Planned destitution as a policy tool to control migration in the EU: Socio-economic deprivation and international human rights law

Policies of ‘planned destitution’ in the EU

The increased use of social and economic exclusion as a policy tool with a view to managing certain groups of ‘undesirable’ migrants is one of the major trends in European asylum and migration policy. While this already occurs under the current legislative framework, the most recent reform proposals tabled by the European Commission appear to tighten such policies.

Planned destitution refers to situations where social and economic exclusion is used as a policy tool to control migration, especially as a deterrent against unwanted migration, including asylum seekers. Such measures may respond to various intersecting policy aims, ranging from pushing those present on territory to leave, deterring future arrivals, and creating classes of exploitable people serving certain needs of the economies. As a result, the use of destitution as a migration management tool generates acute tensions within host states between immigration law and human rights protection.

In the EU, two areas stand out in which such policies are used: on the one hand, policies to prevent onward movement of asylum seekers within the EU, on the other hand, measures to enforce returns to third countries. In both constellations, the migrant does not leave when the EU (and/or the Member State) expect them to, a situation which can be ascribed to the ‘obstinacy of migratory movements’.

Preventing secondary movements of asylum-seekers within the EU

Within the EU, the so-called Dublin Regulation assigns one particular Member State responsible for the processing of each asylum claim. But some asylum-seekers move on to other Member States regardless. Such movements are commonly referred to as ‘secondary movements’ – and the EU and its Member States seek to prevent these. One response by Member States consists in sanctioning secondary movements with curtailing material reception conditions, which are usually granted to asylum-seekers, such as housing, food or clothing.

This does not necessarily conform with the legal framework of EU law. The Reception Conditions Directive lays out material reception conditions in Art. 17–20 (just as Art. 13–16 of the previous Directive 2003/9/EC), including the circumstances under which these conditions may be cut. Legislation that reduces or withdraws reception conditions for other reasons than those foreseen in Art. 20 are contrary to the Reception Conditions Directive. Specifically, sanctions for onward movement are not foreseen. This was confirmed in 2012 by the CJEU in its Cimade and GISTI judgment. The CJEU held that, under the current legislation, a Member State is obliged to provide material reception conditions even to an asylum seeker in respect of whom it decides to call upon another Member State to take charge of or take back that applicant under the Dublin Regulation. The obligation ceases only when the applicant is actually transferred. Although access to the labour market is not, strictly speaking, a material reception condition, the CJEU later extended this reasoning to Art. 15 of the Reception Conditions Directive (in  K.S., at para. 67–68). In both cases, the CJEU did not rely solely on the wording of the Directive but also buttressed its argument by reference to the preservation of human dignity (Cimade and GISTI at para. 56; K.S. at para. 69). The reform proposal for a recast Reception Conditions Directive, tabled by the European Commission in 2016, is, therefore, highly questionable. Rather than explicitly preventing such policies of withdrawing reception conditions, the Commission proposed creating a legal basis for them (see Art. 17a of the 2016 proposal for a recast Reception Conditions Directive).

Enforcing returns to third countries

Another area where policies of ‘planned destitution’ are implemented relates to return. Some rejected asylum-seekers and other irregular migrants cannot immediately be returned. Barriers to removal may be humanitarian, legal, or practical in nature (eg, the non-refoulement principle, delays in obtaining the necessary papers from third countries, or non-cooperation of individuals). But the EU and its Member States have an interest in their departure.

