The Reception of Asylum Seekers under International Law: Between Sovereignty and Equality

Description

Increasingly, European states are using policy on the reception of asylum seekers as an instrument of immigration control, eg by deterring the lodging of asylum applications, preventing integration into their societies and exercising a large degree of control over asylum seekers in order to facilitate expulsion. The European Union is currently engaged in a process of developing minimum conditions for the reception of asylum seekers, as part of a Common European Asylum System. This book critically examines the outcomes of the negotiation process on these minimum standards – Directive 2003/9/EC and Directive 2013/33/EU – in relation to international refugee law, international social security law and international human rights law. It presents a comprehensive analysis of state obligations that stem from these different fields of law with regard to asylum seekers' access to the labour market and social security benefits and compares them to the minimum standards developed in the European Union. To this end, it offers an in-depth study into the notion of non-discrimination on the basis of nationality in the field of social security and a detailed analysis of recent developments in the case law of the European Court on Human Rights on positive obligations in the socioeconomic sphere. It takes into account both the special characteristics of international legal obligations for states in the socioeconomic sphere and the legal consequences of the tentative legal status of asylum seekers. In addition, this book particularly examines how the instrumental use of social policy relates to international law. Cover Half-title Title Copyright Acknowledgements Contents Table of Cases 1 Introduction 1.1 Reception of Asylum Seekers in the European Union 1.2 Sovereignty and Equality 1.3 Aim and General Approach 1.4 Research Questions, Delimitations and Outline of the Book 1.5 Terminology 1.5.1 Asylum Seeker 1.5.2 Social Security 1.6 Sources 1.6.1 Sources of International Law 1.6.2 International Refugee Law, International Social Security Law and International Human Rights Law 1.6.3 The Charter of Fundamental Rights of the European Union 1.7 Method of Interpretation 1.7.1 Introduction 1.7.2 Rules of Interpretation 1.7.3 Authoritative Interpretations Judicial Decisions Legal Doctrine Views and Decisions of Treaty-monitoring Bodies 1.7.4 Summary Part I: Reception of Asylum Seekers in the European Union 2 EU Directives on Reception Conditions for Asylum Seekers 2.1 Introduction 2.2 Background: Reception of Asylum Seekers in EU Member States prior to Directive 2003/9/EC 2.3 Directive 2003/9/EC 2.3.1 Introduction 2.3.2 Realization of Directive 2003/9 2.3.3 Object and Purpose 2.3.4 Personal Scope Lodging or Making an Asylum Application No Final Decision Allowed to Remain on the Territory Concluding Remarks 2.3.5 Material Reception Conditions Text of the Directive Differences from the Commission Proposal 2.3.6 Health Care Text of the Directive Differences from the Commission Proposal 2.3.7 Access to the Labour Market Text of the Directive Differences from the Commission Proposal 2.3.8 Reduction and Withdrawal of Reception Conditions Text of the Directive Differences from the Commission Proposal 2.4 Directive 2013/33/EU 2.4.1 Introduction 2.4.2 Realization of Directive 2013/33 2.4.3 Object and Purpose 2.4.4 Personal Scope 2.4.5 Material Reception Conditions Text of the Directive Differences from the Commission Proposal 2.4.6 Health Care Text of the Directive Differences from the Commission Proposal 2.4.7 Access to the Labour Market Text of the Directive Differences from the Commission Proposal 2.4.8 Reduction and Withdrawal of Reception Conditions Text of the Directive Differences from the Commission Proposal 2.5 Concluding Remarks Part II: Equality of Treatment? 3 Introduction to Part II 3.1 Introduction 3.2 The Empty Character of the Principle of Equal Treatment 3.3 Open and Closed Methods 3.4 A Further Demarcation of the Scope of the Research 3.5 Ground of Discrimination 3.6 Relevant Charter Provisions 3.7 Structure of Part II 4 Equal Treatment under the Refugee Convention 4.1 Introduction 4.2 Personal Scope 4.3 Object and Purpose 4.4 Equal Treatment Regarding Wage-earning Employment and Social Security 4.5 Interpretation of the Various Qualifying Conditions 4.5.1 Introduction 4.5.2 Autonomous Meaning 4.5.3 The Meaning of ‘Refugee’ 4.5.4 The Meaning of ‘Lawful’ 4.6 Refugees ‘Lawfully in’ the Territory 4.7 Refugees ‘Residing’ in the Territory 4.8 Refugees ‘Lawfully Staying’ in the Territory 4.9 Concluding Remarks 5 International Social Security (Co-ordination) Law 5.1 Introduction 5.2 Contributory, Non-contributory