Proposal for a Directive of the European Parliament and of the Council laying down minimum standards for the reception of asylum seekers

COUNCIL OF THE EUROPEAN UNION

Brussels, 15 April 2009

Proposal for a Directive of the European Parliament and of the Council laying down minimum standards for the reception of asylum seekers (recast)

With a view to the above-mentioned Working Party, delegations will find below compromise suggestions drafted by the Presidency.

N.B. New text is indicated in bold and by underlining the insertion and including it within Council tags: Ü Û;

Deleted text is indicated within underlined square brackets as follows: Ü […] Û.

ê 2003/9/EC

2008/0244 (COD)

Proposal for a

DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL

laying down minimum standards for the reception of asylum seekers

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty establishing the European Community, and in particular point (1) (b) of the first subparagraph of Article 63 thereof,

Having regard to the proposal from the Commission,

Having regard to the opinion of the European Economic and Social Committee [1],

Having regard to the opinion of the Committee of the Regions [2],

Acting in accordance with the procedure laid down in Article 251 of the Treaty [3],

Whereas:

ò new

A number of substantive changes are to be made to Council Directive 2003/9/EC of 27 January 2003 laying down minimum standards for the reception of asylum seekers [4]. In the interests of clarity, that Directive should be recast.

ê 2003/9/EC recital 1

A common policy on asylum, including a Common European Asylum System, is a constituent part of the European Union’s objective of progressively establishing an area of freedom, security and justice open to those who, forced by circumstances, legitimately seek protection in the Community.

ê 2003/9/EC recital 2

At its special meeting in Tampere on 15 and 16 October 1999, the European Council agreed to work towards establishing a Common European Asylum System, based on the full and inclusive application of the Geneva Convention relating to the Status of Refugees of 28 July 1951, as supplemented by the New York Protocol of 31 January 1967, thus maintaining the principle of non-refoulement.

ê 2003/9/EC recital 3

The Tampere Conclusions provide that a Common European Asylum System should include, in the short term, common minimum conditions of reception of asylum seekers.

ê 2003/9/EC recital 4

The establishment of minimum standards for the reception of asylum seekers is a further step towards a European asylum policy.

ò new

The first phase in the creation of a Common European Asylum System that should lead, in the longer term, to a common procedure and a uniform status, valid throughout the Union, for those granted asylum, has now been achieved. The European Council of 4 November 2004 adopted The Hague Programme which sets the objectives to be implemented in the area of freedom, security and justice in the period 2005-2010. In this respect The Hague Programme invited the European Commission to conclude the evaluation of the first phase legal instruments and to submit the second-phase instruments and measures to the Council and the European Parliament with a view to their adoption before 2010.

In the light of the results of the evaluations undertaken, it is appropriate, at this stage, to confirm the principles underlying Directive 2003/9/EC with a view to ensuring improved reception conditions for asylum seekers.

In order to ensure equal treatment of asylum seekers throughout the Union, this Directive should apply during all stages and types of procedures concerning applications for international protection and in all locations and facilities hosting asylum seekers.

Member States should seek to ensure full compliance with the principles of the best interests of the child and the importance of family unity, in the application of this Directive, in line with the 1989 United Nations Convention on the Rights of the Child and the European Convention for the Protection of Human Rights and Fundamental Freedoms respectively.

ê 2003/9/EC recital 6

With respect to the treatment of persons falling within the scope of this Directive, Member States are bound by obligations under instruments of international law to which they are party and which prohibit discrimination.

ê 2003/9/EC recital 7

ð new

Minimum standards for the reception of asylum seekers that will normally suffice to ensure them a dignified standard of living and comparable living conditions in all Member States ð taking into consideration the level of social assistance available for nationals in the hosting Member State,ï should be laid down,.

ê 2003/9/EC recital 8

The harmonisation of conditions for the reception of asylum seekers should help to limit the secondary movements of asylum seekers influenced by the variety of conditions for their reception.

ò new

In view of ensuring equal treatment amongst all applicants for international protection as well as in order to guarantee consistency with current EU asylum acquis, in particular with Council Directive 2004/83/EC of 29 April 2004 on minimum standards for the qualification and status of third country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted [5], it is appropriate to extend the scope of this Directive in order to include applicants for subsidiary protection.

ò new

In order to promote asylum-seekers’ self-sufficiency and to limit wide discrepancies between Member States, it is essential to provide clear rules on the access of asylum seekers to the labour market.

ê 2003/9/EC recital 9 (adapted)

ð new

ð The immediate identification and monitoring of personsï Reception of groups with special needs should be ð should be a primary concern of national authorities in order to ensure that their reception is ï specifically designed to meet those Ö their special Õ needs.

ò new

Detention of asylum seekers should be applied in line with the underlying principle that a person should not be held in detention for the sole reason that he/she is seeking international protection, notably in accordance with Article 31 of the Geneva Convention relating to the Status of Refugees of 28 July 1951. In particular Member States should not impose penalties on asylum seekers on account of illegal entry or presence and any restrictions to movement should be necessary. In this respect, detention of asylum seekers should only be possible under very clearly defined exceptional circumstances laid down in this Directive and subject to the principle of necessity and proportionality with regard both to the manner and to the purpose of such detention.Where an asylum seeker is held in detention he/she should have a right to a judicial remedy before national court.

ê 2003/9/EC recital 10 (adapted)

ð new

Reception of applicants Ö Applicants Õ who are in detention ð should be treated with full respect of human dignity and their reception ï should be specifically designed to meet their needs in that situation. ð In particular, Member States should ensure that Article 37 of the 1989 UN Convention on the Rights of the Child is applied.ï

ê 2003/9/EC recital 11

In order to ensure compliance with the minimum procedural guarantees consisting in the opportunity to contact organisations or groups of persons that provide legal assistance, information should be provided on such organisations and groups of persons.

