applicant had sufficient way to comprehend cloth reception weather in addition to wellness aid at the fourth dimension when those basic needs were beingness covered, Member United States of America may inquire the applicant for a refund.”
Identical provisions were already nowadays inward Article 13(3) in addition to (4) of the original Reception Conditions Directive 2003/9. They returned unchanged inward the 2013 recast of the Directive. In lodge to sympathise those provisions it may live useful to receive got a small human face at their legislative history. The diverse drafts are laid out inward to a greater extent than particular inward the Annex, but nosotros volition summarise them here.
Legislative history of European Union rules on fiscal contributions yesteryear asylum seekers
The Commission inward its proposal for the master 2003 Directive (COM(2001)181) inserted an Article xix on fiscal contributions. Member United States of America could require applicants who tin afford to produce therefore to contribute to the toll of their cloth reception conditions. The relevant decisions should live taken individually, objectively in addition to impartially in addition to reasons shall live given. An effective judicial remedy against such decisions should live available, making explicit reference to Article 47 European Union Charter.
During the foremost negotiations on this Article reaction 8 Member United States of America made proposals for amendments. Six Member United States of America proposed to refer to “the full general regulation of the existent demand of the applicant, which would atomic number 82 to entitlement to cloth benefits” (document 11320/01, p. 33). FRG proposed that “some of the applicant's income should live protected inward all cases”. That proposal alone covered the asylum seeker’s income. But it implied that all the income inward a higher house a sure threshold could live seized yesteryear a Member State. Holland made a like proposal linking the asylum seeker’s contribution to his income: “if the applicant has a sure income, a contribution may live asked of him to comprehend some or all of the costs”. Both proposals intended to regulate a peradventure contribution inward reception costs, but did non include the asylum seekers’ assets equally an object of seizure.
In Jan 2002 the text of Article xix was consolidated with ii other Articles inward a novel Article 18, entitled ‘Financial way test’ (document 5300/02). The Dutch proposal, concerning contribution out of income from work was included. The German linguistic communication proposal, implying that a Member State could seize all income inward a higher house a sure fixed threshold, did non observe its way inward this in addition to afterwards versions of provisions on fiscal contributions yesteryear asylum seekers. During the negotiations inward Feb 2002 this Article was considerably shortened (a.o. replacing the full general way attempt out yesteryear the status that the applicants produce non receive got sufficient way to comprehend their basic needs, in addition to deleting the reference to income from employment) in addition to it was renumbered Article 17 (document 6253/02). Only 3 Member United States of America made suggestions: Portugal in addition to Hellenic Republic pleaded for to a greater extent than reduction of the reception conditions, ane time an asylum seeker or his household unit of measurement fellow member had been allowed access to the labour market. FRG proposed to integrate Article 17 inward the full general Article on cloth reception conditions.
Early March 2002, the Asylum Working Party examined the amended proposal based on drafting suggestions from the Castilian Presidency (document 6906/02). Parts of the onetime Article 17 were forthwith included inward Article 13, evidently next German linguistic communication suggestion.
In Apr 2002 on proposition of FRG the words “and wellness care” were added inward par. 3 of Article 13. Moreover, the words “for illustration if they receive got been working for a reasonable menses of time” were added inward par. 4, re-introducing an explicit link with participation inward the labour marketplace position ane time to a greater extent than (document 7802/02). This version of Article thirteen of the amended proposal was accepted yesteryear Coreper in addition to yesteryear the Council inward 2002 in addition to became part of the Directive adopted with unanimity on 27 Jan 2003.
In addition, the 2013 recast Directive forthwith states that Member United States of America tin spend upwards or withdraw benefits if asylum-seekers receive got ‘concealed fiscal resources’ (Article twenty of the 2013 Directive). The CJEU, inward its CIMADE in addition to GISTI judgment, has ruled that Article twenty sets out an exhaustive listing of grounds for reducing or withdrawing benefits.
Analysis
If this legislative history is combined with the full general principles of European Union law in addition to the European Union Charter, nosotros conclude:
(1) The number of fiscal contributions yesteryear asylum seekers inward cloth reception costs from their ain way was been discussed repeatedly during the negotiations on the Directive.
