In our initial queries on the Reception Directive in Norway, we expected to find a high degree of awareness about the instrument among civil servants. To some extent our expectations were fulfilled. However, only a handful of gov-ernment employees were acquainted with the specific content of the Directive with only limited knowledge about the process of implementation in the Member states.
One should not be too surprised by this discovery as Norway is not under any obligation to transpose and implement the EU Directive. But we did meet a widespread interest in gaining knowledge about the EU instrument and its transposition into national legislation.
In this chapter we describe and analyze how the Norwegian law and softer norms stand when compared to the Directive on Reception Conditions. We also give examples from the Odysseus comparative study regarding the im-plementation in the Member States. The text is organized according to the Odysseus comparative study which will be published in 2007. Elements from the comparative study are introduced and related to the Norwegian position.
Before we start the more detailed discussions of the Directive, a few intro-ductory remarks have to be made about the transposition process in the Mem-ber States.
The Directive was implemented into the national legal systems by the adoption or adjustment of one or several laws or other regulations. An excep-tion to this was the Netherlands where the EU standards were transposed by a Ministerial Decree (Odysseus 2006:1). Some countries simply copied the whole Directive into domestic legislation. Several of these belonged to the group of newly joined Member States. Most countries, however, inserted the articles of the Directive into national legislation already in existence.
In most countries the Directive was adopted by the central governments.
There were however some exceptions. In Germany and Austria, the regions play an important role in the development and implementation of asylum law and following reception conditions. Also Italy and Belgium have similar
sys-tems with strong regional influence, however not with the same autonomy as Germany and Austria.
As a preparatory exercise to the transposition of the Directive, several Member States conducted studies regarding the legal situation on reception conditions as well as evaluating the conditions on the ground. In Sweden both of these areas were covered in a preparatory report. Here the investigators concluded that only minor changes had to be made in the national legislation.
Very limited jurisprudence existed emanating from European courts men-tioning the articles of the Directive until the summer of 2006, when the com-parative study was carried out. The majority of these cases then concerned the question of who were entitled to the reception conditions listed in the EU in-strument. Court cases included references to the various paragraphs of article 16 of the Directive which regulates the «reduction or withdrawal of reception conditions». The rulings included the exclusion of asylum seekers from the listed benefits in cases where the person was a second time applicant (The Netherlands), and the inclusion of persons that had resided in the country be-fore applying for asylum (UK). Other cases included detention and fine print decisions relevant for Article 13 second paragraph, which asks the Member States to secure an adequate standard of living (e.g. Sweden) (Odysseus 2006:8).
In Norway as in many of the EU countries, the Ministries in charge of the asylum policy have shifted over the past fifteen years. In Norway, the respon-sibility has been with the Ministry of Justice, Ministry of Municipalities and Regional Development and finally now with the Ministry of Labour and So-cial Inclusion. In Sweden, similarly, a handful of ministries have been in-volved since the beginning of the 1990s. The asylum portfolio again shifted in the fall of 2006, being transferred from the Ministry of Foreign Affairs to the newly established Ministry of Migration. Within the EU, the Member States are split into two groups on this issue. In half of the countries the Ministry of the Interior is in charge, while the rest has Ministries otherwise concerned with Social, Family, Labour Affairs (Q10).
In some countries the level of the reception conditions varied with the stages of the asylum procedure. The Norwegian norm on this is that full bene-fits are not given until the applicants leave the transit/arrival centers and are transferred to ordinary accommodation centers. This intermediate period is however meant to be very short, a rule which is followed up in practice. The transfer takes place within a couple of days, and rarely more than ten days.
Special conditions apply for asylum seekers during the very initial stage of the process also in other European countries. In the Netherlands the first two to three weeks are spent in special reception centers awaiting a first screening of their cases. Here the standards of the Directive are not applied (Odysseus 2006:9). In Lithuania, which processes only a very low number of
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tions, the government was in the process of reorganizing their initial screening centers, which had sub-level conditions.
However, there is a differentiation in benefits during what could be called the end game of the asylum procedure. By this we mean, the findings show there is a substantial reduction in benefits following a second rejection.
Whether these groups, that still may have appeals pending, fall within the scope of the Directive is a discussion we will return to. What should be noted at this point is the low level of benefits that is granted to the asylum seekers falling within the Dublin Regulation (Dublin II) who are awaiting deportation.
Details of their situation will be given later in this chapter.
This special treatment of the «Dubliners» is not unique to Norway. In Aus-tria these individuals are placed in detention and excluded from the benefits required by the Directive. In Slovenia the Dublin cases are being returned from other Member States and are de facto «subjected to reception conditions substantially inferior to normal ones reception conditions, e.g. limited access to health care and NGOs» (Odysseus 2006:11)
The countries that keep newly arrived asylum seekers confined or detained at airports and border posts under minimal conditions, may invoke Article 14 paragraph 8. Austria and the Czech Republic are among the Member States that have done so. The limit to this practice is given in the same article which states that these exceptional conditions should be allowed «for a reasonable period which shall be as short as possible» (Directive OJEU 6.2.2003:14.8).
The situation for applicants being detained – i.e. kept in closed centers without the freedom of movement – is given special attention in Article 16 and other places in the Directive. There were however two Member States that detained asylum seekers upon arrival as part of their normal procedure during the summer and fall of 2006. In the Chech Republic the new arrivals are kept in closed centers during the initial phase of the process. They were later trans-ferred to open centers. In Malta all applicants were detained. After a short period of time especially vulnerable groups – i.e. pregnant women, minors, elderly people, traumatized persons and people with disabilities were released.
The same practice is applied for seekers that are deemed to have good chances at receiving a refugee status (Odysseus 2006:12). Apart from these groups, the asylum seekers remained in detention for six to seven months during the time which the process normally lasted. It is unclear to what extent the Directive on Reception Conditons applies to asylum seekers in detention.
In general the question of combining differentiated condition levels with various subgroups of applicants is a topic of controvercy within the EU. An-other related area of discussion is the link between the EU Directive on Asy-lum Procedures (OJEU 343/2003 EC), and the Directive on Reception Condi-tions. It could be argued that neither of the instruments is sufficiently explicit regarding their application (Odysseus 2006:13).
With these introductory remarks, a backdrop has been developed that will allow us to move freely in our more detailed discussions on the list of articles in the Directive on Reception Conditions.
The presentation is organized according to the structure of the Odysseus comparative study. It starts with the general rules on reception conditions – mainly a discussion about Article 13 and what material standard is expected and how it is supplied by the receiving countries. The next part considers pro-cedural aspects of the reception conditions. Here we look at the changes in conditions depending on various stages in the processing of applications. The provision of information and the access to making a complaint against reduc-tions in reception condireduc-tions are topics that are also discussed here. The next theme is a section on the Rights and obligations of asylum seekers. In this section we discuss the standards on family life, accomodation issues, the availability of health care and the access to the labour market. The following section deals with the issue of protecting the rights of vulnerable groups. The situation for minors, elderly, women and victims of torture and violence is given special attention in the Directive on Reception Conditions. After this we comment on the exceptional modalities of reception conditions. Here we dis-cuss the use of detention, among other topics. Finally in this chapter, a few answers are given to questions regarding the organization of the system of reception conditions.