One response by Member States consists in the creation of so-called ‘hostile environment’ policies. The EU legal framework itself does not define the status and rights of non-removable migrants (cf Recital 12, Art. 9 and 14 Return Directive). While Art 14(1) Return Directive contains a list of ‘principles’ that ‘are taken into account as far as possible’ pending return, these are not explicitly framed as rights and also very minimal, in both their personal and material dimension (the main principle is about emergency health care and essential treatment of illness), as well as in terms of the nature of the obligations it creates, although the CJEU has partly mitigated this gap by relying on the effectiveness principle in Abdida (at para. 58-60). This creates a legal vacuum filled by domestic law – and many Member States respond with ‘hostile environment’ policies, which often involve making access to basic needs conditional upon cooperation with return. The term ‘hostile environment’ was coined by Theresa May in the UK, but such policies have also been in place in the Netherlands for many years, as well as in Austria and Germany, since the entry into force of a recent legislative proposal. The response of the CEAS reform proposals to this situation is not to address this issue at all, but rather to condone and tolerate this kind of ‘planned destitution’ policies in its Member States.

Are ‘planned destitution’ policies contrary to international human rights law?

The question arises as to whether the policies of ‘planned destitution’ are contrary to international human rights law. At the regional level, Art. 3 ECHR provides for a source of minimum social guarantees. While the ECHR mainly sets forth civil and political rights, the ECtHR has recognized that many of them have implications of a social or economic nature. Thus, although the ECHR does not explicitly lay down a right to human dignity, it is generally accepted that Art. 3 ECHR is derived from that principle. In its case-law, the Strasbourg Court has developed that a State’s responsibility is engaged under Art. 3 ECHR when applicants who are wholly dependent on State support find themselves faced with official indifference in a situation of serious deprivation. However, if the migrants in question can influence their destitute situation, such as by lodging an application for benefits or starting legal proceedings against a refusal – but also, for those subject to a return decision, by leaving the host country voluntarily or cooperating in a return procedure – there is no violation of Art. 3 ECHR. According to this jurisprudence, therefore, human dignity as derived from Art. 3 ECHR does not appear to prohibit the policies of planned destitution relating to asylum-seekers and irregular migrants that do not cooperate in their return to other Member States or third countries identified above.

However, beyond the ECHR, several binding international human rights treaties specifically lay down socio-economic rights, such as the International Covenant on Economic, Social and Cultural Rights (ICESCR) at the global level, and the revised European Social Charter (Revised ESC) at the regional European level. The supervisory bodies of each of these treaties have held in their quasi-judicial practice that a minimum core of socio-economic rights has to be granted to all persons within the jurisdiction of a State. Specifically, the supervisory body of ICESCR, the Committee on Economic, Social and Cultural Rights (CESCR) has opined in its General Comment No. 3 at para. 10 that ‘a minimum core obligation to ensure the satisfaction of, at the very least, minimum essential levels of each of the rights is incumbent upon every State party. Thus, for example, a State party in which any significant number of individuals is deprived of essential foodstuffs, of essential primary health care, of basic shelter and housing, or of the most basic forms of education is, prima facie, failing to discharge its obligations under the Covenant.’  The CESCR considers these core obligations as non-derogable and ‘indivisibly linked’ to the dignity of the human person. These obligations include access to basic shelter and minimum essential food for everyone, regardless of immigration status (see CESCR, General Comment No. 12: The right to adequate food, E/C.12/1999/5, at para. 4 and 15; General Comment No. 4: The right to adequate housing, E/1992/23, at para. 6–7; General Comment No. 14: The right to the highest attainable standard of health (Art. 12); E/C.12/2000/4, at para. 43 and 47). Therefore, in order to preserve the human dignity of ‘everyone’, States must ensure a minimum core of the Covenant rights for irregular migrants who are actually present. For as long as a person falls within the jurisdiction of a State Party, this State must comply with its Human Rights obligations toward that individual, rather than referring the person to protection elsewhere.