ê 2003/9/EC recital 12 (adapted)

ð new

The possibility of abuse of the reception system should be restricted by laying down cases Ö specifying the circumstances in which Õ for the reduction or withdrawal of reception conditions for asylum seekers Ö may be reduced or such reception withdrawn Õð while at the same time ensuring a dignified standard of living for all asylum seekersï.

ê 2003/9/EC recital 13

The efficiency of national reception systems and cooperation among Member States in the field of reception of asylum seekers should be secured.

ê 2003/9/EC recital 14

Appropriate coordination should be encouraged between the competent authorities as regards the reception of asylum seekers, and harmonious relationships between local communities and accommodation centres should therefore be promoted.

ê 2003/9/EC recital 15

It is in the very nature of minimum standards that Member States have the power to introduce or maintain more favourable provisions for third-country nationals and stateless persons who ask for international protection from a Member State.

ê 2003/9/EC recital 16

ð new

In this spirit, Member States are also invited to apply the provisions of this Directive in connection with procedures for deciding on applications for forms of protection other than that emanating from the Geneva Convention for third country nationals and stateless persons ð Directive 2004/83/ECï.

ê 2003/9/EC recital 17

The implementation of this Directive should be evaluated at regular intervals.

ê 2003/9/EC recital 18

Since the objectives of the proposed action, namely to establish minimum standards on the reception of asylum seekers in Member States, cannot be sufficiently achieved by the Member States and can therefore, by reason of the scale and effects of the proposed action, be better achieved by the Community, the Community may adopt measures in accordance with the principles of subsidiarity as set out in Article 5 of the Treaty. In accordance with the principle of proportionality, as set out in that Article, this Directive does not go beyond what is necessary in order to achieve those objectives.

ê 2003/9/EC recital 19 (adapted)

In accordance with Article 3 of the Protocol on the position of the United Kingdom and Ireland, annexed to the Treaty on European Union and to the Treaty establishing the European Community, the United Kingdom gave notice, by letter of 18 August 2001, of its wish to take part in the adoption and application of this Directive.

ê 2003/9/EC recital 20 (adapted)

In accordance with Article 1 of the said Protocol Ireland, is not participating in the adoption of this Directive. Consequently, and without prejudice to Article 4 of the aforementioned Protocol, the provisions of this Directive do not apply to Ireland.

ê 2003/9/EC recital 21 (adapted)

In accordance with Articles 1 and 2 of the Protocol on the position of Denmark, annexed to the Treaty on European Union and to the Treaty establishing the European Community, Denmark is not participating in the adoption of this Directive and is therefore neither bound by it nor subject to its application.

ê 2003/9/EC recital 5

ð new

This Directive respects the fundamental rights and observes the principles recognised in particular by the Charter of Fundamental Rights of the European Union. In particular, this Directive seeks to ensure full respect for human dignity and to promote the application of Articles 1 ð, 6, 7, ï and 18 ð, 24 and 47 ï of the said Charter ð and has to be implemented accordinglyï.

ò new

The obligation to transpose this Directive into national law should be confined to those provisions which represent a substantive change as compared with the earlier Directive. The obligation to transpose the provisions which are unchanged arises under the earlier Directive.

This Directive should be without prejudice to the obligations of the Member States relating to the time-limit for transposition into national law of the Directive set out in Annex II, Part B,

ê 2003/9/EC

HAVE ADOPTED THIS DIRECTIVE:

CHAPTER I

PURPOSE, DEFINITIONS AND SCOPE

Article 1

Purpose

The purpose of this Directive is to lay down minimum standards for the reception of asylum seekers in Member States.

Article 2

Definitions

For the purposes of this Directive:

(a) "Geneva Convention" shall mean the Convention of 28 July 1951 relating to the status of refugees, as amended by the New York Protocol of 31 January 1967;

(b) "application for asylum" shall mean the application made by a third-country national or a stateless person which can be understood as a request for international protection from a Member State, under the Geneva Convention. Any application for international protection is presumed to be an application for asylum unless a third-country national or a stateless person explicitly requests another kind of protection that can be applied for separately;

ò new

(a) "application for international protection" means an application for international protection as defined in Directive 2004/83/EC;

ê 2003/9/EC

ð new

(b)(c) "applicant" or "asylum seeker" shall means a third country national or a stateless person who has made an application for asylum ð international protection ïin respect of which a final decision has not yet been taken;

(c)(d) "family members" shall means, in so far as the family already existed in the country of origin, the following members of the applicant’s family who are present in the same Member State in relation to the application for asylum ð international protection ï:

(i) the spouse of the asylum seeker or his or her unmarried partner in a stable relationship, where the legislation or practice of the Member State concerned treats unmarried couples in a way comparable to married couples under its law relating to aliens;

(ii) the minor children of the couples referred to in point (i) or of the applicant, on condition that they are unmarried and dependent and regardless of whether they were born in or out of wedlock or adopted as defined under the national law;

ò new

Ü Council

(iii) the married minor children of couples referred to in point (i) or of the applicant, regardless of whether they were born in or out of wedlock or adopted as defined under the national law Ü and provided they are not accompanied by their spouse Û, where it is in their best interests to reside with the applicant;

(iv) the father, mother or Ü […] Û Ü another adult relative responsible for the applicant whether by law or by customÛ Ü […] Û , when the latter is a minor and unmarried, or when he/she is a minor and married Ü and not accompanied by his/her spouseÛ but it is in his/her best interests to reside with his/her father, mother or Ü another adult relative responsible for the applicant whether by law or by customÛ Ü […] Û ;

(v) the minor unmarried siblings of the applicant, when the latter is a minor and unmarried, or when the applicant or his/her siblings are minors and married Ü and not accompanied by his/her spouse Û but it is in the best interests of one or more of them that they reside together Ü . Û Ü […] Û

ê 2003/9/EC

(e)"refugee" shall mean a person who fulfils the requirements of Article 1(A) of the Geneva Convention;

(f)"refugee status" shall mean the status granted by a Member State to a person who is a refugee and is admitted as such to the territory of that Member State;

