POST 14 OF THE SERIES OF THE ODYSSEUS BLOG ON THE PACT ON MIGRATION & ASYLUM
By Lieneke Slingenberg, Professor of Migrants and the Rule of Law, at the Amsterdam Centre for Migration and Refugee Law of the Vrije Universiteit Amsterdam
Almost eight years since the Commission issued the proposal, the recast EU Reception Conditions Directive has finally been adopted. It is the only instrument of the Common European Asylum System that has not been transformed into a Regulation under the new Pact. According to the Commission, full harmonization is not feasible nor desirable, considering the ‘current significant differences in Member States’ social and economic conditions’. Accordingly, Member States need to transpose the relevant provisions into their domestic legislation. The implementation deadline is 12 June 2026.
I have analysed the 2018 political compromise on the recast reception conditions directive before. In this blogpost I analyse the new Reception Conditions Directive, in comparison to the former Reception Conditions Directive 2013/33/EU, in order to map the changes that are required in domestic law in the Member States. I do not present a full overview of the differences between the two instruments, but focus on the core novelties. I argue that the Directive ensures increased protection for (some) applicants for international protection, for example as regards access to the labour market, representation of unaccompanied minors, and the nature of the material reception conditions. At the same time, the Directive provides Member States more room to subject applicants to a significant degree of state control, for example by increasing the possibilities for excluding applicants from the full set of reception benefits and for limiting applicants’ freedom of movement.
Scope of the Directive
Article 3 of the Directive deals with scope and (the English language version) has not been substantively changed. It still holds that the Directive applies to all third-country nationals and stateless persons who ‘make’ an application for international protection. New is that Article 26 of the Asylum Procedure Regulation now specifies that an application for international protection has been ‘made’ as from the moment applicants express in person a wish to receive international protection to one of the competent authorities under national law.
There are no further formalities, e.g. as regards a form to be submitted, information to be provided, or to make the application at a particular place. As the preamble states, the Reception Conditions Directive 2024/1346 applies ‘during all stages and types of procedures for international protection, in all locations and facilities housing applicants’ (recital 7). The Directive also applies during the screening procedure regulated in the Screening Regulation (see article 4(1)(b)).
However, Member States do not have to provide all reception conditions immediately once applicants make their application. Sometimes Member States merely have the obligation to ensure (access to) the conditions within a certain period of time. The deadlines for such obligations start running from the making, registration or lodging of the application for international protection. This is the case for the following obligations:
| Reception condition | Article | Deadline | After the application has been |
| Provide standard information relating to reception conditions | 5(1) | Three days | Made (or within the timeframe for registration) |
| Designate a representative for unaccompanied minors | 27(1)(b) | 15 working days (or, exceptionally, 25) | Made |
| Assessment of special reception needs | 25(1) | 30 days | Made |
| Equal treatment with nationals as regards recognition of diploma’s, certificates and other qualifications and experience | 17(4)(c) | Three months | Registered |
| Access to the labour market | 17(1) | Six months | Registered |
| Grant minors access to the education system | 16(2) | Two months | Lodged |
The timeframe for registration and lodging of applications is also regulated in the Asylum Procedure Regulation. The standard deadline for registering applications is five days (Article 27(1) of this Regulation). There are, however, four exceptions to this deadline: 1) when an application is not made to a competent authority, 2) where there is a disproportionate number of applications within the same period of time, 3) when persons are subjected to the screening procedure regulated in the Screening Regulation, and 4) when there is a situation of crisis or force majeure, on the basis of the Crisis and Force Majeure Regulation . Accordingly, the deadline for registering the application varies from five days (in regular cases) to five weeks (in case of screening ánd a situation of crisis or force majeure).
For lodging the application, Member States need to invite applicants to a particular place at a particular date. This needs to be done within 21 days from when the application is registered (article 28(1) of the Asylum Procedure Regulation. In case of a disproportionate number of applications within the same period of time, this needs to be done within two months (article 28(5) of the Asylum Procedure Regulation.
While much has been clarified as regards the start of Member States’ obligations to provide reception conditions, this is not the case as regards the end of such obligations. Article 3 of the new Reception Conditions Directive lays down that applicants fall under the scope of the Directive provided they ‘are allowed to remain on the territory as applicants’. Under the Asylum Procedure Regulation (EU) 2024/1348, applicants have, in general, the right to remain during the first instance administrative stage of the procedure (article 10). Appeal procedures generally have automatic suspensive effect, but there are many exceptions, for example as regards subsequent applicants, applications rejected during accelerated or border procedures, or inadmissible applications (article 68).
