In November 2019, in the Haqbin case, the Court of Justice of the European Union (ECJ) held that an applicant for international protection guilty of serious breaches of the rules of the accommodation centre in which he or she is hosted or of seriously violent behaviour cannot be sanctioned by a withdrawal of material reception conditions relating to housing, food or clothing. This would violate the principle of proportionality and undermine the human dignity of the applicant. The judgment is of great importance, as many Member States sanction unruly asylum seekers with the withdrawal of exactly these reception conditions.
The exclusion from material support according to Belgian Law
The Belgian “Law on the reception of asylum seekers and certain other categories of foreign nationals” of 2007 provided that “a sanction may be imposed on the beneficiary of the reception in the event of a serious breach of the operating regulations and rules applicable to the reception facilities (…).” However, the law also foresaw that, when choosing the sanction, it was necessary to take into account the nature and the importance of the breach and the actual circumstances in which it was committed. Temporary exclusion from any material support in a reception facility was possible for a maximum period of 1 month.
The relevant facts
Mr. Zubair Haqbin is an Afghan national who arrived in Belgium in 2015 as an unaccompanied minor. After having lodged an application for international protection, he was hosted in a reception centre. In that centre, in April 2016, Mr. Haqbin was involved in a brawl with other residents of various ethnic origins. The police had to intervene and arrested Mr. Haqbin as he was allegedly one of the instigators of the brawl. Mr. Haqbin was released the following day.
However, as a consequence of these events, the director of the reception centre decided to exclude Mr. Haqbin for a period of 15 days from accommodation and further material assistance in the reception facility. The decision was confirmed by the director-general of Fedasil, the Belgian Federal agency for the reception of asylum seekers.
Due to his exclusion from the centre, Mr. Haqbin, according to his own statements and those of his guardian, had to spend the nights from 19 to 21 April and from 24 April to 1 May 2016 in a park in Brussels and stayed with friends or acquaintances during the other nights.
Mr. Haqbin’s guardian lodged an application to suspend the exclusion measure. That application was dismissed for lack of extreme urgency, since, according to the competent Labour Court of Antwerp, Mr. Haqbin had failed to show that he was homeless. From 4 May 2016, Mr. Haqbin was assigned to a different reception centre.
Mr. Haqbin’s guardian brought an action before the Labour Court in Brussels seeking cancellation of the decisions to exclude Mr. Haqbin from the centre and compensation for the damage suffered. The action was dismissed as unfounded. In March 2017, Mr Haqbin’s guardian brought an appeal against that judgment before the referring court, the Higher Labour Court of Brussels. In December 2017, Mr. Haqbin, who had reached his majority in the meantime, continued the proceedings in his own name.
The Higher Labour Court of Brussels made a request for a preliminary ruling on the interpretation of Article 20 of Directive 2013/33/EU (the Reception Conditions Directive) to the ECJ, which boiled down to the question of under which circumstances what kind of reception conditions can be reduced or even withdrawn in their entirety.
The ECJ interprets Article 20 of the Reception Conditions Directive as meaning that Member States bound by it must ensure that material reception conditions are available to all applicants for international protection, and that the measures adopted for those purposes provide an adequate standard of living, guaranteeing the subsistence of asylum seeker and protecting their physical and mental health (para. 33). In the specific situation of ‘vulnerable persons’, like minors, Member States must ensure that such a standard of living is ‘met’ (Article 17(2) of the Reception Conditions Directive, para. 34). Though the requirement for Member States to ensure that material reception conditions are available to applicants is not absolute (para. 35), reduction or withdrawal of reception conditions is only possible under the circumstances that fall under Article 20 of the Reception Conditions Directive (para. 36).
According to Article 20(4) of the Directive, Member States may determine ‘sanctions’ on asylum seekers’ serious breaches of the rules of the accommodation centres as well as to seriously violent behaviour of the applicant for international protection. The Court recalls that the concept of sanctions is not defined in the Directive, and that Member States are therefore given some latitude in determining those sanctions (para. 41). The Court interprets Article 20(4) of the Directive to mean that the sanctions envisaged in the directive may, in principle, concern material reception conditions (para. 43).