(d)(g) "procedures" and "appeals", shall means the procedures and appeals established by Member States in their national law;

ò new

(e) "minor" means a third-country national or stateless person below the age of 18 years;

ê 2003/9/EC (adapted)

ð new

Ü Council

(f)(h) "unaccompanied minors" shall means persons below the age of eighteen ð a minor ï who arrives in the territory of the Member States unaccompanied by an adult responsible for them him/her whether by law or by custom, and for as long as they are he/she is not effectively taken into the care of such a person; it shall includes a minors who is are left unaccompanied after they he/she has have entered the territory of Member States;

(g)(i) "reception conditions" shall means the full set of measures that Member States grant to asylum seeker in accordance with this Directive;

(h)(j) "material reception conditions" shall means the reception conditions that include housing, food and clothing provided in kind, or as financial allowances or in vouchers, ð or a combination of the three ï, and a daily expenses allowance;

(i)(k) "detention" shall means confinement of an asylum seeker by a Member State within a particular place, where the applicant is deprived of his or her freedom of movement;

(j)(l) "accommodation centre" shall means any place used for collective housing of asylum seekers.

Ü (k) "representative" means a person acting on behalf of an organisation representing the unaccompanied minor as legal guardian, a person acting on behalf of a national organisation which is responsible for the care and well-being of minors, or any other appropriate representation appointed to ensure his/her best interest. Û

Article 3

Scope

This Directive shall apply to all third country nationals and stateless persons who make an application for asylum ð international protection ïat the border, or in the territory, Ö including at the border Õ ð or in the transit zones, ï of a Member State, as long as they are allowed to remain on the territory as asylum seekers, as well as to family members, if they are covered by such application for asylum ð international protection ïaccording to the national law.

This Directive shall not apply in cases of requests for diplomatic or territorial asylum submitted to representations of Member States.

This Directive shall not apply when the provisions of Council Directive 2001/55/EC of 20 July 2001 on minimum standards for giving temporary protection in the event of a mass influx of displaced persons and on measures promoting a balance of efforts between Member States in receiving such persons and bearing the consequences thereof [6] are applied.

ê 2003/9/EC

ð new

Member States may decide to apply this Directive in connection with procedures for deciding on applications for kinds of protection other than that emanating from the Geneva Convention for third-country nationals or stateless persons who are found not to be refugees ð Directive 2004/83/EC. ï

ê 2003/9/EC

ð new

Article 4

More favourable provisions

Member States may introduce or retain more favourable provisions in the field of reception conditions for asylum seekers and other close relatives of the applicant who are present in the same Member State when they are dependent on him or for humanitarian reasons insofar as these provisions are compatible with this Directive.

CHAPTER II

GENERAL PROVISIONS ON RECEPTION CONDITIONS

Article 5

Information

Member States shall inform asylum seekers, within a reasonable time not exceeding fifteen days after they have lodged their application for asylum ð international protection ï with the competent authority, of at least any established benefits and of the obligations with which they must comply relating to reception conditions.

Member States shall ensure that applicants 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.

ê 2003/9/EC (adapted)

ðnew

Member States shall ensure that the information referred to in paragraph 1 is in writing and, as far as possible, in a language that the applicants may Ö are Õ reasonably be supposed to understand. Where appropriate, this information may also be supplied orally.

ê 2003/9/EC

Article 6

Documentation

Member States shall ensure that, within three days after an application is lodged with the competent authority, the applicant is provided with a document issued in his or her own name certifying his or her status as an asylum seeker or testifying that he or she is allowed to stay in the territory of the Member State while his or her application is pending or being examined.

ò new

Ü Council

Ü […] Û

ÜThis provision shall not interfere with the assertion of the applicants’ rights to which they are entitled under this Directive from the moment an application for international protection is lodged.Û

ê 2003/9/EC

ð new

Ü Council

If the holder is not free to move within all or a part of the territory of the Member State, the document shall also certify this fact.

Member States may exclude application of this Article when the asylum seeker is in detention and during the examination of an application for asylum ð international protection ï made at the border or within the context of a procedure to decide on the right of the applicant legally to enter the territory of a Member State. In specific cases, during the examination of an application for asylum ð international protection ï, Member States may provide applicants with other evidence equivalent to the document referred to in paragraph 1.

The document referred to in paragraph 1 need not certify the identity of the asylum seeker.

Member States shall adopt the necessary measures to provide asylum seekers with the document referred to in paragraph 1, which must be valid for as long as they are authorised to remain in the territory of the Member State concerned or at the border thereof.

Member States may provide asylum seekers with a travel document when serious humanitarian reasons arise that require their presence in another State.

Ü 6. Member States shall not impose any documentation or other administrative requirements on asylum seekers before granting the rights to which they are entitled under this Directive for the sole reason that they are applicants for international protection.Û

Article 7

Residence and freedom of movement

Asylum seekers may move freely within the territory of the host Member State or within an area assigned to them by that Member State. The assigned area shall not affect the unalienable sphere of private life and shall allow sufficient scope for guaranteeing access to all benefits under this Directive.

Member States may decide on the residence of the asylum seeker for reasons of public interest, public order or, when necessary, for the swift processing and effective monitoring of his or her application.

3. When it proves necessary, for example for legal reasons or reasons of public order, Member States may confine an applicant to a particular place in accordance with their national law.

43. Member States may make provision of the material reception conditions subject to actual residence by the applicants in a specific place, to be determined by the Member States. Such a decision, which may be of a general nature, shall be taken individually and established by national legislation.

54. Member States shall provide for the possibility of granting applicants temporary permission to leave the place of residence mentioned in paragraphs 2 and 43 and/or the assigned area mentioned in paragraph 1. Decisions shall be taken individually, objectively and impartially and reasons shall be given if they are negative.

The applicant shall not require permission to keep appointments with authorities and courts if his or her appearance is necessary.

65. Member States shall require applicants to inform the competent authorities of their current address and notify any change of address to such authorities as soon as possible.