and Social Assistance Schemes 5.3 Relevant ILO Conventions 5.3.1 Introduction 5.3.2 Convention no 102 on Social Security (Minimum Standards) Introduction Equal Treatment Ordinarily Resident Summary 5.3.3 Convention no 97 on Migration for Employment (Revised) 5.3.4 Convention no 118 on Equality of Treatment (Social Security) 5.3.5 Summary 5.4 Relevant Council of Europe Conventions 5.4.1 Introduction 5.4.2 European Interim Agreements on Social Security and the European Convention on Social Security 5.4.3 European Convention on Social and Medical Assistance Introduction Material Scope Equal Treatment Analysis 5.4.4 Summary 5.5 Concluding Remarks 6 Non-discrimination under International Human Rights Law 6.1 Introduction 6.2 International Covenant on Economic, Social and Cultural Rights 6.2.1 Text and Context 6.2.2 Application to Aliens 6.2.3 Interpretation 6.2.4 Analysis 6.3 European Convention on Human Rights 6.3.1 Text and Context 6.3.2 Application to Aliens 6.3.3 Interpretation Applicability of Article 14 Compliance with Article 14 6.3.4 Analysis 6.4 The European Social Charter 6.4.1 Text and Context 6.4.2 Application to Aliens Text of the Charter Approach of the European Committee on Social Rights Analysis Concluding Remarks 6.4.3 Interpretation 6.4.4 Summary 6.5 Concluding Remarks 7 Conclusions to Part II Part III: Full Sovereignty? 8 Introduction to Part III 8.1 Aims and Delimitations 8.2 Relevant Charter Provisions 8.3 Structure of Part III 9 Substantive Rights under the Refugee Convention 9.1 Introduction 9.2 Article 7: General Standard of Treatment and Exemption from Reciprocity 9.3 Article 13: Movable and Immovable Property 9.4 Article 17: Wage-earning Employment 9.5 Article 20: Rationing 9.6 Article 31(1): Freedom from Penalization for Illegal Entry 9.7 Article 33: Non-refoulement 9.8 Concluding Remarks 10 Justifications under the International Covenant on Economic, Social and Cultural Rights 10.1 Introduction 10.2 Nature of the Rights 10.3 Justifications 10.3.1 Introduction 10.3.2 Scope of the Limitation Provision 10.3.3 Relation to Article 2 of the ICESCR 10.3.4 ‘Determined by Law’ 10.3.5 ‘Compatible with the Nature of the Rights’ 10.3.6 ‘For the Purpose of Promoting the General Welfare in a Democratic Society’ 10.3.7 Additional (Inherent) Requirement of Proportionality? 10.3.8 Standard of Review 10.4 Analysis 10.5 Concluding Remarks 11 Positive Obligations under the European Convention on Human Rights 11.1 Introduction 11.2 Article 3 11.2.1 Introduction 11.2.2 State Responsibility 11.2.3 Minimum Level of Severity 11.2.4 Summary 11.3 Article 2 11.3.1 Introduction 11.3.2 Health Care 11.3.3 Basic Necessities of Life 11.3.4 Analysis and Concluding Remarks 11.4 Article 8 11.4.1 Introduction 11.4.2 Negative and Positive Obligations under Article 8 11.4.3 Case Law on Social and Economic Interests under Article 8 Health Care Housing Social Benefits 11.4.4 Asylum Seekers and Article 8 11.4.5 Analysis and Concluding Remarks 11.5 Case Law about Ending Entitlement to Social Security Benefits and Accommodation 11.5.1 Introduction 11.5.2 Article 8 11.5.3 Article 1 of the First Protocol 11.5.4 Concluding Remarks 11.6 Case Law on Access to the Labour Market 11.7 Analysis 11.7.1 Introduction 11.7.2 State Obligations to Provide Social Benefits 11.7.3 State Obligations if some Kind of Social Security is Provided to Asylum Seekers Quality of Living Conditions End or Change of Entitlement to Reception Benefits 11.7.4 Concluding Remarks 12 Article 18 of the European Social Charter (Revised) 12.1 Introduction 12.2 Personal Scope of Article 18 of the ESC 12.3 Substantive Meaning of Article 18 of the ESC 12.4 Concluding Remarks 13 Conclusions to Part III 14 Conclusions 14.1 Introduction 14.2 Reception of Asylum Seekers in the European Union 14.2.1 Convergence from the Outset and in External Appearance 14.2.2 Convergence in Official Discourse 14.2.3 Convergence in Standards Ultimately Adopted 14.3 Evaluation of the State Obligations Stemming from International Law 14.3.1 Introduction 14.3.2 Separation vs Convergence 14.3.3 Relevance of the Right at Stake 14.3.4 Relevance of Permitted Entry 14.3.5 Relevance of Being an Asylum Seeker 14.3.6 Relevance of Availability of Resources 14.3.7 Relevance of the Lapse of Time 14.3.8 Relevance of the Degree of Control Exercised over Asylum Seekers 14.3.9 Concluding Remarks 14.4 Assessment of the EU Reception Conditions Directives in Relation to International Law 14.4.1 Introduction 14.4.2 Access to Wage-earning Employment 14.4.3 Material Benefits 14.4.4 Health Care 14.4.5 Denial, Reduction and Withdrawal of Reception Benefits 14.4.6 State Obligations not Addressed by the EU Reception Conditions Directives 14.5 Concluding Remarks Bibliography Index