At the regional level, the European Social Charter of 1961 (ESC, extended by an Additional Protocol of 1988) and the Revised European Social Charter of 1996 which entered into force in 1999 (Revised ESC) contain comprehensive lists of social and economic rights. These rights are, as a rule, binding on the vast majority of European States. Yet, according to its Appendix, the Revised ESC in general exempts irregular migrants from the scope of its protection. In its jurisprudence, however, the European Committee on Social Rights (ECSR) – the treaty body that monitors the implementation of the ESC and the Revised ESC and hears collective complaints in a quasi-judicial procedure since the 1995 Additional Protocol came into force in 1998 – has bridged this gap by setting out a minimum floor of social protection that should apply to all persons, including irregular migrants (ECSR, International Federation of Human Rights Leagues (FIDH) v. France on access to the health care system; Defence for Children International (DCI) v. the Netherlands at para. 37, on access to social housing; DCI v. Belgium on social assistance). Relying on the preservation of human dignity as ‘the fundamental value and indeed the core of positive European human rights law’, the ECSR has argued that the limited personal scope of the Revised ESC should not affect disadvantaged groups. In light of other international treaties ratified by all Parties, in particular the ECHR, the rights of the Revised ESC should be extended to non-nationals without distinction. Therefore, it held, the denial of rights connected to life and dignity to foreign nationals within the territory of a State Party, ‘even if they are there illegally’, is contrary to the Revised Social Charter.

The Committee has since upheld and expanded this jurisprudence (ECSR, Centre on Housing Rights and Evictions (COHRE) v. Italy, at para. 33; Conference of European Churches (CEC) v. the Netherlands, at para. 144; European Federation of National Organisations working with the Homeless (FEANTSA) v. the Netherlands, at para. 58–61). In subsequent reporting cycles, the ECSR has also begun to clarify the circumstances in which non-nationals, including those irregularly present on the territory of a Contracting State, are entitled to the protection of the Revised ESC. As a result, the restriction on the scope of rights imposed by the Appendix does not apply when it comes to the enjoyment of the ‘minimum core’ of the rights set out in this Charter that are essential to maintain human dignity (ECSR, Conclusions XVII-1, Vol. 1 (2004), General Introduction, at para. 5). This minimum-floor logic converges with the obligation to meet ‘minimum essential levels’, as developed by the CESCR.

Although the ECSR makes reference to ECtHR jurisprudence, the Committee also explicitly observes in CEC v. the Netherlands at para. 17 that ‘the scope of the Charter is broader [than that of the ECHR, as developed among others in M.S.S. v. Belgium and Greece] and requires that necessary emergency social assistance be granted also to those who do not, or no longer, fulfil the criteria of entitlement to assistance specified in the above instruments, that is, also to migrants staying in the territory of the States Parties in an irregular manner, for instance pursuant to their expulsion.’ Specifically, the Committee held that emergency social assistance must be granted without any conditions and, in particular, cannot be made conditional upon the willingness of the persons concerned to cooperate in the organization of their own expulsion.

This jurisprudence on a human rights-based socio-economic subsistence level is also enshrined by the Global Compact for Migration (GCM). A Guiding Principle of the GCM is non-discrimination and protection of the human rights of all migrants, regardless of status. More specifically, with regards to socio-economic rights, Objective 15 of the GCM commits States to ensuring safe access to basic services to all migrants, regardless of their status. It appears that policies of ‘planned destitution’ would conflict with this objective. Much like the quasi-judicial decisions of the Committees overseeing binding human rights treaties, the GCM is non-binding. But the GCM, in its Objective 15, crystallises these doctrines and underlines their relevance to migrants, including those who are staying irregularly.

What is the status of the ‘core minimum’ doctrine in EU law?

At EU level, the Revised ESC is reflected in the EU Charter on Fundamental Rights (EU-CFR). Art. 1 EU-CFR gives the right to human dignity a central place in the EU Charter. According to Art. 52(3) of the EU-CFR, ‘in so far as this Charter contains rights which correspond to rights guaranteed by the ECHR, the meaning and scope of those rights shall be the same as those laid down by the ECHR’. As discussed, the ECtHR jurisprudence on Art. 3 ECHR and human dignity does not appear to rule out the policies of planned destitution relating to uncooperative migrants and asylum-seekers. Note, however, that the second sentence of Art. 52(3) EU-CFR specifies that this provision ‘shall not prevent Union law providing more extensive protection.’