(2) This number was discussed repeatedly also inward relation to the access of asylum seekers to the labour marketplace position inward the Member State in addition to the income derived from such employment.
(3) The Directive allows Member United States of America to impose a way attempt out for access to cloth reception conditions, but this does non entail confiscation of assets.
(4) Since (a) the number of fiscal contributions yesteryear asylum seekers inward cloth reception costs is covered yesteryear the directive in addition to (b) the Directive sets out minimum standards inward lodge to avoid minute movements betwixt Member State (recitals vii in addition to 8), Member United States of America are non allowed to apply less favourable rules alone to a greater extent than favourable rules (see recital 15); the Court of Justice repeatedly held that Member United States of America cannot innovate other weather than those provided for inward the European Union Directive or Regulation, consider the judgments inward Ben Alaya, Koushkaki and Air Baltic. Also, yesteryear analogy with the CIMADE in addition to GISTI ruling, the grounds inward the Directive to spend upwards or regulate access to benefits are for sure exhaustive.
(5) Article 13(3) allows Member United States of America to brand the grant of cloth reception weather in addition to wellness aid bailiwick to the status that applicants produce non receive got sufficient way to receive got a criterion of living adequate for their wellness in addition to to enable their subsistence. It follows that such determination to exclude an asylum seeker from cloth reception weather tin alone live made after the Member State foremost has established that applicants receive got sufficient way to receive got a criterion of living adequate for their wellness in addition to to enable their subsistence inward the Member State. In accordance with the full general regulation of proportionality inward European Union law, it is questionable whether a Member State could spend upwards whatever access to the benefits system, only because an asylum-seeker has a little amount of cash or valuables. Access should alone live refused where the applicant either has an ongoing option source of funds, or the asylum-seeker has therefore much wealth that he or she could alive off it for a considerable menses of time.
(6) Article 13(4) allows Member United States of America to require applicants to contribute to the toll of the cloth reception weather in addition to of the wellness care, when the applicants receive got sufficient resources. The weather of paragraph 3 explicitly apply hither equally well. The Commission with regard to Article xix of its proposal rightly stated: “Decisions on applicants’ contribution should live taken individually, objectively in addition to impartially in addition to reasons must live given if they are negative inward lodge to brand possible their review equally accurate equally possible.”
While, inward the concluding version of the Directive this clause applies to the reduction or withdrawal of benefits, non the obligation to contribute toward costs, the full general principles of European Union law all the same require that national administrative decisions linked to European Union law must live fair (see the CJEU’s YS in addition to yard in addition to S ruling on asylum procedures, discussed here; in addition to the Mukarubega in addition to Boudjliba judgments on the render of irregular migrants, discussed here). This way that whatever determination on asylum-seekers’ contributions has to live an private determination giving reasons, taking into consideration the private province of affairs of each asylum seeker.
Such decisions must also comply with other full general principles of Union law, inward particular the regulation of proportionality, which way that whatever confiscation of belongings must live necessary to make a genuine authorities end. It is difficult to consider how it is necessary to confiscate belongings when a less severe stair out (delaying or curtailing produce goodness payments yesteryear an equivalent amount, inward accordance with the rules on a way test) could make the same objective. Again, the regulation suggests that asylum-seekers should alone live required to contribute where applicants either receive got an ongoing option source of funds, or receive got therefore much wealth that they could alive off it for a considerable menses of time.
It must also live possible to challenge whatever determination made yesteryear a national authorisation on confiscation, inward accordance with Article 47 (the correct to an effective remedy) of the European Union Charter of Fundamental Rights.
(7) In conclusion: a national dominion allowing authorities to confiscate all way of an asylum seeker inward a higher house a fixed amount, irrespective of the private circumstance on the grounds mentioned inward yell for iv in addition to 6 inward a higher house is non compatible with Union law.
(8) Of course, Kingdom of Denmark in addition to Switzerland are non saltation yesteryear the Directive, Kingdom of Denmark because of its opt-out in addition to Switzerland because it is non a Member State. Republic of Ireland opted out equally well. But all other Members State are saltation yesteryear Directive 2013/33 in addition to the Britain is opted inward in addition to is saltation yesteryear the master Reception Conditions Directive 2003/9.
