EU Directive 2013/33 regulates (among other aspects) the medical care of asylum seekers and has had direct legal effect since July 2015.
The fundamental aspects of EU Directive 2013/33 regarding the medical care of asylum seekers
DIRECTIVE 2013/33/EU OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL
of 26 June 2013 laying down standards for the reception of applicants for international protection.
This directive establishes standards for the reception, care and accommodation of refugees. In particular, it regulates:
- The right to information about securing a livelihood, medical care, freedom of movement and education, free legal representation and organizations that are available to provide support. This information must be provided “in a language that the applicant understands” within no more than 15 days (Articles 5 and 6).
- The provision of benefits that enable an “adequate” standard of living that “guarantees their subsistence and protects their physical and mental health” (Articles 17 paras. 2 and 5). Benefits provided to asylum seekers may be less favorable than those provided to nationals and they can be cut if asylum seekers have sufficient own funds (Article 17 paras. 3-5). Asylum seekers can be bound to a particular location (Article 7 para. 3). Sanctions such as cuts to benefits can be made due to late submissions or in cases of serious violence, but a “dignified standard of living” must be ensured even in these cases (Article 21 paras. 2-5).
- Wherever possible, accommodation should enable people to live together (Article 12) and maintain “family unity”. Similarly, “gender and age-specific concerns” must be taken into account and measures related to “assault and gender-based violence” have to be put in place (Article 18 paras. 2-4).
Detailed regulations exist on minimum standards for people in custody (Articles 9-11), for minors – especially the right to education and training (Articles 14 and 23-24) – and for people in particular need of protection (Articles 21-22).
Medical care for people in particular need of protection
Everyone who is eligible in accordance with this law is to be provided with “necessary healthcare which shall include, at least, emergency care and essential treatment of illnesses and serious mental disorders” (Article 19 para. 1). If the person in question has sufficient funds, they should/can contribute towards the costs (Article 17 para. 3-4). However, any sanctions that are put in place should not negatively affect medical care (Article 21 para. 5). “Vulnerable persons such as minors, unaccompanied minors, disabled people, elderly people, pregnant women, single parents with minor children, victims of trafficking, persons with serious illnesses, persons with mental disorders and persons who have been subjected to torture, rape or other serious forms of psychological, physical or sexual violence” are entitled to special benefits. However, a person’s need for protection must have been assessed during reception; once this has been done, the states are then responsible for the provision of specific assistance in accordance with a person’s particular needs, even if these needs “become apparent at a later stage of the asylum procedure”. Moreover, an administrative procedure must have been put in place to make this assessment (Article 22).
Alongside the right to receive special support that also applies to minors (Articles 23-24), victims of violence are entitled to special protection so that people “who have been subjected to torture, rape or other serious acts of violence receive the necessary treatment for the damage caused by such acts, in particular access to appropriate medical and psychological treatment or care”. This treatment must be provided by staff who have received “appropriate training” and who are obliged to maintain patient confidentiality (Article 25).
The legal consequences
The directive did not gain “direct legal effect” in Germany until July 2015. However, since then, any German court has been able to enforce it. The European Commission has initiated infringement proceedings for non-implementation against the German government (as well as against 18 other European governments!) Press Release IP/15/6276 of 23 September 2015).
Since 2014, the asylum procedure has been repeatedly tightened and it is unclear how far the directive’s legal effect can be used to forestall this situation. In addition, it is also unclear in how far the “reasonable period of time” during which the assessment of special reception needs has to be undertaken (Article 22 para. 1) is still applicable. Be this as it may, expulsions and deportations cannot take place until the procedure for assessing a person’s entitlement to protection has been completed. Assessments can also be conducted by professionals who are recognized by the courts. Ultimately, the assessment procedure could also be initiated at an early stage by a person’s legal counsel. However, information would have to be provided on time and collected by a voluntary organization, as Germany does not properly fulfil its own duty to do so.
Specific procedures exist for some groups of people in need of special protection. Different methods are used to assess a person’s status as a minor. However, some of these are highly controversial (such as bone measurements) as they focus on physical characteristics while disregarding a person’s psychological and social maturity. No assessment procedure exists for “elderly people”. Pregnancy can be demonstrated relatively easily. Although methods for assessing disability do exist in the field of statutory funding, it is unclear whether they would be accepted by the asylum and immigration authorities. Until now, assessments of other groups have only been undertaken during reception interviews that have been conducted as part of the asylum application – this includes assessments of victims of trafficking, psychological or sexual violence and people with mental disorders. These assessments were not conducted by experts but by staff working for the authorities and decisions were taken in light of the completeness and plausibility of the descriptions that were provided by the people affected. Assessments of the physical effects of torture and violence, and severe physical illnesses, have only been made in hospitals located in reception facilities. These assessments took place by chance as medical examinations do not include assessments of these aspects and are only aimed at identifying certain notifiable infectious diseases.
As long as no systematic screening exists (this could only be guaranteed by the state), these assessments will have to be organized by institutions that provide assistance to refugees. Importantly, this also means that these institutions need to find and finance ‘court-proof’ professionals to conduct these assessments.
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