The Court repeats Article 20(5) of the Directive, which provides that any sanction within the meaning of Article 20(4) 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 (para. 45). Respect for human dignity, within the meaning of Article 1 of the Charter of Fundamental Rights, requires that the application of Article 20(4) of the Directive does not bring the person concerned in a situation of extreme material poverty that does not allow that person to meet his or her most basic needs such as a place to live, food, clothing and personal hygiene, that undermines his or her physical or mental health or puts that person in a state of degradation incompatible with human dignity (para. 46). The ECJ here refers to the judgment in the Jawo case.
The Court then concludes that 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 Article 20(5) of the Directive.
The ECJ finds that, instead, Member States may impose sanctions that do not have the effect of depriving the applicant of material reception conditions, such accommodating the applicant in another (separate) part of the accommodation centre, or transferring the applicant to another centre altogether. Ultima ratio, and providing that the conditions laid down in Articles 8 to 11 of the Directive are met, even holding the applicant in detention pursuant to Article 8(3)(e) of the Directive is possible (para. 52).
Finally, Member States must especially consider the particular situation of minors and ensure the respect of the principle of proportionality (para. 53). The best interests of the child should be a primary consideration for Member States when implementing the provisions of the directive that involve minors (para. 54).
The Court concludes that, in the light of Article 1 of the Charter of Fundamental Rights of the European Union, Article 20(4) of the Reception Conditions Directive does not allow Member States to impose in such cases a sanction consisting in the withdrawal, even temporary, of material reception conditions relating to housing, food or clothing in respect of the applicant. The imposition of other sanctions under Article 20(4) of the Directive must, under all circumstances, comply with the conditions laid down in Article 20(5) thereof, including those concerning the principle of proportionality and respect for human dignity.
Excluding unruly asylum seekers from centres – a common practice
The Court’s ruling in Haqbin, concretely, means that Member States can only impose sanctions on unruly asylum seekers that leave their human dignity intact. Seen in the context of the Court’s other recent rulings on reception conditions, such as Jawo, and Hamed and Omar, the ruling affirms that in all circumstances, asylum seekers must be able to meet their most basic needs: a place to live, food, clothing and personal hygiene.
This judgment will therefore bring an end to a very common practice in many Member States: Violent asylum seekers or even persons not respecting the rules of the accommodation centres (for example in terms of consuming alcohol, bedtime hours, etc.) are excluded from these centres and basically left to live on the streets. In this regard, the situation in Italy is particularly bad, where the exclusion from reception centers in case of a breach of house rules is a measure provided for by law. According to this law, asylum seekers that are absent from their accommodation for more than 72 hours are excluded from their accommodation and cannot access other centres during their asylum procedure, which may take several months if not years.
In this context, the Court’s reference to its decision in Jawo is especially noteworthy. In this case, concerning the Dublin transfer of an asylum seeker from Germany to Italy, the Court judged that “if the indifference of the authorities of a Member State result in [a transferred asylum seeker] […]finding himself […] in a situation of extreme material poverty” which, in turn, “does not allow him to meet his most basic needs, such as, inter alia, food, personal hygiene and a place to live, and that undermines his physical or mental health or puts him in a state of degradation incompatible with human dignity” (para. 92), the applicant should not be transferred because of the real risk of inhuman or degrading treatment.
Rulings such as Jawo and Haqbin point out that Member States are liable for the wellbeing of the asylum seekers throughout the entire procedure, and even beyond (for example after their transfer to the Member State that is responsible for the assessment of their application under the Dublin Regulation), for those that are well-behaved and those that are not. Asylum seekers are human beings and as that are entitled to the full range of rights enshrined in the Charter of Fundamental Rights of the EU. This goes for asylum seekers in Belgium as well as for those in Italy, Bulgaria, Croatia and Greece. It is the responsibility of each Member State individually, but also of the EU as a whole, that measures are taken to make sure that the rights and (material) needs of asylum seekers throughout the EU are met.