If there is no automatic suspensive effect, a court or tribunal needs to decide on the right to remain pending the appeal procedure. Accordingly, whether applicants fall under the scope of the Reception Conditions Directive pending their appeal procedures still depends on whether their appeal has suspensive effect, either by law, or decided by a court or tribunal. To what extent Member States’ obligations have changed in this respect depends, therefore, on the evaluation of the rather technical provisions on this in the new Asylum Procedure Regulation (see for a detailed analysis on this point the blog by Steve Peers).
Material reception conditions
Definition
Under the new Directive, material reception conditions now also include ‘personal hygiene products’, in addition to housing, food, clothing and a daily expenses allowance (article 2(7)). This inclusion is in line with the definition of ‘most basic needs’ by the CJEU (Jawo) and ECtHR (M.S.S.). Perhaps more relevant is that the Directive now also contains a definition of a ‘daily expenses allowance’ (article 2(8)). This is defined as ‘an allowance provided to applicants periodically to enable them to enjoy a minimum degree of autonomy in their daily life, provided as a monetary amount, in vouchers, in kind, or as a combination thereof provided that such an allowance includes a monetary amount’. The fact that ‘vouchers’ are mentioned separately from a ‘monetary amount’ in this definition means that it is not enough if Member States only provide vouchers. In line with the purpose of ‘enabling applicants to enjoy a minimum degree of autonomy in their daily life’ it means that applicants should have a minimum amount of cash or a monetary amount on a card that they can freely spend. This is in line with the importance that UNHCR attaches to cash-based support.
Reduction, withdrawal and exclusion
The new provisions on reduction, withdrawal and exclusion clearly show the conditional character of applicants’ right to material reception benefits. The new Article 21 now stipulates that applicants are no longer entitled to the full set of material reception benefits from the moment they have been notified of a decision to transfer them to the Member State responsible in accordance with the Asylum and Migration Management Regulation . This is a mandatory withdrawal for Member States, the Directive does not leave any discretionary room in this regard.
Article 23 sets out the criteria for Member States to withdraw all material reception conditions if applicants breach the rules of the accommodation centre or if they conduct violent behaviour. Under the current Reception Conditions Directive 2013/33/EU this is only possible if applicants ‘seriously’ breach the rules of their accommodation centre or conduct ‘seriously violent behaviour’. In the new Directive, this is possible if applicants ‘seriously or repeatedly breached the rules of the accommodation centre’ (italics LS) or have ‘behaved in a violent or threatening manner’. This significantly lowers the threshold for withdrawing material reception benefits. In addition, article 23 introduces a new ground for reducing material reception benefits, if an applicant fails to participate in compulsory integration measures.
Accordingly, Member States are required to make access to material reception benefits conditional on whether the applicant is present in the Member State that is responsible for dealing with the asylum application, and are allowed to make (full) access to material reception benefits conditional on applicants’ behaviour in accommodation centres.
However, in both cases, Member States are still obliged to ensure applicants ‘a standard of living in accordance with Union law, including the Charter, and international obligations’ (Article 21 and 23(4), see also Article 20(10)). This raises the question whether Member States can withdraw all material reception conditions. In the case of Haqbin, the CJEU ruled that respect for human dignity ‘requires the person concerned not finding himself or herself in a situation of extreme material poverty that does not allow that person to meet his or her most basic needs such as a place to live, food, clothing and personal hygiene, and that undermines his or her physical or mental health or puts that person in a state of degradation incompatible with human dignity’.
The Court concluded in Haqbin that withdrawal, even if only a temporary one, of the full set of material reception conditions or of housing, food or clothing would be irreconcilable with this requirement, ‘since it would preclude the applicant from being allowed to meet his or her most basic needs’. Importantly, the Court stressed that the provision of a list of private centres for the homeless likely to host the applicant in case of withdrawal would not alter the conclusion. According to the Court, the very fact that the verb ‘ensure’ is used means that Member States need to guarantee the required standard of living ‘continuously and without interruption’.
This means that in order to ensure a standard of living in accordance with the Charter, Member States need to provide applicants access to housing, food and clothing, continuously and without interruption. The fact that applicants who have received a transfer decision are entitled to material reception conditions in the Member State that is responsible is not enough. After all, applicants can lodge an appeal against the transfer decision and in that case the transfer needs to be suspended, in any case until a court or tribunal has decided on a request to suspend the transfer pending the outcome of the appeal (Article 43 of the Asylum and Migration Management Regulation). Accordingly, withdrawing all material reception conditions from applicants who have received a transfer decision but are not yet transferred, would preclude them from meeting their most basic needs and would violate the Charter.