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Ü Council

Article 8

Detention

Member States shall not hold a person in detention for the sole reason that he/she is an applicant for international protection in accordance with Council Directive 2005/85/EC. [7]

When it proves necessary and on the basis of an individual assessment of each case, Member States may detain an applicant to a particular place in accordance with national legislation, if other less coercive measures cannot be applied effectively.

Ü Without prejudice to Article 11 of this Directive and 27(2) of Regulation […/…/EC] [Dublin Regulation] Û Ü […] Û Ü anÛ applicant may only be detained to a particular place:

in order to determine, ascertain or verify his Ü/herÛ identity or nationality;

in order to determine the elements on which his Ü/herÛ application for asylum is based which in other circumstances could be lost;

in the context of a procedure, to decide on his Ü/herÛ right to enter the territory;

when protection of national security and public order so requires.

Ü […] Û

Member States shall ensure that rules dealing with alternatives to detention, such as regular reporting to the authorities, the deposit of a financial guarantee, or an obligation to stay at Ü […] Û Üan assigned areaÛ, are laid down in national legislation.

Article 9

Guarantees for detained asylum seekers

Detention shall be ordered for the shortest period possible. In particular detention pursuant to Article 8 (2) (a), (b) and (c) shall not exceed the time reasonably needed to fulfil the administrative procedures required in order to obtain information on the asylum seeker’s Üidentity orÛ nationality or on the elements on which his application is based or to carry out the relevant procedure with a view to deciding on his/her right to enter the territory.

Delays in the administrative procedure that cannot be attributed to the asylum seeker shall not justify a continuation of detention.

Detention shall be ordered by judicial Üor administrativeÛ authorities. Ü […] Û ÜWhen detention has beenÛ ordered by administrative authorities, Ü […] Û the detention order shall be confirmed by judicial authorities within 72 hours from the beginning of the detention. Where the judicial authority finds detention to be unlawful, or if there is no decision within 72 hours, the asylum seeker concerned shall be released immediately.

Detention shall be ordered in writing Ü […] Û ÜandÛ shall state the reasons in fact and in law on which it is based Ü. Û Ü […] Û

Detained asylum seekers shall immediately be informed of the reasons for detention Ü […] Û and the procedures laid down in national law for challenging the detention order, in a language they are reasonably supposed to understand.

Ü […] Û ÜDetentionÛ shall be reviewed by a judicial authority at reasonable intervals of time either on request by the asylum seeker concerned or ex officio.

Detention shall never be unduly prolonged.

Member States shall ensure access to legal assistance Ü […] Û in cases of Ü an appeal or review of theÛ detention ÜorderÛ that shall be free of charge where the asylum seeker cannot afford the costs involved Ü and insofar as it is necessary to ensure their effective access to justiceÛ.

ÜLegal assistance shall include at least the preparation of the required procedural documents and representation before the judicial authorities.Û

ÜLegal assistance may be restricted to legal advisors or counsellors specifically designated by national law to assist and represent asylum seekers.Û

Procedures for access to legal assistance Ü […] Û in such cases shall be laid down in national law.

Article 10

Conditions of detention

ÜDetention shall take place inÛ Ü […] Û specialised detention facilities.

Ü2. Û Asylum seekers in detention shall be kept separately from other third country nationals who have not lodged an application for international protection unless it is necessary to ensure family unity and the applicant consents thereto.

Ü […] Û

Ü 3. Member States shall ensure that family members, legal advisors or counsellors, and representatives of the United Nations High Commissioner for Refugees or of relevant non-governmental organisations recognised by the Member State concerned, have the possibility to communicate with applicants and access detention facilities for the purpose of assisting the said applicants. Limits on access may be imposed only on grounds relating to the security of the detention facilities and of the applicants in detention.Û

Ü 4. Û Ü […] Û Member States shall ensure that asylum seekers in detention are immediately provided with updated information on the rules which apply in the facility and set out their rights and obligations in a language they are reasonably supposed to understand.

Ü5. In duly justified cases and for a reasonable period which shall be as short as possible Member States may derogate from paragraphs 2 and 4 where the asylum applicant is detained in border posts or transit zones.Û

Article 11

Detention of vulnerable groups and persons with special needs

Minors shall not be detained unless it is in their best Ü […] Û ÜinterestsÛ , as prescribed in Article 22(2) and only after taking into consideration the findings of the individual examination of their situation in accordance with paragraph 5 of Article 11.

Ü […] Û

Where minors are detained they shall have the possibility to engage in leisure-activities, including play and recreational activities appropriate to their age.

Detained families shall be provided with separate accommodation guaranteeing adequate privacy.

Where female asylum seekers are detained Member States shall ensure that they are accommodated separately from male asylum seekers, unless these are family members and all concerned individuals consent thereto. ÜExceptions may also apply for the use of common spaces designed for recreational or social activities including the provision of meals.Û

Persons with special needs shall not be detained unless an individual examination of their situation by a qualified professional certifies that their health, including their mental health, and well-being, will not significantly deteriorate as a result of the detention.

Where persons with special needs are detained Member States shall ensure regular monitoring and adequate support.

Ü6. In duly justified cases and for a reasonable period that shall be as short as possible Member States may derogate from paragraphs 2, 3 and 4 where the asylum applicant is detained in border posts or transit zones, with the exception of cases referred to in Article 35 of the Directive 2005/85/EC.Û

ê 2003/9/EC

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Article 812

Families

Member States shall take appropriate measures to maintain as far as possible family unity as present within their territory, if applicants are provided with housing by the Member State concerned. Such measures shall be implemented with the asylum seeker’s agreement.

Article 913

Medical screening

Member States may require medical screening for applicants on public health grounds.

Article 1014

Schooling and education of minors

Member States shall grant to minor children of asylum seekers and to asylum seekers who are minors access to the education system under similar conditions as nationals of the host Member State for so long as an expulsion measure against them or their parents is not actually enforced. Such education may be provided in accommodation centres.

The Member State concerned may stipulate that such access must be confined to the State education system.

