A Right to Adequate Shelter for Asylum Seekers in the European Union

ABSTRACT

Asylum seekers who enter the European Union (EU) need temporary housing while awaiting the outcome of their asylum application procedures. It is unclear, however, which conditions must be fulfilled to achieve the goal defined by the EU that asylum seekers enjoy an ‘adequate standard of living’, including housing. Because this goal is only described in general terms, there are large differences in asylum seekers’ accommodation in and among EU member states. This article argues that multiple purposes would be served if the EU would adopt a right to adequate shelter for asylum seekers as a common accommodation standard with well described material conditions. In order to determine whether there would be a legal basis for a right to adequate shelter, and which conditions should be met, the article presents relevant sources of human right law and EU law. It also consults scholarly articles, NGO reports, blogs, and newspapers. An examination of the actual reception circumstances shows that several problems need to be addressed. Based on this analysis, I argue that the conditions for adequate shelter encompass safety, dignity, adequate structure, appropriate space and facilities, and temporariness.

KEYWORDS:

• Shelter
• asylum seekers
• human rights
• European Union
• adequate housing
• temporary
• women
• Covenant on Economic, Social and Cultural Rights
• minimum core rights

1. Introduction

In view of the large number of asylum seekers who enter the European Union (EU) and are in need of temporary housing,¹ it is necessary to clarify to what extent states are obligated to provide these people with accommodation, and what the quality of this accommodation should be, while they are awaiting the outcome of their asylum application procedures. European states seem unwilling, and some even unable, to provide asylum seekers with accommodation that is up to the human rights standard of ‘adequate housing’,² but applicants on the territory of a state party to the International Covenant on Economic, Social and Cultural Rights (ICESCR), which applies to all EU member states,³ are entitled to minimum core rights, including minimum core housing rights. It is important to distinguish shelter from housing so as not to erode the right to adequate housing, or to negatively affect the obligations states have accepted concerning the housing rights of their citizens and status holders, here referred to as ‘populations’.

The minimum core of the right to housing has not been defined by the CESCR and thus remains unclear. However, it is clear that the accommodation circumstances of asylum seekers in some European reception centres are not in conformity with an ‘adequate standard of living’ including housing as contained in EU Directive 2013/33.

Coupled with the implementation of the EU-Turkey Statement of 20 March 2016, the Dublin Regulation, determining that in principle the EU country of first entry has to take responsibility for the asylum procedure and that the asylum seeker has to remain in that country until a decision has been taken, has caused two problems. First, it puts a huge burden on countries in southern Europe, particularly Greece, since a large number of asylum seekers are now trapped there in overflowing reception facilities.⁴ Second, the circulation of stories among potential asylum applicants concerning better reception conditions in some EU states understandably induces them to either avoid registration in countries of first arrival or to leave them after registration for reportedly more hospitable host states.⁵ The EU wishes to avoid such secondary movement.⁶

People who enter the EU to seek asylum are usually first accommodated in reception centres. While receiving states strive to keep the time spent in such facilities as short as possible, due to several circumstances, including COVID-19, it may vary between a few weeks to several years.⁷ There is no common standard as to what the material conditions in a reception facility should look like. Endeavours to harmonise the reception system has resulted in the Common European Asylum System (CEAS).⁸ While this has secured coordination of legislation and procedures in the European Economic Area (EEA) countries,⁹ national differences in other policy areas persist.¹⁰ The actual manner in which asylum seekers are received and treated differs greatly from state to state. In some countries reception facilities are of a high standard, but in others the living conditions are neither humane nor dignified. Moreover, reception standards often differ from town to town within states.¹¹

Multiple purposes would be served if a right to adequate shelter for asylum seekers would be adopted by the EU, with clearly described material conditions. This would be in line with already existing international and European obligations. It would also create clarity and uniformity within the EU, which would discourage asylum seekers from wandering around looking for better accommodation circumstances.

The main research question here therefore is whether a legal foundation for a right to adequate shelter for asylum seekers in the EU can be found, and which material reception conditions must be fulfilled before shelter can be qualified as ‘adequate’. In order to answer this question, the following sub-questions will be addressed:

• What is shelter, to what extent does it differ from housing, and why is it important to distinguish between the two?

• What could be the legal basis of a right to adequate shelter?

• What are the principal shortcomings and problems encountered in reception facilities, and consequently, which material conditions must be fulfilled before shelter can be qualified as ‘adequate’?

1.1 Methodology and materials

The methodology used for this study includes desk research to examine, compare, and analyse the most relevant sources of international and regional human rights law. Article 11 ICESCR was taken as the point of departure since it is the oldest and best explained human rights source concerning an adequate standard of living including housing, and all EU states are parties to the Covenant. General Recommendations by UN human rights monitoring committees, and a selection of international and regional case law play a role as primary sources but are also used for more in-depth understanding on how the respective treaties should be interpreted. UN documents adopted by a variety of human rights organs, including the UN High Commissioner for Refugees (UNHCR), have also been taken into consideration, because they have paid particular attention to the situation of asylum applicants. For EU law, both primary and secondary sources have been consulted, as well as policy documents. The main focus is EU Directive 2013/33 because, similar to article 11(1) ICESCR, it contains a binding obligation to provide an adequate standard of living, including housing.

In addition, secondary sources such as scholarly books and articles on the right to housing (Buyse, Farha, Hohmann, Vols, Westendorp) and on EU migration and asylum law (Tsourdi, Zaun) have been consulted. Although obligations with regard to material reception conditions are addressed in some of this literature, there is little or no discussion about what accommodation of asylum seekers in the EU should look like in concrete terms. This paper wishes to fill that gap.

