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...experience reveals acute tensions between EU asylum agenda and the EU Member States' obligations under international refugee and human rights law. The provision of support for asylum seekers challenges narrow approaches to the realization of socio-economic rights for "others" and to host countries' duties in that respect. The EU Reception Conditions Directive, which aims to set out standards for the reception of asylum seekers across the Union, exemplifies this predicament. Yet international refugee and human rights law provides a legal framework that establishes minimum standards critical to dignified living for asylum seekers and the protection of the right to seek refugee status in the EU and beyond.
Resume
La problematique de l'asile a eu des repercussions nuisibles sur la disposition de l'aide aux demandeurs d'asile dans les pays d'accueil. La menace de la misere est devenue une pierre de touche des politiques conjoncturelles sur l'asile et elle sert de plus en plus d'element dissuasif pour contrer la demande d'asile. L'experience de l'Union europeenne revele des tensions aigues entre le programme d'asile de l'UE et les obligations des pays membres de I'UE en regard des droits internationaux des refugies et de la personne. La disposition sur l'aide aux demandeurs d'asile remet en question les approches a court terme a l'egard de la mise en oeuvre des droits socio-economiques pour les responsabilites des > et des pays hotes. Les directives sur les conditions d'accueil de I'UE, qui visent a etablir des normes pour l'accueil de demandeurs d'asile partout dans l'Union, exemplifient cette difficile situation. Malgre tout, les droits internationaux des refugies et de la personne fournissent un cadre qui fixe des normes minimales de conditions de vie decentes pour les demandeurs d'asile et la protection du droit de demander un statut de refugie dans l'UE et ailleurs.
Introduction Actuellement des centaines de personnes venues chercher protection en France couchent dans la rue faute d'hebergement. Des femmes, des hommes, des enfants qui ont du quitter leur pays ou ils etaient persecutes ou risquaient de l'etre sont contraints de vivre dans des conditions proches de la mendicite. (1) This bleak picture is symptomatic of a deterioration of the conditions of the reception of asylum seekers not only in France, but across the European Union (EU). The treatment of asylum seekers pending adjudication on their application for refugee status reveals acute tensions between the hostile agenda of the EU and its Member States in the field of asylum and their humanitarian commitment and obligations. Negative perceptions of asylum seekers that foster myths and prejudice have polluted policy making and normative reform in the area of asylum at both national and European level. The threat of the "bogus" asylum seeker has emerged as a pervasive and recurrent theme in the political rhetoric. (2) Moreover, border control, immigration, and security concerns have become primary factors in the shaping of the EU asylum policy. (3) Asylum is increasingly perceived as a migration-related matter closely connected with the question of irregular migration. (4) The current context leads to a "quantitative approach" to asylum where "cutting down the numbers" becomes a paramount objective and a yardstick for measuring the efficiency of asylum laws and policies, thus progressively eroding the humanitarian institution of asylum. Portrayed as burdens for domestic economies as well as potential threats to national security, asylum seekers are becoming the EU "unwanted guests."
The paper examines how scant provisions for support of asylum seekers have become instrumental in restrictive asylum policies across the EU. In other words, it considers attempts to use the threat of destitution as a deterrent against asylum seeking. The paper focuses on asylum seekers, namely, persons who have applied for refugee status within the meaning of Article 1(A)(2) of the Convention relating to the Status of Refugees (Refugee Convention). (5) The reasons for this focus are twofold: first, the Refugee Convention remains the cornerstone of refugee protection; second, the Convention has come under sustained attacks, making asylum seekers prime targets of harsher legislation on State support. (6) However, it is acknowledged that many of the issues discussed in this paper are also relevant to other categories of people in need of international protection. (7)
The paper adopts a human rights approach to support for asylum seekers and looks at the question of socio-economic rights for asylum seekers in the context of the EU. For that purpose, the paper scrutinizes the international legal framework and the Council Directive laying down minimum standards for the reception of asylum seekers (Reception Conditions Directive) (8) which is now central to the provision of support for asylum seekers in the EU. The challenges faced by host States and asylum seekers in relation to reception are also considered.
