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Complete withdrawal of asylum support breaches EU law

Complete withdrawal of asylum support breaches EU law

The Court of Justice of the European Union has ruled that it is unlawful to completely withdraw all housing and financial support from an asylum seeker, even if they have breached the rules of an accommodation centre. In Case C-233/18 Haqbin v Federaal Agentschap voor de opvang van asielzoekers, the court sharply rebuked Belgium for imposing a total withdrawal of support on a child asylum seeker for failing to comply with the rules. A full account of the relevant international law can be found in Natasha’s account of a similar case in Greece.

The case concerned an unaccompanied child from Afghanistan who sought asylum in Belgium. He was housed at the Broechem reception centre, where he became involved in a brawl. The child was arrested by the police but released the following day with no further action.

Nevertheless, the director of the Broechem reception centre imposed a 15-day exclusion from the centre as a punishment. During this time the child spent several nights sleeping in public parks in Brussels as well as finding friends to stay with.

EU law provides for sanctions to be imposed on asylum seekers who break the rules at a reception centre. The Reception Conditions Directive states:

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

The court ruled that reduction or withdrawal of housing and other support from an asylum seeker might be an appropriate sanction within the meaning of the rule, even though it is not explicitly mentioned:

it is appropriate to note, first, that a measure for reduction or withdrawal of material reception conditions in respect of an applicant on account of serious breaches of the rules of the accommodation centres or seriously violent behaviour constitutes, in the light of the aim and the detrimental consequences thereof for the applicant, a ‘sanction’ in the ordinary meaning of that word and, secondly, that that provision is included in Chapter III of the directive, which is dedicated to the reduction and withdrawal of such conditions. It follows that the sanctions envisaged in the directive may, in principle, concern material reception conditions.

But the court clarified that any sanction imposed must be proportionate and not result in a violation of the asylum seeker’s dignity:

… any sanction within the meaning of Article 20(4) thereof must be objective, impartial, reasoned and proportionate to the particular situation of the applicant and must, under all circumstances, ensure access to health care and a dignified standard of living for the applicant.

The total withdrawal of material support, as was imposed by the Belgian authorities in this case, did not comply with EU law because it necessarily violated the child’s dignity:

A sanction that is imposed exclusively on the basis of one of the reasons mentioned in Article 20(4) of Directive 2013/33 and consists in the withdrawal, even if only a temporary one, of the full set of material reception conditions or of material reception conditions relating to housing, food or clothing would be irreconcilable with the requirement, arising from the third sentence of Article 20(5) of the directive, to ensure a dignified standard of living for the applicant, since it would preclude the applicant from being allowed to meet his or her most basic needs such as those mentioned in the previous paragraph.

Having decided the case against the Belgian government, the court went on to emphasise the importance of taking into account both the vulnerability of an unaccompanied child asylum seeker and their best interests:

Moreover, according to Article 23(1) of Directive 2013/33 the best interests of the child are a primary consideration for Member States when implementing the provisions of the directive that involve minors.

This case is a great result and vindication for the child’s lawyers, although perhaps little consolation for the child that it has taken three years for a court to rule that it was unlawful to make him street homeless. The Court of Justice relies heavily on national courts to ensure that EU law is respected and it is disappointing that the Belgian court that originally considered the matter was not prepared to find that imposing such a severe sanction on a child was disproportionate.

Alexander Schymyck

Alex teaches Public Law at Queen Mary University of London and is due to start pupillage at Garden Court Chambers in October 2020

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