Destitute asylum seekers – what are member states’ obligations? Case Comment: Federaal Agentschap v Saciri (C-79/13)

Bianca Venkata

refugee

Photograph of a child asylum seeker in the Rixensart asylum seeker centre in Belgium

Facts

On 11 October 2010 the Saciri family applied for asylum in Belgium. The family consists of father Selver, mother Danijela and their three children, Danjel, Denis and Sanela.  At the same time as claiming asylum, the family applied for accommodation to the Belgian agency for asylum seeker reception (Fedasil). Fedasil informed the Saciri family that it did not have any available accommodation and referred it to obtain a financial allowance from the Belgian public centre for social welfare (OCMW). OCMW refused to provide the family with a financial allowance on the grounds that the family was not staying at Fedasil’s asylum reception centre. As a consequence, the family was denied both public asylum seeker accommodation and a financial allowance to rent in the private market.

The family commenced proceedings in the Leuven local labour court (Local Court). On 12 January 2011 the Local Court ordered Fedasil to provide the family with public accommodation. On 21 January 2011 Fedasil finally placed the family in public asylum seeker accommodation. By this time the family had spent more than three months, from the date of claiming asylum, without public accommodation or a sufficient financial allowance to rent privately. On 17 October 2011, the Local Court ordered Fedasil to pay the Saciri family EUR 2,961, representing three months of minimum guaranteed income. Fedasil appealed the judgment to the Brussels higher labour court (Higher Court).

Preliminary Reference

The Higher Labour Court referred three questions to the Court of Justice as preliminary references. The questions were:

  1. When a member state chooses to provide a financial allowance instead of accommodation is it bound by the requirements of articles 13 and 14 of Directive 2003/9/EC of 27 January 2003 (Directive)? In particular, should the financial allowance be sufficient to allow an asylum seeker to provide their own accommodation at all times?
  2. From when does the financial allowance need to be paid?
  3. Does the member state have to ensure compliance with the Directive when its asylum accommodation is full and it refers asylum seekers to other public agencies?

The Law

The Directive lays down minimum standards for the reception of asylum seekers. Recital 5 of the Directive stresses that full respect for human dignity as enshrined in the Charter of Fundamental Rights (Charter) should be ensured. Recital 7 states that the Directive should normally ensure asylum seekers a dignified standard of living and that comparable living conditions should be provided in member states.

Article 13 of the Directive requires member states to ensure:

  • that material reception conditions are available to applicants when they make their application for asylum (article 13(1)); and
  • a standard of living adequate for the health of applicants and capable of ensuring their subsistence. (article 13(2)).

Article 13(5) of the Directive states that:

“…where Member States provide material reception conditions in the form of financial allowances….the amount thereof shall be determined in accordance with the principles set out in this Article.”

Article 14 of the Directive imposes various conditions on member states when they provide accommodation to asylum seekers. This includes ensuring that minors are lodged with their parents (article 14(3)).

Belgium has transposed the Directive into its domestic law. Continue reading

Matrix seminar – EU law and immigration (part 2)

As promised on Friday, here is the second paper  from the recent Matrix seminar on EU law and immigration law at which Raza Husain QC and Aidan O’Neill QC spoke.  In it, Aidan discusses the current state of EU asylum and refugeee status law.  This is an area of some considerable controversy and litigation, both domestically and in the Luxembourg and Strasbourg courts.  Feel free to join in the debate by commenting below.