ÜThe Member State concerned may stipulate that such access must be confined to the State education system.Û

Minors shall be younger than the age of legal majority in the Member State in which the application for asylum was lodged or is being examined. Member States shall not withdraw secondary education for the sole reason that the minor has reached the age of majority.

Access to the education system shall not be postponed for more than three months from the date the application for asylum ð international protection ï was lodged by the minor or the minor’s parents. This period may be extended to one year where specific education is provided in order to facilitate access to the education system.

ò new

Preparatory classes, including language classes, aimed at facilitating the access of minors to the national education system, and/or specific education designed to assist their integration into that system, shall be provided where necessary.

ê 2003/9/EC

ð new

Where access to the education system as set out in paragraph 1 is not possible due to the specific situation of the minor, the Member State ð shall ï may offer other education arrangements ðin accordance with national law and practices ï.

Article 1115

Employment

1.Member States shall determine a period of time, starting from the date on which an application for asylum was lodged during which an applicant shall not have access to the labour market.

ò new

Member States shall ensure that applicants have access to the labour market no later than 6 months following the date when the application for international protection was lodged.

ê 2003/9/EC

ð new

If a decision at first instance has not been taken within one year of the presentation of an application for asylum and this delay cannot be attributed to the applicant, Member States shall decide the conditions for granting access to the labour market for the applicant, ð in accordance with their national legislation, without unduly restricting asylum seekers’ access to the labour market. ï

Access to the labour market shall not be withdrawn during appeals procedures, where an appeal against a negative decision in a regular procedure has suspensive effect, until such time as a negative decision on the appeal is notified.

Article 1216

Vocational training

Member States may allow asylum seekers access to vocational training irrespective of whether they have access to the labour market.

Access to vocational training relating to an employment contract shall depend on the extent to which the applicant has access to the labour market in accordance with Article 1115.

Article 1317

General rules on material reception conditions and health care

Member States shall ensure that material reception conditions are available to applicants when they make their application for asylum ð international protection ï

ê 2003/9/EC (adapted)

ð new

Member States shall Ö ensure that Õ make provisions on material reception conditions to ensure a Ö provide an adequate Õ standard of living Ö for applicants for international protection, which guarantees their subsistence and protects their physical and mental health Õ adequate for the health of applicants and capable of ensuring their subsistence.

ê 2003/9/EC

Member States shall ensure that that standard of living is met in the specific situation of persons who have special needs, in accordance with Article 1721, as well as in relation to the situation of persons who are in detention.

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 these basic needs were being covered, Member States may ask the asylum seeker for a refund.

5. 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 financial allowances or vouchers, the amount thereof shall be determined in accordance with the principles set out in this Article.

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Ü Council

Ü […] Û ÜIn view of ensuring that the total value of material reception conditions granted to asylum seekers is in line with the principle set out in paragraph 2, Member States shall take into consideration the amount of social assistance granted to nationals eligible for such assistance. Any differences to the disadvantage of asylum seekers shall be duly justified.Û

ê2003/9/EC

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Ü Council

Article 1418

Modalities for material reception conditions

Where housing is provided in kind, it should take one or a combination of the following forms:

premises used for the purpose of housing applicants during the examination of an application for asylum ð international protection ï lodged at the border Üor in transit zonesÛ ;

accommodation centres which guarantee an adequate standard of living;

private houses, flats, hotels or other premises adapted for housing applicants.

Member States shall ensure that applicants provided with the housing referred to in paragraph 1(a), (b) and (c) are assured:

protection of their family life;

the possibility of communicating with relatives, legal Ü […] Û Ü advisors or counsellors, Û Ü […] Û representatives of the United Nations High Commissioner for Refugees (UNHCR) and Üother relevant and competent national, international and non-governmental organisations and bodies.Û Ü […] Û

ò new

Member States shall take into consideration gender and age specific concerns and the situation of persons with special needs in relation to applicants within the premises and accommodation centers referred to in paragraph 1(a) and (b).

ê 2003/9/EC (adapted)

ð new

Member States shall Ö take appropriate measures to prevent Õ pay particular attention to the prevention of assault ð and gender based violence including sexual assault, ï within the premises and accommodation centres referred to in paragraph 1(a) and (b).

ê 2003/9/EC

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Ü Council

Member States shall ensure, if appropriate, that minor children of applicants or applicants who are minors are lodged with their parents or with the adult Ü […] Û ÜrelativeÛ responsible for them whether by law or by custom ð provided this is in the best interests of the minors concerned ï.

Member States shall ensure that transfers of applicants from one housing facility to another take place only when necessary. Member States shall provide for the possibility for applicants to inform their legal advisers of the transfer and of their new address.

Persons working in accommodation centres shall be adequately trained and shall be bound by the confidentiality principle as defined in the national law in relation to any information they obtain in the course of their work.

Member States may involve applicants in managing the material resources and non-material aspects of life in the centre through an advisory board or council representing residents.

Ü […] Û ÜFamily members, legalÛ advisors or counsellors of asylum seekers and representatives of the United Nations High Commissioner for Refugees or Üof relevantÛ non-governmental organisations Ü […] Û recognised by the Member State concerned shall be granted access to accommodation centres and other housing facilities in order to assist the said asylum seekers. Limits on such access may be imposed only on grounds relating to the security of the centres and facilities and of the asylum seekers.

ð In duly justified cases, ï Member States may exceptionally set modalities for material reception conditions different from those provided for in this Article, for a reasonable period which shall be as short as possible, when:

(a) -an initial assessment of the specific needs of the applicant is required,

 material reception conditions, as provided for in this Article, are not available in a certain geographical area,

(b) -housing capacities normally available are temporarily exhausted,

(c) -the asylum seeker is in detention or confined to border posts.

These different conditions shall cover in any case basic needs.

Article 1519

Health care

Member States shall ensure that applicants receive the necessary health care which shall include, at least, emergency care and essential treatment of illness ð Ü […] Û ÜincludingÛ mental disorders ï.

