– 4: Scope and more favorable provisions

Scope

As we have seen, there has been a great deal of discussion about who falls in under the scope of the Directive. One of these relates to the situation for asy-lum seekers in closed centers. In some countries the benefits in the Directive is applied to this group and in others it is not.

We also pointed to the possible implications for the group of so-called unreturnable former asylum seekers in Norway. These are subjected to condi-tions lower than the Directive. One liberal interpretation of the Article 3 on who is of concern to the Directive one could argue that they would be entitled to full reception conditions. The reason is that their second appeal (omgjøringsbegjæringer) may have suspensive effect. According to the Odys-seus network, they qualify for being considered asylum seekers and are cov-ered by the Directive. A more narrow interpretation would consider them as having final rejections and thereby leave them outside the scope of the Direc-tive.

More favorable provisions

The Directive on Reception Conditions is a set of minimum standards. Ac-cording to Article 4 of the Directive, however, Member States may introduce or retain more favorable provisions in the field of reception conditions for asylum seekers than those enshrined in the Directive which are minimum standards. The Odysseus study confirms that all but one Member State have not lowered their standards. In other words, one of the concerns expressed over the possible «race to the bottom» and degradation of standards has so far not materialized.

On most of the issues included in the Directive, the Norwegian reception system holds a higher standard than the minimum norms agreed on by the Member States.

Articles 5 – 8: Information, documentation and movement

Information

The EU suggests practical cooperation and coordination of national informa-tion programs to asylum seekers. In Norway there was a lack of explicit in-formation about NGOs and others that may inform and guide them on recep-tion condirecep-tions. Informarecep-tion shortly after arrival was however given by an NGO, the Norwegian Organization for Asylum Seekers (NOAS), which pro-motes asylum seekers’ rights.

Documentation

According to Article 6 of the Directive, «…Member States shall ensure that within three days after an application is lodged…», the asylum seeker is pro-vided with a document issued in his or her name certifying the status as asy-lum seeker. According to Article 6§2, Member States may deviate from this principle when the asylum seeker is in detention. In Norway the three day rule is normally abided by.

Freedom of movement and detention

The use of detention in accordance with Article 7§3 of the Directive is not unusual in the EU Member States. The provision states that «when it proves necessary, for example for legal reasons of public order, Member States may

A selection of findings 75

confine an applicant to a particular place in accordance with their national law».

One discussion emanating from the Odysseus study is whether or not the material reception conditions provided for by the Directive, apply to asylum seekers who are in detention. (The study does not cover asylum seekers whose case has been finally rejected). It would seem logical that the Directive ap-plies, as it also contains rules on exceptions in the case where an asylum seeker is detained. The principle of issuance of documentation can be dero-gated from in case of detention (Article 6§2) and the main principles on mo-dalities for material reception conditions may also be derogated from if an asylum seeker is detained (Article 14§8). And, according to Article 13§2, Member States are under the obligation to provide an adequate standard of living for persons in detention. Nevertheless, a number of Member States do not consider that the Directive applies for asylum seekers in detention. The Odysseus study therefore suggests that this point be clarified by the Commis-sion and the Member States. The Court of Justice could also determine the scope of the Directive in relation to this point.

The study equally calls for improvement in relation to detention of minors, indicating that it should be abandoned altogether. The majority of States per-mits detention of minors. A few countries do not. Only two states separate minors from adults in detention.

The practice in the Member States is divergent. One country would only detain an asylum seeker for reasons of criminal investigation, criminal convic-tion or by virtue of a penal sancconvic-tion in case of unauthorized work. Another State practices systematic detention. One country detains all asylum seekers for a period of 12-18 months. According to the Odysseus study, the Directive allows for a broad interpretation and national discretion regarding the need to detain an asylum seeker for reasons of national interest.

The study points to the fact that European Convention on Human Rights has not been tried in relation to Maltese practice where the detention period sometimes exceeds 12 months. Most Member States have legislation allowing for detention less than 12 months. One Member State has legislation stating the period of detention should be as short as possible. Some Member States prohibit detention of victims of torture, rape or other serious forms of psycho-logical, physical or sexual violence.

Nine Member States do not provide legislation on alternative measures to detention such as restrictions on freedom of movement to a designated area, obligations to report to the authorities, etc.

In Norway there is no automatic detention of asylum seekers. According to the Immigration Act, detention may be applied for reasons of unclear identity, lack of cooperation in this regard or for reasons of threat to national security.

Detention may not exceed 12 weeks, but as a rule it can be renewed. Reasons of unknown identity represent the majority of such renewals. In March 2007,

new secondary legislation on the use of coercive measures in accordance with the Act on Immigration is to be adopted. Article 8 of the Directive is devoted to securing family unity. The signers are obligated to seek to hold families together during processing of their cases.

In the Norwegian immigration regulations, the protection of family unity has been absent. It is however present in a proposal for a new Requirement Specifications (Kravspesifikasjonen) from the Directorate of Immigration.