Author
The Asylum Act provides for an exhaustive list of grounds that may warrant the reduction or withdrawal of material reception conditions.[1] These consist of unjustifiably:
- Abandoning the place of residence determined by the authority without informing SEF/AIMA or without adequate permission;
- Abandoning the place of residence without informing the reception organisation;
- Failing to comply with reporting duties;
- Failing to provide information that was requested or to appear for personal interviews when summoned;
- Concealing financial resources and hence unduly benefiting from material reception conditions; and
- Lodging a subsequent application.
For the reduction or withdrawal to be enacted, the behaviour of the applicant needs to be unjustified,[2] implying the need for an individualised assessment of the legality of the decision, which is, however, not clearly stated in the law.
Reduction or withdrawal decisions must be individual, objective, impartial, and reasoned.[3] The asylum seeker is entitled to appeal the decision before an Administrative Court,[4] with suspensive effect,[5] and may benefit from free legal aid to that end.[6] Reception conditions that are reduced or withdrawn pursuant to grounds (a) to (c) above can be reinstated if the asylum seeker is found or presents themself to the authorities.[7]
Official data on reduction or withdrawal of reception conditions by SEF is not available. Nevertheless, CPR is aware of multiple instances where withdrawal of reception conditions was determined by the entity as per article 60 of the Asylum Act. CPR is however not aware of the issuance of formal decisions in such cases, and the criteria and procedures used in this regard remain unclear.
In other instances, in 2023, where CPR was ensuring the provision of reception conditions, SEF has at times sent communications to the organisation reporting that an applicant was failing to comply with the reporting duties (i.e. they missed an appointment with the authority) and suggested that CPR should determine whether to withdraw the provision of reception conditions. While data available is still limited, this has also at times happened with AIMA.[8] Given the legal framework applicable to the reduction and withdrawal of reception condition and CPR’s legal status it is hard to reconcile such a practice with the Asylum Act and with the guarantees provided by the law to the applicant.
According to the experience of CPR, where support was suspended because an applicant repeatedly failed to present themselves as required by the authorities, it was reinstated upon appearance.
Furthermore, CPR has received consistent reports of deficiencies in the provision of reception conditions by AIMA, including instances of withdrawal of accommodation immediately following notification of a negative decision (in violation of the applicable legal framework). It was not possible to assess what are the criteria used by the Agency to withdraw the provision of reception conditions in such cases.[9]
According to the data provided by ISS, out of the 2,248 persons supported by the entity in 2023, support provision was terminated in a total of 48 cases, either due to disappearance without informing the entity or due to the failure to comply with their duties of information/attend individual interviews.[10]
According to the available information, other instances of cessation of support were connected to situations where the applicant no longer lacked financial resources according to the relevant criteria (see Criteria and restrictions to access reception conditions).[11]
Criteria and restrictions to access reception conditions
The law does not provide for specific sanctions for seriously violent behaviour or serious breaches of the rules of accommodation centres and other housing provided in the framework of material reception conditions. Nevertheless, service providers are required to adopt adequate measures to prevent violence, and notably sexual and gender-based violence.[12] The law does not provide any guidance regarding the measures to be adopted.
In the case of CAR, both the Regulation of the centre and the individual contract signed between CPR and the asylum seeker include specific prohibitions of abusive and violent behaviour. Such behaviour can ultimately result in withdrawal of the support provided by CPR following an assessment of the individual circumstances and taking into consideration the vulnerability of the applicant.[13] Specific follow-up measures also vary considering the individual situation of the applicant.
In the case of CACR, while the Regulation contains similar prohibitions and age-appropriate remedial action,[14] the accommodation of unaccompanied children stems from and can only be reviewed by the competent Family and Juvenile Court in the framework of the Children and Youths at Risk Protection Act (see Legal Representation of Unaccompanied Children).
In practice, without prejudice to criminal proceedings where applicable, instances of withdrawal of support from CPR following abusive and/or violent behaviour in breach of internal rules remain rare events. For most cases, the consequences consist of a transfer to alternative accommodation to ensure the security and well-being of the remaining residents.[15] In the case of unaccompanied children, Family and Juvenile Courts generally prioritise the stability of the living environment,[16] and are extremely reluctant to uproot the child by transfer to another institution.
[1] Article 60(3) Asylum Act.
[2] Article 60(3) Asylum Act.
[3] Article 60(5) Asylum Act.
[4] Article 60(8) Asylum Act.
[5] Articles 63(1) and 30(1) Asylum Act.
[6] Article 63(2) Asylum Act.
[7] Article 60(4) Asylum Act.
[8] In the case of AIMA, similar communications also occurred in cases where the applicant missed an appointment within the requirement to themselves to SEF/AIMA monthly within the Dublin procedure. See above, the section on the Dublin Procedure.
[9] Within the context of the right of reply of the authorities to the draft AIDA report, AIMA noted that all asylum seekers are informed of the available accommodation and its conditions, and that all asylum seekers were offered accommodation. It has also noted that asylum seekers are duly informed of changes to their accommodation arrangements, and that applicants are referred to healthcare authorities. AIMA did not provide further information regarding the procedures and criteria for withdrawal of accommodation. Information provided by AIMA, 25 June 2024.
[10] Article 60(3)(b) and (d).
[11] Articles 51(1) and 56(1) Asylum Act.
[12] Article 59(1)(e) Asylum Act.
[13] The contract is currently available inter alia in Portuguese, English, French and is otherwise interpreted to the client if not available in a language that he understands.
[14] These include, by order of increasing severity, an oral warning; a reprimand; to execute a repairing task; reduction of pocket money; limitation of authorisations to leave the CACR; restriction of ludic and pedagogical activities, notably with fellow children; and transfer to another institution.
[15] According to SCML this measure is also adopted by the organisation when the behaviour of the beneficiary jeopardises the well-being of other residents and staff.
[16] Article 78(2)(e) Asylum Act provides for stability of housing as a contributing factor to upholding the best interests of the child.