In addition to human dignity, the EU Charter also transfers some provisions of the Revised ESC into the EU legal order, relating to labour, social security, social assistance, and healthcare. In some cases, the text is taken directly from the Revised ESC. Specifically, Art. 34 EU-CFR lays down the right to social security and social assistance and thus mirrors and specifies Art. 12 and 13 Revised ESC. Notably, pursuant to Art. 34(3) EU-CFR the EU (and thus the Member States when they are implementing EU law) ‘recognises and respects the right to social and housing assistance so as to ensure a decent existence for all those who lack sufficient resources’. The Explanations to the EU Charter note that Art. 34(3) EU-CFR inter alia draws on Art. 30 and 31 of the Revised Social Charter. The CJEU has repeatedly referred to the right to social and housing assistance to interpret the term ‘core benefits’ used in the Long-term Residents Directive (Art 11(4) Directive 2003/109).

This consonance between Revised ESC and Charter speaks in favour of adopting the doctrines developed by the CESCR and the ECSR as part of the applicable EU law. However, the jurisprudence of these committees has a less certain legal status within EU law, as compared to the case-law of the ECtHR. While all EU Member States are Parties to the ICECSR and the ESC, five of them have signed but not yet ratified the Revised ESC. The collective complaint procedure has been accepted only by 12 EU Member States, while all EU Members are subject to the reporting system of the Social Charter. Unlike with the ECtHR, the EU Charter of Fundamental Rights does not establish an explicit link with the quasi-judicial practice of the CESCR or the ECSR (cf. Art. 52(3) EU-CFR). Moreover, the Revised ESC – like the ESC – has an ‘à la carte’ system, allowing acceding States, within certain limits, to choose which provisions they agree to be bound by – which leads to variable commitments across the States Parties.

Against this backdrop, the CJEU unsurprisingly does not consider the ESC or the Revised ESC, in its entirety, as having ‘de facto’ binding force on the EU, unlike the ECHR – although the CJEU has repeatedly referred to the ESC and the Revised ESC in its case-law as a source of inspiration for interpreting EU law. The CJEU has also reminded the Member States that when they are implementing EU legislation – on family reunification, in the instant case – they must conform with their international obligations, including those derived from the ESC. Consequently, where rights stipulated in the ESC or the Revised ESC have been incorporated into the EU Charter as in the case of the rights to social security and social assistance, they shall be taken into account as a guide for the interpretation of the Charter. This naturally extends to the jurisprudence developed by the ECSR. While there is no automatic relationship between these bodies of law, the presumption of substantive homogeneity between EU fundamental rights and international Human Rights also applies in the realm of social and economic rights. Accordingly, the ‘core minimum’ doctrine as developed by the CESCR and ECSR applies when assessing policies of planned destitution in the EU.

In its case-law on a dignified standard of living of asylum seekers, the CJEU initially turned to the ECHR and the case-law of the Strasbourg Court, transferring to Art. 4 EU-CFR the standard that the ECtHR first developed for Art. 3 ECHR in M.S.S. v. Belgium and Greece (see Ibrahim, at para. 90 et seq; Jawo, at para. 92 et seq). Yet, as discussed above, extreme material poverty in breach of Art. 3 ECHR is a narrower concept of human dignity than the one developed by the CESCR and the ECSR. This is beginning to be reflected in case-law, as the CJEU appears to be developing a notion of human dignity under Art. 1 EU-CFR that is more independent of the prohibition of torture and inhuman or degrading treatment (Haqbin, at para. 45–47). This would imply a higher standard of protection. In the case of Haqbin, interpreting the provision on reduction and withdrawal of reception conditions, the CJEU concluded, with reference to Art. 1 EU-CFR, that a sanction that consists in the full withdrawal of material reception conditions relating to housing, food, or clothing, even if only for a limited period of time, is irreconcilable with the requirement to ensure a dignified standard of living for the applicant (at para. 47). Although the Court did not make explicit reference to the ECSR in that regard – which arguably reflects the uncertain legal status of the Revised ESC in EU law – it appears that the CJEU’s notion of human dignity is closer to that developed by the ESCR. Hence, in respect of a dignified standard of living, the CJEU appears to have embraced the view that the relevant EU fundamental right in substance is consonant with the jurisprudence of the ECSR, rather than merely reflecting the Art. 3 case-law of the ECtHR.