*The paragraph on FRG was amended on 27th Jan 2016 to add together farther detail.
Barnard & Peers: chapter 26
Barnard & Peers: chapter 26
JHA4: chapter I:5
Photo: Danish constabulary officeholder in addition to asylum-seeker
Annex
Legislative history of Article 13(3) in addition to (4) of Directive 2003/9 = Article 17(3) in addition to (4) of Directive 2013/33 on fiscal contributions yesteryear asylum seekers inward reception costs
In the Commission’s proposal for the master 2003 Directive COM(2001)181 at that topographic point was a divide Article xix reading:
Article 19
Financial contribution
1. Member United States of America may require applicants who tin afford to produce therefore to contribute to the toll of
their cloth reception weather or to comprehend it. Decisions to render cloth reception
conditions non gratuitous of accuse shall live taken individually, objectively in addition to impartially and
reasons shall live given.
2. Member United States of America shall ensure that applicants receive got the correct to select proceedings earlier a courtroom against the decisions referred to inward paragraph 1 in addition to that they receive got access to legal assistance.
The Explanatory Memorandum to this Article xix read:
“This Article concerns the fiscal contribution applicants for asylum may live asked to
provide if they are provided with cloth reception conditions.
(1) This paragraph allows Member United States of America to require applicants who tin afford it to contribute
to the toll of their cloth reception conditions. The locomote is to consider the Council’s
concern regarding the requirement of “inadequate” resources of the applicants for
asylum. In whatever illustration Member United States of America should ensure that applicants for asylum receive got the
possibility of beingness housed equally fifty-fifty applicants with sufficient fiscal way powerfulness find
it impossible to observe suitable housing. Decisions on applicants’ contribution should be
taken individually, objectively in addition to impartially in addition to reasons must live given if they are
negative inward lodge to brand possible their review equally accurate equally possible.
(2) In conformity with the Charter of telephone commutation rights (Article 47) in addition to inward line of piece of work with the
case law of the Court of Justice, this paragraph ensures that the decisions taken according
to paragraph 1 tin live reviewed yesteryear a judicial trunk (including an administrative judicial
body such equally the Conseil d’Etat in France) at to the lowest degree inward the lastly instance.”
The foremost reaction of Member United States of America on this Article was inward document 11320/01, p. 33:
“D/E/NL/P/S in addition to UK: reference should live made to the full general regulation of the real
need of the applicant, which would atomic number 82 to entitlement to cloth benefits.
D: some of the applicant's income should live protected inward all cases.
NL: stipulate that if the applicant has a sure income, a contribution may live asked of him
to comprehend some or all of the costs.
D in addition to UK: constitute a full general regulation laying downward that Member United States of America may decide
whether or non the applicant requires cloth benefits.
L in addition to A: brand provision for the illustration inward which an applicant is invited to remain inward the territory
of a Member State yesteryear a national who, if applicable, has served equally guarantor for the purpose
of obtaining a tourist visa. In this case, it should live possible to telephone telephone on the national to
contribute to the costs.
A: reservation on the minute judgement inward that it creates an obligation to notify these
decisions inward writing.
3 A in addition to S: reservation on the fiscal aspects of legal assistance.
D in addition to UK: a full general provision on forms of appeal at the start of the Directive should
be sufficient.
In Jan 2002 the text of Article xix was consolidated inward a novel Article 18, consolidating several provisions of the proposal (document 5300/02):
“Article eighteen (consolidating Articles fourteen bis, 15(4) in addition to 19)
Financial way test
1. Member United States of America may brand the grant of all or some of the cloth reception conditions,
as good equally the requirement that applicants in addition to their accompanying household unit of measurement members
cover or contribute to the toll thereof, bailiwick to a fiscal way attempt out of applicants and
their accompanying household unit of measurement members inward accordance with the provisions of this Article.
2. Member United States of America may also trim or withdraw cloth reception weather inside a
reasonable menses after applicants or their accompanying household unit of measurement members commence an
employment activity inward accordance with Article 13, applying the attempt out established in
paragraph 1.