In practice, this will probably mean that withdrawing the daily expenses allowance is possible, but withdrawing the other material reception conditions violates the ‘standard of living in accordance with Union law, including the Charter, and international obligations’ that Member State need to ensure.
Employment
As regards employment the new Reception Conditions Directive provides for three main changes as compared to the current directive that increase applicants’ rights. First, Member States need to ensure that applicants have access to the labour market within six months, instead of nine months. Second, this six-months deadline starts running from the date on which the application is registered, instead of lodged. As discussed above, registration takes place 21 days (under normal conditions) or two months (in case of a disproportional number of applications) before the lodging. Third, the new Directive provides for equal treatment with nationals as regards a number of employment conditions (Article 17(3) and (5) and for access to language and civic education courses (article 18). The former Directive did not provide for this.
Some of the more restrictive provisions as regards access to employment stay intact. For example, access to the labour market is still only provided under the condition that ‘an administrative decision by the competent authority has not been taken and the delay cannot be attributed to the applicant’ (article 17(1)). This means that case law on the question when delay can be attributed to the applicant remains relevant (see K.S. and others). In addition, Member States may still give priority to nationals and non-nationals with lawful residence (article 17(2)).
The directive also introduces new restrictive provisions, in the form of mandatory exclusions. Under two different circumstances, Member States are not allowed to grant access to the labour market, or, if already granted, need to withdraw. First if Member States have accelerated the examination on the merits of an application for international protection in accordance with Article 42(1), points (a) to (f) of the Asylum Procedure Regulation (Article 17(1). Secondly, Member States need to withdraw access to employment as soon as applicants have been notified of a decision to transfer them to the Member State responsible in accordance with the Asylum and Migration Management Regulation (Article 21). In the case of K.S. and others, the CJEU ruled that under the current Directive, applicants should get access to employment until they are actually transferred to the responsible Member State. In reaching that judgment, the Court referred amongst other to the obligation to respect human dignity and to the Directive’s objective to promote applicants’ self-sufficiency. Since the new Directive also seeks to promote the self-sufficiency of applicants (preamble recital 50) and ‘full respect for human dignity’ (preamble recital 75), these new mandatory exclusions from employment raise relevant legal questions. Just as regards the withdrawal of material reception conditions (see above), the complete withdrawal of access to employment might violate the ‘standard of living in accordance with Union law, including the Charter, and international obligations’ that Member State need to ensure.
Freedom of movement
The current Directive has one provision about freedom of movement, that leaves a lot of discretionary room for Member States to impose all kinds of residence restrictions. The new Directive contains no less than three provisions on this: Articles 7, 8 and 9. On the one hand, this shows the clear emphasis on possibilities for Member States to restrict applicants’ freedom of movement. On the other hand, these provisions contain more safeguards for applicants as compared to the current Directive. Another difference between the two Directives is that for two of the three residence restrictions, the new Directive explicitly stipulates that Member States are not required to take an administrative decision, which hampers the right to an appeal.
| Art | Residence restriction | Condition | Admin. decision required? | Safeguards | Consequence of non-compliance |
| 7 | Allocate applicants to specific accommodations | In order to manage their asylum and reception systems | No | Benefit effectively from rights
MS must take into account objective factors |
Losing the entitlement to material reception conditions (Art 7(4)). |
| 8 | Allocate applicants to a geographical area within their territory, that they can only leave with permission | For the purpose of ensuring the swift, efficient and effective processing of their applications in accordance with Regulation (EU) 2024/1348 or the geographic distribution of those applicants | No | Effective access to rights
Geographical area must be sufficiently large, allow access to necessary public infrastructure and may not affect the applicants’ unalienable sphere of private life |
Reduction or withdrawal of the daily expenses allowance or reduction of other material reception conditions (Art 23(2)(a)). |
| 9 | Decide that an applicant is only allowed to reside in a specific place; they can only reside elsewhere with permission | For reasons of public order or to effectively prevent the applicant from absconding, where there is a risk of absconding | Yes | Necessity condition
Decisions need to be proportionate and take into account relevant aspects of the individual situation of the applicant Right to be informed and to an appeal |
Losing the entitlement to material reception conditions (Art 9(1))
Reduction or withdrawal of the daily expenses allowance or reduction of other material reception conditions (Art 23(2)(a)) Detention, provided there is still a risk of absconding ((Article 10(4)(c)) |
The condition that there must be ‘access to necessary public infrastructure’ is an important one, but is absent in article 9. Accordingly, if applicants are required to take up residence in a particular accommodation centre, this centre does not have to be in an area that allows access to necessary public infrastructure. In connection with the severe consequences of non-compliance in case of a decision based on Article 9, and the broad definition of absconding in the Directive (Article 2(12)), this provision provides Member States with a lot of room to subject asylum seekers to significant state control. In addition, it is important how the term ‘reside’ in interpreted. According to Merriam-Webster dictionary it means ‘to dwell permanently or continuously: occupy a place as one’s legal domicile’. This would mean that spending the night somewhere else does not imply a violation to ‘reside’ in the accommodation centre. However, Article 9(3) of the Directive holds that the applicant ‘shall not be required to request permission to attend appointments with authorities and courts if the attendance of that applicant is necessary’. This seems to imply that short periods of absence of the accommodation centre for other reasons do require permission by the authorities. In that case, the situation has very much in common with cases of de facto detention.