Protecting the "Others" against Destitution: The Question of Fundamental Socio-economic Rights for Asylum Seekers
Few will dispute that a person in abject condition, deprived of adequate means of subsistence, or denied the opportunity to work, suffers a profound affront to his sense of dignity and intrinsic worth. Economic and social arrangements cannot therefore be excluded from a consideration on the demands of dignity. At the least, it requires recognition of a minimal concept of distributive justice that would require satisfaction of the essential needs of everyone. (9)
Respect for human dignity supposes the fulfillment of basic socio-economic rights. Many of these rights may be described as droits creances, the implementation of which requires positive action on the part of the State and the mobilization of considerable State resources.
Socio-economic rights aim to provide a base of material security, inherent in human dignity, below which citizens shall not fall. (10) The use of the word "citizen" is not neutral. Indeed, the realization of socio-economic rights for non-nationals is mediated by significant political, economic, and social factors. The conferment of socio-economic rights on non-nationals, namely "non-citizens," necessitates an approach to the welfare State based on greater social and economic solidarity. (11)
In that respect, two contradictory trends tend to dominate legislative debates and interventions: the need to achieve greater equality between nationals and non-nationals and the need to respond to social tensions, especially in times of economic recession when foreign migrants are perceived as a threat to the domestic workforce. Whilst the first trend supports the adoption of non-discriminatory laws and policies, the second results in stringent measures that are likely to contribute to the impoverishment of migrants. (12) The question of basic socio-economic rights for asylum seekers is nested within wider debates on asylum and migration control as well as general discussions on the future of welfare provision. Whilst the latter are concerned with the pressures faced by the welfare State as a result of "economic globalisation, budgetary deficits, demographic change, as well as the effects of neo-liberal thinking on welfare provision," (13) the former focuses on the pressures--perceived or actual--stemming from forced and voluntary migration. Both types of pressure have significant implications for those seeking refugee status in the EU, including for their access to welfare provisions pending a final decision on their application for refugee status. The polarized dynamic that opposes citizens to non-citizens, "us" to "others," with respect to socio-economic rights is duplicated at EU level with its self-centred approach, which primarily seeks the entitlement of EU citizens. Whilst there is progress with regard to the rights and status of third-country nationals who are permanent residents in the EU, (14) the EU asylum and immigration policies show a trend towards the exclusion of other categories of non-EU citizens.
The dilemma of asylum seekers lies with their great vulnerability and high dependence on host States as well as the temporary and uncertain nature of their status. Restrictive asylum laws and policies exacerbate this vulnerability inherent in the condition of asylum seeker. In spite of their evident need for State support, the realization of socio-economic rights for asylum seekers in host countries remains the object of heated debates. Because they do not contribute to the economy in general and to the welfare system in particular, asylum seekers are too often perceived and portrayed as undeserving recipients of State benefits and assistance. (15) Such views rest upon mistaken assumptions and prejudice against asylum seekers. No one can contest that asylum seekers are in great need of State support. And if the assertion that they benefit from rather than contribute to the host State welfare system is indeed correct, the latter statement must be put into context to avoid simplistic and erroneous conclusions. The reasons for asylum seekers' need for State support are entrenched in their very circumstances which make them one of the most vulnerable populations worldwide. Paradoxically, host States aggravate asylum seekers' dependence by preventing, limiting, or unnecessarily delaying their access to employment. Yet, as observed by UNHCR, "many asylum seekers are capable of attaining a certain degree of self-reliance if provided with an opportunity to do so." (16) This issue is examined later in the paper.
The Challenges Faced by Host States and Asylum Seekers
The most significant challenges faced by the EU Member States as host States relate to the costs associated with...
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