The Reception Conditions Directive was adopted in 2003 and transposed into UK law in January 2005. It provides for several rights to be made accessible for asylum-seekers while awaiting a decision on their application for international protection in the host country such as access to work, housing, education, healthcare and freedom of movement. In fact, Article 11 of the Reception Directive provides “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.”
According to the Secretary of State for the Home Department where asylum seekers make a second application for asylum after their first application has been rejected, they are not entitled to the benefits granted by the Reception Directive, including the right to work while awaiting the application’s outcome. The Secretary of State believes that “the potential for abuse of the system would be greatly increased”
if the Reception Directive applies to subsequent applications for asylum. The Secretary of State has pointed out, in that case, asylum seekers could “bring wholly unmeritorious claims with the aim of delaying their removal and gaining access to the benefits that the Reception Directive confers.”
However, the Supreme Court has recently dismissed the appeal of the Secretary of State.
The Supreme Court held that the Reception Directive can apply to second and subsequent applications for asylum. Hence, the Court concluded that
the Reception Directive applies to asylum seekers who has had an application for asylum in the UK rejected when they make a further application for asylum.
According to the Daily Telegraph “The Home Office estimates at least 45,000 people will be immediately affected by the ruling, mainly from the so-called legacy backlog of 450,000 asylum cases that date back to the mid-1990s but were never dealt with.”
The Daily Mail quotes Damian Green saying "This judgement will only have a short- term effect. The long delays in the asylum system will be resolved by the summer of next year when all the older asylum cases are concluded."
It is important to recall that the UK is not part of the Schengen agreement and it has an opt out from visas, asylum, immigration and judicial cooperation in civil matters. Nevertheless, the Labour Government has opted into to all proposals concerning asylum and almost all proposals concerning illegal migration. The decision of the former Government to opt into an EU common asylum system has further weakened the UK’s border controls. As there is no veto power and measures are adopted through the codecision procedure the UK has a reduced influence over the development of a common asylum policy.
The Commission adopted, in 2008, concrete proposals to implement the Policy Plan on Asylum and the Pact on Immigration and Asylum which are the first proposals of the second phase of the asylum legislation. They represent a legislative step towards the single asylum system for the whole of the European Union.
According to the Commission the Reception Conditions Directive allows a considerable amount of discretion to Member States in several key areas, therefore, it adopted a proposal amending this instrument in order to limit the Member States margin of discretion and to achieve further harmonization.
Under the Commission proposal, Member States will be required to give asylum seekers access to the labour market no later than six months after they make their applications for international protection. Therefore, asylum-seekers would no longer have to wait one year but six months after submitting an application for international protection before being allowed to work. The Commission has said that “the imposition of national labour market conditions shall not unduly restrict access to employment for asylum seekers.” The UK is concerned that such requirement may encourage unfounded claims since people will be more likely to come to the EU and claim asylum to benefit from those rights and not because they need protection.
The former Government has decided to opt out to the revision of the EU Directive on Reception Conditions for Asylum Seekers. This was the first time that the labour Government has decided to opt out from an asylum measure.
According to the European Union Committee of the House of Lords, the UK Government's decision not to opt-in to this proposal raises doubt over the UK's legal position when it decides not to opt-in to EU amending legislation. The Commission has proposed to repeal the existing measures and replace them with the proposals. The House of Lords believes when the initial measure is repealed in its entirety and replaced by a subsequent measure, if the UK does not opt in to the subsequent measure then it is not bound by its provisions including the provision effecting the repeal of the initial measure. Hence, the original measure would continue to apply in the UK in its no amended form. According to the former Government if the old measure is repealed it ceases to exist therefore by deciding opting-out to the new Directive the UK will automatically cease to be ruled by the old Directive on reception conditions.
It is important to mention that under the Lisbon Treaty, the UK can opt out of amendments to legislation from which it has already opted in. However, if the Council decides that the non participation of the UK in the amending version of an existing measure makes the application of that measure inoperable for other Member States or the Union, it may urge the UK to take part in the adoption and application of the proposal. If the UK decides not to participate in the amendment, the Council acting by QMV may determine that the UK shall bear the direct financial consequences incurred as a result of the cessation of its participation in the existing measure. The UK will be, therefore, under pressure to participate.