Member States shall provide necessary medical or other assistance to applicants who have special needs, ð including appropriate mental health care when needed, under the same conditions as nationals ï.

ê 2003/9/EC (adapted)

Ü Council

CHAPTER III

REDUCTION OR WITHDRAWAL OF Ö MATERIAL Õ RECEPTION CONDITIONS

Article 16 20

Reduction or withdrawal ofÖmaterialÕreception conditions

Member States may reduce Üor withdrawÛ or withdraw Ö material Õ reception conditions Ü in the following cases Û in the following cases:

(a) Ü (a) Û where an asylum seeker:

ê 2003/9/EC

Ü Council

Ü […] Û Ü (i)Û -abandons the place of residence determined by the competent authority without informing it or, if requested, without permission, or

Ü […] ÛÜ (ii) Û -does not comply with reporting duties or with requests to provide information or to appear for personal interviews concerning the asylum procedure during a reasonable period laid down in national law, or

Ü […] ÛÜ (iii) Û -has already lodged an application in the same Member State.

ê 2003/9/EC (adapted)

ð new

Ü Council

When the applicant is traced or voluntarily reports to the competent authority, a duly motivated decision, based on the reasons for the disappearance, shall be taken on the reinstallation of the grant of some or all of the Ö material Õ reception conditions Ü […] Û ;

(b) where an applicant has concealed financial resources and has therefore unduly benefited from material reception conditions.

Ü (b) where an applicant has concealed financial resources and has therefore unduly benefited from material reception conditions.Û

ò new

Ü […] Û

ê 2003/9/EC

If it transpires that an applicant had sufficient means to cover material reception conditions and health care at the time when these basic needs were being covered, Member States may ask the asylum seeker for a refund.

2. Member States may refuse conditions in cases where an asylum seeker has failed to demonstrate that the asylum claim was made as soon as reasonably practicable after arrival in that Member State.

ê 2003/9/EC

Member States may determine sanctions applicable to serious breaching of the rules of the accommodation centres as well as to seriously violent behaviour.

ê 2003/9/EC (adapted)

ð new

Ü Council

Decisions for reduction, Ö or Õ withdrawal or refusal of Ö material Õ reception conditions or sanctions referred to in paragraphs 1, 2 and 3 shall be taken individually, objectively and impartially and reasons shall be given. Decisions shall be based on the particular situation of the person concerned, especially with regard to persons covered by Article 1721, taking into account the principle of proportionality. Member States shall under all circumstances ensure ð subsistence, ï access to emergency health care ð and essential treatment of illness Ü […] Û ÜincludingÛ mental Ü […] Û ÜdisordersÛ ï.

ê 2003/9/EC

Ü Council

Member States shall ensure that material reception conditions are not withdrawn or reduced before a negative decision is taken.

CHAPTER IV

PROVISIONS FORÜVULNERABLE PERSONS AND Û PERSONS WITH SPECIAL NEEDS

ê 2003/9/EC (adapted)

ð new

Ü Council

Article 1721

General principle

Member States shall take into account the specific situation of Ü […] Û Vvulnerable persons such as minors, unaccompanied minors, disabled people, elderly people, pregnant women, single parents with minor children ð, victims of trafficking, persons with mental health problems ï and persons who have been subjected to torture, rape or other serious forms of psychological, physical or sexual violence Ü in the national legislation implementing this Directive.Û Ü […] Û in the national legislation implementing the provisions of Chapter II relating to material reception conditions and health care

ò new

Ü Council

Member States shall establish procedures in national legislation with a view to identifying Ü […] Û whether the applicant has special needs and indicating the nature of such needs.

Ü The identification procedure shall be initiated as soon as an application for international protection is lodged. ÛMember States shall ensure support for persons with special needs throughout the asylum procedure and shall provide for appropriate monitoring of their situation.

ê 2003/9/EC

ð new

Ü Council

2.Paragraph 1 shall apply only to persons found to have special needs after an individual evaluation of their situation.

Article 1822

Minors

Ü […] Ûð Member States shall ensure a standard of living adequate for the child’s physical, mental, spiritual, moral and social development. ï

Ü 2. The best interests of the child shall be a primary consideration for Member States when implementing the provisions of this Directive that involve minors. Û

ò new

Ü […] ÛIn assessing the best interests of the child, Member States shall in particular take due account of the following factors:

family reunification possibilities;

the minor’s well-being and social development, taking into particular consideration the minor’s ethnic, religious, cultural and linguistic background;

safety and security considerations, in particular where there is a risk of the child being a victim of trafficking;

the views of the minor in accordance with his/her age and maturity.

Member States shall ensure that minors have access to leisure-activities, including play and recreational activities appropriate to their age within the premises and accommodation centres referred to in Article 18 1(a) and (b).

ê 2003/9/EC

ð new

Ü Council

42 Member States shall ensure access to rehabilitation services for minors who have been victims of any form of abuse, neglect, exploitation, torture or cruel, inhuman and degrading treatment, or who have suffered from armed conflicts, and ensure that appropriate mental health care is developed and qualified counselling is provided when needed.

Article 1923

Unaccompanied minors

Member States shall as soon as possible take measures to ensure Ü that a representative represents and assists the unaccompanied minor with respect to his/her rights and obligations set out in this Directive. The representative shall be impartial and have the necessary expertise in the field of childcare in view of ensuring that the best interests of the unaccompanied minor are taken into consideration. Û Ü […] ÛRegular assessments shall be made by the appropriate authorities.

Unaccompanied minors who make an application for asylum ð international protection ïshall, from the moment they are admitted to the territory to the moment they are obliged to leave the host Member State in which the application for asylum ð international protection ï was made or is being examined, be placed:

with adult relatives;

with a foster-family;

in accommodation centres with special provisions for minors;

in other accommodation suitable for minors.

Member States may place unaccompanied minors aged 16 or over in accommodation centres for adult asylum seekers.