EU Member States must abstain from policies of ‘planned destitution’

In light of the above, EU law as it stands obliges Member States to provide for a socio-economic subsistence level that meets their obligations under international law. Policies to sanction secondary movements or to encourage returns which resort to socio-economic deprivation are therefore unlawful if they fall below the core minimum as defined in international jurisprudence, and mirrored in Objective 13 of the Global Compact for Migration.

Regarding secondary movements, the proposed Art 17a of the proposal for a recast Reception Conditions Directive provides for withdrawal of reception conditions in paragraph 1, followed by a requirement to ‘ensure a dignified standard of living for all applicants’ in paragraph 2. This rather contradictory formulation is sufficiently undetermined to enable a lawful interpretation by implementing Member States through incorporating EU fundamental rights. However, its lack of specificity invites results that actually fall below the core minimum required by Human Rights law. In the case of returns, Art. 14 Return Directive leaves gaps that are filled by Member States with problematic practices.

In light of the EU’s positive obligation ‘to protect’ the relevant socio-economic rights, enhanced efforts are required in response to Member State policies that potentially violate the dignity of asylum seekers and irregular migrants. To fulfil this positive obligation, EU legislation should require States to ensure a decent existence for all migrants actually present, regardless of their legal status. In order to avoid implementation deficits, the level of protection granted should build a safety margin against the absolute minimum. , The EU would thus more effectively use its powers to prevent unlawful results in a field in which it is generally accountable (cf p. 21-22 REMAP study), delivering on its commitment to human dignity as one of its foundational values.

Against that backdrop, the EU should prevent Member States from using restrictions to socio-economic rights as a means to disincentivize ‘secondary movements’ of asylum seekers or to incentivize returns. Counterfactual assumptions that the person ought not be present according to the terms of asylum rules cannot justify a real risk of violating the Human Rights of persons who do not respond to the incentive to leave.

A pragmatic approach to establishing such a safety margin in the case of secondary movements would be to make the rights stipulated in the Reception Conditions Directive available to all asylum seekers irrespective of the place of asylum jurisdiction according to the Dublin III Regulation or any follow-up Regulation. The text of the Directive should explicitly rule out any reduction or withdrawal of benefits as a tool to promote compliance with the Dublin rules. The Commission should amend its proposal for a recast Reception Conditions Directive accordingly, in particular in withdrawing the proposed Art. 17a. Of course, such an approach does not amount to recognizing a general right to freedom of movement within the EU, as the States reserve their powers to perform Dublin transfers in accordance with EU law. Whenever they actually fail to enforce the obligation to leave, however, they would have to provide access to basic socio-economic rights without any discrimination. Similarly, as regards returns, the EU should rule out hostile environment policies. This could be done by extending the material reception conditions granted to asylum seekers under the Reception Conditions Directive to all irregular migrants who are subject to the Return Directive, regardless of whether they are considered to cooperate in the return procedure. Art. 14 of this Directive could be amended accordingly. In both constellations such an approach would prevent systematic Human Rights violations on the part of the Member States in a field occupied by the EU through its previous legislative action.

There is no legal requirement for this specific policy approach and other policy solutions may be chosen in order to prevent unlawful withdrawals of core socio-economic rights. In any case, according to the above legal analysis, policies of planned destitution are contrary to the EU Charter, read in light of the pertinent international Human Rights law, and must be prevented.

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Originally published as an EU Immigration and Asylum Law and Policy/Odysseus Network blog post.