Below are my speaking notes for the European Database on Asylum Law (EDAL) conference, Reflections on the Current Application of the EU Asylum Acquis. My full paper can be accessed here: “Law, Dignity & Socio-Economic Rights: The Case of Asylum Seekers in Europe“. My very brief slides for this presentation are available here: Law Dignity & SER Asylum Seekers.
The treatment of aliens…has become a defining challenge to an important aspect of the moral identity of the emerging European polity and the process of European integration.
First of all, I would like to express my gratitude to Aoife and all at the European Database of Asylum Law for this invite, and congratulate EDAL and the Irish Refugee Council for such a stimulating and challenging conference over the last two days. All I can do over the next 15 or so minutes is present to you a skeleton of my arguments, as regards the protection of the socio-economic rights of asylum seekers. The full paper is available here: Law, Dignity and Socio-Economic Rights: The Case of Asylum Seekers in Europe.
My use of the terms ‘asylum seeker’ and socio-economic rights are deliberate. The phrase asylum seeker, properly communicates the process of fleeing for protection, but awaiting determination of the protection application within the receiving state. This includes application for recognition of refugee, subsidiary protection or other human rights protection status. The phrase socio-economic rights includes those human rights protected under international and European human rights law, that recognises the right to social security; right to work; right to an adequate standard of living; right to education; right to shelter etc. I shy away from the language of ‘reception conditions’, I feel that language seeks to separate ‘us’ and ‘them’ and seeks to make it seem wholly natural and automatic that fundamental social rights be differentiated on the basis of legal status.
The Core Argument
Now that we have definitions out of the way, the key argument of my paper is this: In spite of the plurality of legal regimes that protect, to some extent the socio-economic rights of asylum seekers, the end result of this legal plurality, has been to deny asylum seekers access to mainstream social supports that are considered fundamental to ensuring all those within a state can enjoy a minimum, if basic, standard of living.
WE might disagree as to whether citizenship or nationality or residence should form a coherent basis for distinguishing socio-economic rights between asylum seekers or citizens or other residents. However, international and European human rights law has not yet been so definitive, despite the exhaustive plurality of legal measures. In fact, as I will seek to now trace: the status of asylum seeker still seems to permit fundamental differentiation between asylum seekers and say citizens or residents. So, asylum seekers DO NOT under international and European human rights law enjoy all the rights that citizens or permitted residents in a State enjoy. However, given the cosmopolitan promise of human rights, contestations exist in this area, and the issue is not overly clear cut.
Legal Plurality & the Socio-Economic Rights of Asylum Seekers
International human rights law: While human rights seek to protect the weak, marginalised and vulnerable, there is often a presupposition amongst human rights lawyers, academics and activists that asylum seekers automatically have the same socio-economic rights as citizens and other residents. Indeed, a sole focus on the concluding observations and general comments of the Committee on the Rights of the Child, suggests that distinctions in treatment in the fields of health, social welfare and education, between citizen children and asylum seeking children are simply not permitted. However, the Committee on Economic, Social and Cultural Rights, have stated that differences of treatment in the enjoyment of socio-economic rights may be justified where these differences are reasonable, objective and proportionate. There exists, in the Committee’s examination of various States parties reports (as examples, see here, here and here) an inherent confusion as to whether differentiation is permitted, not permitted, or permitted under certain circumstances, as regards the socio-economic rights of asylum seekers. This confusion is also present due to the very different approaches of the UN Human Rights Committee, the Committee on the Elimination of Racial Discrimination and the Committee on the Elimination of Discrimination Against Women.
Council of Europe human rights law: Moving to the European level, and the approach of the Council of Europe, the European Convention on Human Rights, while somewhat protecting socio-economic rights, will not have an overly profound impact on the socio-economic rights of asylum seekers in Europe. Yes, the European Court of Human Rights has established that where laws are in place protection the socio-economic rights of asylum seekers, these laws must be enforced by the State. However, this (so far) is limited to the basic socio-economic rights established in the EU’s Reception Condition’s Directive. Unlike in the UK’s House of Lords (now Supreme Court) in the Limbuela case, the European Court of Human Rights has not found that destitution in and of itself will result in a finding that hunger, cold or lack of shelter will be inhuman or degrading. This is of particular relevance to Ireland and Denmark who are not bound by the EU’s Reception Condition’s Directive, as well as to states parties to the European Convention on Human Rights, who are not members of the European Union.
European Union human rights law: The Reception Conditions Directive and the successor Recast Reception Directive are unique, in that a very basic standard of living has been set down from those considered outside the European polity (asylum seekers). Some of the obligations under the Reception Directives include:
- Recognition of a right to a dignified standard of living;
- Highly circumscribed freedom of movement rights;
- The right to be provided with some form of shelter,
- Material reception conditions,
- A circumscribed right to education for children under 18;
- Protection of particularly vulnerable asylum seekers.
- A limited right to work.
As is evidenced from the progression of the proposals from 2008 to 2011, concerns about abuse of the asylum and protection system led to significant downgrading of core elements of socio-economic rights protection within the Recast reception Directive. In this regard, the European Parliament and Council of the European Union, were central in arguing for a less rights orientated and more punitive approach to material reception conditions for asylum seekers.
The Socio-Economic Rights of Asylum Seekers: From Legal Plurality to Clarity to Dignity?
International and European human rights law have attempted (albeit, in my view unsuccessfully) to protect the socio-economic rights of asylum seekers in Europe. The key method and efforts for seeking protection of the dignity, inherent worth and socio-economic rights for asylum seekers should be focused on domestic rights regime, with international rights mechanisms supplementing socio-economic rights protection for asylum seekers. The large degree of discretion that exists in relation to the socio-economic rights of asylum seekers suggests human rights law and standards of dignity and respect for the individual, which the Union seeks to embrace, is lacking when one speaks of the rights of the outsider. As Professor Colin Harvey noted in 2004:
[The]…humanitarian institution of asylum is now discussed as a threat and/or a security problem.
It is for this reason, that international and European human rights law and norms have failed to act as an effective bulwark against the differentiation and lowering of the socio-economic rights of asylum seekers.
 Weiler, J.H.H. “Thou shalt not oppress a stranger: On the judicial protection of human rights of non-EC nationals-A critique” (1992) 3 European Journal of International Law 65 at p.65.