As far as possible, siblings shall be kept together, taking into account the best interests of the minor concerned and, in particular, his or her age and degree of maturity. Changes of residence of unaccompanied minors shall be limited to a minimum.

ê 2003/9/EC (adapted)

ð new

Ü Council

ð Member States shall establish procedures in national legislation for tracing the family members of unaccompanied minor. ï They Member States protecting the unaccompanied minor’s best interestshall endeavour ð start ï to trace the members of his or her Ö the unaccompanied minor’s Õ family as soon as possible ð after an application for international protection is lodged whilst protecting his/her best interest Ü s Û ï. In cases where there may be a threat to the life or integrity of the minor or his or her close relatives, particularly if they have remained in the country of origin, care must be taken to ensure that the collection, processing and circulation of information concerning those persons is undertaken on a confidential basis, so as to avoid jeopardizing their safety.

ê 2003/9/EC

ð new

Those working with unaccompanied minors shall have had ð and continue to ï or receive appropriate training concerning their needs, and shall be bound by the confidentiality principle as defined in the national law, in relation to any information they obtain in the course of their work.

Article 2024

Victims of torture and violence

1. Member States shall ensure that, if necessary, persons who have been subjected to torture, rape or other serious acts of violence receive the necessary treatment of damages caused by the aforementioned acts ð, in particular access to rehabilitation services that should allow for obtaining medical and psychological treatment ï.

ò new

Ü Council

2. Those working with victims of torture Ü and violence Ûshall have had and continue to receive appropriate training concerning their needs, and shall be bound by the confidentiality rules provided for in the relevant national law, in relation to any information they obtain in the course of their work.

ê 2003/9/EC (adapted)

ð new

CHAPTER V

APPEALS

Article 2125

Appeals

Member States shall ensure that negative decisions relating to the granting, ð withdrawal or reduction ï of benefits under this Directive or decisions taken under Article 7 which individually affect asylum seekers may be the subject of an appeal within the procedures laid down in the national law. At least in the last instance the possibility of an appeal or a review ð, in fact and in law, ï before a judicial body, shall be granted.

ò new

Ü Council

Member States shall ensure access to legal assistance Ü […] Ûin the cases referred to in paragraph 1. Such legal assistance Ü […] Û shall be free of charge where the asylum seeker cannot afford the costs involved Ü and insofar as it is necessary to ensure their effective access to justice.

Legal assistance shall include at least the preparation of the required procedural documents and representation before the judicial authorities.

Legal assistance may be restricted to legal advisors or counsellors specifically designated by national law to assist and represent asylum seekers Û.

ê 2003/9/EC

ð new

2.Procedures for access to legal assistance ð and/or representation ï in such cases shall be laid down in national law.

CHAPTER VI

ACTIONS TO IMPROVE THE EFFICIENCY OF THE RECEPTION SYSTEM

Article 22

Cooperation

Member States shall regularly inform the Commission on the data concerning the number of persons, broken down by sex and age, covered by reception conditions and provide full information on the type, name and format of the documents provided for by Article 6.

ò new

Article 26

Competent authorities

Each Member State shall notify the Commission of the identity of the authorities responsible for fulfilling the obligations arising under this Directive. Member States shall inform the Commission of any changes in the identity of such authorities.

ê 2003/9/EC

ð new

Article 2327

Guidance, monitoring and control system

1. Member States shall, with due respect to their constitutional structure, ð put in place relevant mechanisms in order to ï ensure that appropriate guidance, monitoring and control of the level of reception conditions are established.

ò new

Ü Council

2. Member States shall submit relevant information to the Commission in the form set out in Annex I on a yearly basis, starting from […]Ü . Û Ü […] Û

Ý

ê 2003/9/EC

ð new

Article 2428

Staff and resources

Member States shall take appropriate measures to ensure that authorities and other organisations implementing this Directive have received the necessary basic training with respect to the needs of both male and female applicants.

Member States shall allocate the necessary resources in connection with the national provisions enacted to implement this Directive.

CHAPTER VII

FINAL PROVISIONS

Article 2529

Reports

By 6 August 2006 ð […] at the latest ï, the Commission shall report to the European Parliament and the Council on the application of this Directive and shall propose any amendments that are necessary.

Member States shall send the Commission all the information that is appropriate for drawing up the report, including the statistical data provided for by Article 27(2) 22 by 6 February 2006 ð […] ï.

After presenting the report, the Commission shall report to the European Parliament and the Council on the application of this Directive at least every five years.

Article 26 30

Transposition

ê 2003/9/EC (adapted)

Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with this Directive by 6 February 2005Ö Articles […] [The articles which have been changed as to the substance by comparison with the earlier Directive] and Annex I by […] at the latest Õ. They shall forthwith inform Ö communicate to Õ the Commission thereofÖ the text of those provisions and a correlation table between those provisions and this Directive Õ.

When the Member States adopt these measures Ö those provisions Õ , they shall contain a reference to this Directive or shall be accompanied by such a reference on the occasion of their official publication. Member States shall determine how such a reference is to be made. Ö They shall also include a statement that references in existing laws, regulations and administrative provisions to the directive repealed by this Directive shall be construed as references to this Directive. Member States shall determine how such reference is to be made and how that statement is to be formulated. Õ

Member States shall communicate to the Commission the text of the Ö main Õ provisions of national law which they adopt in the field relating to the enforcement of Ö covered by Õ this Directive.

ê

Article 31

Repeal

Directive 2003/9/EC is repealed with effect from [day after the date set out in the first subparagraph of Article 30(1) of this Directive], without prejudice to the obligations of the Member States relating to the time-limit for transposition into national law of the Directive set out in Annex II, Part B.

References to the repealed Directive shall be construed as references to this Directive and shall be read in accordance with the correlation table in Annex III.

ê 2003/9/EC (adapted)

Article 2732

Entry into force

This Directive shall enter into force on the Ö twentieth Õ day Ö following that Õ of its publication in the Official Journal of the European Union.