Special needs assessment
Just as under the current Reception Conditions Directive, Member States must assess whether applicants have special needs. A relevant difference with the current Directive is that the new Directive stipulates that the assessment must be completed within 30 days from the making of the application (Article 25(1)). Accordingly, an extension of this deadline is not possible, not on grounds of a disproportionate number of applications nor in case of a situation of crisis or force majeure (see above).
(Unaccompanied) minors
As regards (unaccompanied) minors, the new Directive contains more detailed obligations for Member States. Member States need to grant minors access to the education system as soon as possible and may not postpone the granting of that access for more than two months from the date on which the application for international protection was lodged. In the current Directive, Member States are allowed to postpone access to education for three months as from the lodging of the application. Since the new Asylum Procedure Regulation now also contains clear deadlines for lodging the application (see above), the obligation for Member States has become stricter and more concrete.
Another difference with the current Directive is that there is a lot of emphasis on equal treatment with nationals for minors. Member States must grant minors ‘the same’ access to education as their own nationals (Article 16(1)) and as a rule provide education within the general education system (Article 16(2)). Only as a temporary measure and for a maximum period of one month, they may provide education outside the general education system. Likewise, as regards health care, the new Directive obliges Member States to ensure that minors ‘receive the same type of health care as provided to their own nationals who are minors’ (Article 22(2)).
For unaccompanied minors, a relevant change is that the new Directive introduces strict time limits for Member States to appoint a representative, and a maximum number of unaccompanied minors per representative (Article 24).
Conclusion
The new Reception Conditions Directive creates a number of new obligations for Member States, and makes some of the existing obligations more comprehensive. This is often done in the form of new or shorter deadlines for Member States, for example as regards access to employment, education and assessment of special needs. New obligations include the obligation for Member States to ensure that applicants have access to language courses, civic education courses or vocational training courses and are provided with personal hygiene products. The new Directive, however, also leaves ample room for Member States to subject applicants to a significant degree of state control, for example by increasing the possibilities for excluding applicants from the full set of reception benefits and by limiting applicants’ freedom of movement. In this way, the Directive increases welfare conditionality for applicants, as Member States have more possibilities, or are even obliged, to make access to the full set of reception benefits conditional on applicants’ place or country of residence or behaviour.
A standard of living ‘in accordance with Union law, including the Charter, and international obligations’ should, however, always be provided. Case law of the CJEU suggests that this means that in any case, applicants should always be provided with housing, food and clothing. With its strong emphasis on human dignity, this case law will remain relevant under the new Directive. In this interpretation, the mandatory exclusion of some applicants from employment and material reception benefits is not as strict as the text of the Directive seems to imply.
In situations of crisis or force majeure, or when a disproportionate number of persons applies for international protection at the same time, the new Directive does not provide much room for Member States to deviate from their obligations. Member States still need to provide all applicants who made their application for international protection with material reception benefits, health care, an assessment of their special needs etc. The only exceptions that are allowed relate to when applicants get access to employment and education (since deadlines for registering and lodging applications can under certain conditions be extended) and to the mode of accommodation to be provided (Article 20(10)), which provides Member States with almost the same possibilities as under the current Directive).
To conclude, the new Directive increases Member States’ possibilities to subject asylum seekers to significant state control, by making access to the full set of reception benefits conditional on asylum seekers’ compliant behaviour. At the same time, however, the Directive, interpreted in the light of relevant CJEU case law, does not leave room for policies of forced destitution. So far, it seems that the CJEU provides more protection against policies of forced destitution than against policies of containment. The question remains, therefore, whether the more comprehensive possibilities for Member States to subject applicants to severe geographical and residence restrictions in the new Directive will be limited in future CJEU case law in the light of human dignity.