3. Applicants in addition to their accompanying household unit of measurement members may live bailiwick to ane or to a greater extent than of
the measures provided for inward paragraphs 1 in addition to 2 when it is confirmed that they have
sufficient means.
4. Decisions nether this Article shall live taken individually, objectively in addition to impartially and
reasons shall live given.”
In Feb 2002 this Article was considerably shortened (a.o. deleting the way attempt out in addition to the reference to income from employment) in addition to renumbered equally Article 17, reading together with the footnote yesteryear Member United States of America in addition to the Commission (document 6253/02):
“Article 17 (formerly 18)1
Financial way criteria
1. Member United States of America may brand the grant of all or some of the cloth reception weather bailiwick to the status that applicants produce non receive got sufficient way to comprehend their basic needs.
2. If it transpires that an applicant had sufficient way to comprehend these basic needs at the time
when cloth reception weather were beingness provided, therefore Member United States of America may inquire these
to refund.2
3. Decisions nether this Article shall live taken individually, objectively in addition to impartially and
reasons shall live given. 3
1 D : this provision should live placed at the destination of Article 15.
2 P, supported yesteryear EL, suggested adding the next :
"3. Member United States of America may also trim or withdraw cloth reception weather inside a
reasonable menses after applicants in addition to their accompanying household unit of measurement members receive got been
allowed access to the labour marketplace position inward accordance with Article 13, applying the test
established inward paragraph 1.
4. In the cases referred to inward paragraph 3, if they are non financially independent, Member
States shall grant them the nutrient allowance mentioned inward Article 8 in addition to access to basic
social care."
(present paragraph 3 would give-up the ghost 5).
3 Cion : reinsert a paragraph which was included inward 12839/01 ASILE 49 (former
Article 14A(6)) :
"Member United States of America shall ensure that earlier the decisions referred to inward paragraph 2 are notified to
the applicants for asylum [and their accompanying household unit of measurement members] the other Articles of
Chapter III of this Directive are applied".
At its coming together on v in addition to 6 March 2002, the Asylum Working Party examined the amended proposal based on drafting suggestions from the Castilian Presidency, document 6906/02. Parts of the onetime Article 17 were forthwith included inward Article 13, evidently next the proposition made earlier yesteryear FRG with regard to that onetime Article 17.
Article 13
General rules1
1. Member United States of America shall ensure that cloth reception weather are available to applicants when they brand their application.
2. Member United States of America shall brand provisions on cloth reception weather to ensure a criterion of living adequate for the wellness in addition to the well-being of applicants.
Member United States of America shall ensure that criterion of living is met inward the specific province of affairs of persons
who receive got special needs, inward accordance with Article 17, equally good equally inward relation to the province of affairs of
persons who are inward detention.
3. Member United States of America may brand the grant of all or some of the cloth reception weather bailiwick to the status that applicants produce non receive got sufficient way to receive got a criterion of living adequate for their wellness in addition to well-being.2
4. Member United States of America may require applicants to comprehend or contribute to the toll of the material
reception weather in addition to of the wellness aid provided for inward this Directive, pursuant to the
provision of paragraph 3, when the applicants receive got sufficient resources.
5. Material reception weather may live provided inward kind, or inward the cast of fiscal allowances or vouchers or inward a combination of these provisions.
Where Member United States of America render cloth reception weather inward the cast of allowances or
vouchers, their amount shall live laid inward accordance with the principles laid for inward this Article.
1 A : a full general dominion providing for exceptions to live applied yesteryear Member United States of America inward extraordinary
situations should live introduced.
2 B, D, F in addition to P : the term "well-being" is sec equally good vague in addition to should live defined.
NL, S, Britain : say "to enable their subsistence" instead of "to receive got a criterion of living adequate
for their wellness in addition to well-being".
In Apr 2002 on proposition of FRG the words “and wellness care” were added inward par. 3. Besides the words “for illustration if they receive got been working for a reasonable menses of time” were added inward par. 4, introducing an explicit link with participation inward the labour marketplace position ane time to a greater extent than (document 7802/02).
This version of Article thirteen of the amended proposal was accepted yesteryear Coreper in addition to yesteryear the Council. It became part of the Directive adopted on 27 Jan 2003