Ö Articles [...] [The articles which are unchanged by comparison with the earlier Directive] and Annex I shall apply from [day after the date set out in the first subparagraph of Article 30(1)]. Õ

Article 2833

Addressees

This Directive is addressed to the Member States in accordance with the Treaty establishing the European Union.

Done at [...]

For the European Parliament

The President […]

For the Council

The President […]

ò new

ANNEX I

Reporting form on the information to be submitted by Member States on an annual basis, as required under Article 27(2) of Directive […/…/EC]

1. Indicate the total number of persons in your Member State currently covered by reception conditions as stipulated in Article 3(1) of Directive [.../…EC], broken down by sex and age. For each such person, indicate whether he or she is an applicant for asylum or a family member as defined in Article 2(c) of Directive […/…/EC].

2. On the basis of Article 21 of Directive [.../.../EC] please provide statistical data on the number of asylum seekers with special needs identified divided into the following groups of persons with special needs:

unaccompanied minors

disabled people

elderly people

pregnant women

single parents with minor children

persons who have been subjected to torture, rape or other serious forms of psychological, physical or sexual violence

victims of trafficking

persons with mental health problems

other (please explain)

3. Provide detailed information concerning the documents provided for in Article 6 of Directive [.../.../EC], including in particular the type, name and format of these documents.

4. With reference to Article 15 Directive [.../.../EC], indicate the total number of applicants for asylum in your Member State who have access to the labour market, as well as the total number who are currently employed, broken down by economic sector. To the extent that any particular conditions are attached to labour market access for asylum seekers, describe in detail such restrictions.

5. With reference to Article 17(5) Directive [.../…/EC], describe in detail the nature of material reception conditions, including their monetary value, and how they are provided (i.e. which material reception conditions are provided in kind, in money, in vouchers or in a combination of these elements) and indicate the level of the daily expenses allowance provided to asylum seekers.

6. With reference to Article 17(5) Directive [.../.../EC], indicate the types and amounts of social assistance available for asylum seekers; include in your reply points of reference with the minimum amount of social assistance made available by Member States for nationals requiring such assistance. To the extent that the social assistance available to asylum seekers differs from those available to nationals, explain the reasons for these differences.

ê

ANNEX II

Part A

Repealed Directive (referred to in Article 31) Council Directive 2003/9/EC (OJ L 31, 6.2.2003, p. 18) Part B

Time-limit for transposition into national law (referred to in Article 30) Directive Time-limit for transposition 2003/9/EC 6 February 2005

---

ANNEX III

Correlation Table Directive 2003/9/EC This Directive Article 1 Article 1 Article 2, introductory words Article 2, introductory words Article 2(a) to (c) Article 2(a) to (c) Article 2(d) introductory wording and points (i) and (ii) Article 2(d) introductory wording and points (i) and (ii)
  Article 2(c) points (iii), (iv) and (v) Article 2 (e) and (f) - Article 2 (g) Article 2 (g)
  Article 2(h) Article 2(h) Article 2(i) Article 2(i) Article 2(j) Article 2(j) Article 2(k) Article 2(k) Article 2(l) Article 2(l) Article 2(m) Article 3 Article 3 Article 4 Article 4 Article 5 Article 5 Article 6 (1) first subparagraph Article 6 (1) first subparagraph Article 6 (1) second subparagraph Article 6 (1) third subparagraph Article 6 (2) to (5) Article 6 (2) to 6 (5) Article 7(1) and (2) Article 7(1) and (2) Article 7(3) - Article 7(4) to (6) Article 7(3) to (5)
  Article 8
  Article 9
  Article 10
  Article 11 Article 8 Article 12 Article 9 Article 13 Article 10 (1) Article 14 (1) Article 10 (2) Article 14 (2) first subparagraph
  Article 14 (2) second subparagraph Article 10 (3) Article 14 (3) Article 11 (1) -
  Article 15 (1) Article 11 (2) Article 15 (2) Article 11 (3) Article 15 (3) Article 11 (4) - Article 12 Article 16 Article 13 (1) to (4) Article 17 (1) to (4) Article 13 (5) -
  Article 17 (5) Article 14 (1) Article 18 (1) Article 14 (2) introductory wording and first subparagraph Article 18 (2) introductory wording and first subparagraph
  Article 18 (2) second subparagraph Article 14 (2) second subparagraph Article 18 (2) third subparagraph Article 14 (3) to (7) Article 18 (3) to (7) Article 14 (8) introductory wording Article 18 (8) introductory wording Article 14 (8) first subparagraph first indent Article 18 (8) first subparagraph point (a) Article 14 (8) first subparagraph second indent - Article 14 (8) first subparagraph third and fourth intend Article 18 (8) first subparagraph point (b) and (c) Article 14 (8) second subparagraph Article 18 (8) second subparagraph Article 15 Article 19 Article 16 (1) introductory wording Article 20 (1) introductory wording Article 16 (1) (a) - Article 16 (1) (a) first, second and third indent Article 20 (1) point a, b and c Article 16 (1) (b) first subparagraph -
  Article 20 (2) first subparagraph Article 16 (1) (b) second subparagraph Article 20 (2) second subparagraph Article 16 (2) - Article 16 (3) to (5) Article 20 (3) to (5) Article 17 (1) Article 21 (1) first subparagraph Article 21 (1) second subparagraph Article 17 (2) -
  Article 21 (2) Article 18 (1) Article 22 (1)
  Article 22 (2) and (3) Article 18 (2) Article 22 (4) Article 19 Article 23 Article 20 Article 24 (1)
  Article 24 (2) Article 21 (1) Article 25 (1)
  Article 25 (2) first subparagraph Article 21 (2) Article 25 (2) second subparagraph Article 22 -
  Article 26 Article 23 Article 27 (1)
  Article 27 (2) Article 24 Article28 Article 25 Article 29 Article 26 Article 30
  Article 31 Article 27 Article 32 first subparagraph
  Article 32 second subparagraph Article 28 Article 33 – Annex I – Annex II
  Annex III