To assess the actual accommodation circumstances in European asylum reception facilities (EARFs), I have relied on NGO reports, blogs, and journalistic accounts, particularly those including empirical evidence based on interviews with asylum seekers. The aim is to give examples of the most common inadequate reception circumstances in various EU host countries. The search for this information was based, inter alia, on the terms ‘violence in reception centres’, ‘reception asylum seekers’, and ‘conditions in reception facilities’.

Since the purpose of this paper is to examine whether a legal basis for a right to adequate shelter can be found, and whether a common standard for the material conditions can be determined, irrespective of which EU state is hosting, a normative approach has been taken. Of the elements comprising an ‘adequate standard of living’, the focus was only on accommodation and connected services.

1.2 Roadmap

The paper starts with an explanation of the right to adequate housing and compares it to the meaning of shelter. Section 3 explores a possible legal basis for a right to adequate shelter. Section 4 examines the main issues concerning the actual accommodation situation of asylum applicants in order to determine the conditions for adequate shelter. The connection between issues and conditions is necessary for a proper interpretation of the right to adequate shelter. The last section contains a short conclusion.

2. Housing Compared to Shelter

In legal literature and in UN documents, the terms ‘housing’ and ‘shelter’ are sometimes used interchangeably, as if they are synonymous.¹² In the past it may not have mattered which term was used, but since the interpretation of the right to housing by the CESCR in General Comments Nos 4 and 7,¹³ in 1991 and 1997 respectively, the concept of ‘adequate housing’ has been acknowledged as a legal right, and should therefore be protected. Semantically, there is a marked difference between shelter, which is regarded as a rudimentary structure in which to live or stay, offering protection against weather conditions as well as danger or attacks, and meant for people who have no home, and housing, which refers to buildings that are intended to be lived in by individuals or families on a permanent basis.¹⁴

The importance of examining and legally defining shelter has increased because a growing number of people are in need of immediately available temporary accommodation that protects them from violence and/or weather conditions. Various groups of people need shelter, but this paper focuses on asylum applicants. The way in which these people are received in the EU raises questions about the adequacy of temporary accommodation. When is shelter suitable and in conformity with human dignity?¹⁵ Which conditions are to be considered as sub-human and thus as unacceptable, especially in EU countries, which are all are party to the ICESCR and to the Charter of Fundamental Rights of the European Union (CFR), as well as member states of the Council of Europe (CoE)?

Adopting and defining a right to adequate shelter would be advantageous both for asylum seekers and EU member states. For the people concerned, it would hopefully mean an improvement of their living situations; many are currently accommodated in sub-human circumstances. For states it would provide clarity and end the existing diversity and uncertainty as to what is expected of them in terms accommodation conditions. In addition, a common European standard may prevent secondary movement.¹⁶

Were adequate shelter to be defined as a normative standard, it would be crucial to clearly distinguish it from the right adequate housing so as not to detract from what has been achieved over the past decades. According to the CESCR, housing is much more than ‘ …  having a roof over one’s head’.¹⁷ To be ‘adequate’, seven conditions must be fulfilled: legal security of tenure; availability of services, materials, facilities, and infrastructure; affordability; habitability; accessibility; location; and cultural adequacy.¹⁸ Some of these conditions, or elements of them, are also relevant in the case of shelter, but most are not applicable.¹⁹ Therefore interpretive work needs to be done regarding the right to shelter.

While the conditions listed by the CESCR are invaluable for establishing the content of adequate housing in general, a women’s and a children’s perspective seems to be missing. On average, there is a noticeable difference between men’s and women’s financial ability to obtain housing. Furthermore, inadequate housing and homelessness has a different impact on women due to the existing stereotypical division of work and traditional gendered ideas.²⁰ The fact that women are often dependent on others for their housing may cause vulnerability to abuse, paired with the financial inability to leave an abusive relationship.²¹ That is why safety, in the sense of protection against domestic violence, is an additional condition for adequate housing for many women and children for whom home is not a safe place.²² This susceptibility to violence is also a factor that needs to be taken into account when the conditions for adequate shelter are considered.²³

A major difference between states’ obligations in respect to housing and shelter is that while adequate housing may be achieved by progressive realisation,²⁴ leaving states some discretion as to the pace at which the housing circumstances of the population are improved, providing shelter is an immediate obligation because homelessness must be avoided.²⁵

Furthermore, states do not have an obligation to provide their populations with housing, but they have to take legal and other measures to facilitate people’s fulfilment of their housing rights by themselves, only stepping in if people are unable to secure adequate housing.²⁶ States’ obligations are far more direct when it comes to provision of shelter, because a considerable number of refugees do not have the financial means to obtain housing and any significant number of homeless people on the territory of a state is regarded as a violation of article 11(1) ICESCR.²⁷

3. A Legal Basis for the Right to Adequate Shelter

This section will explore international instruments that may contain a legal basis for a right to adequate shelter and then look into regional European documents that may serve as such. Besides treaties, secondary legal instruments, case law, and soft law will also be examined.

3.1 Minimum core rights and obligations

The most important international legal source dealing with the right to housing is article 11(1) of the ICESCR.²⁸ This provision concerns an adequate standard of living, and housing is one of its elements. Its general description of an adequate standard of living seems to make it suitable as the legal basis for a right to adequate shelter, particularly if combined with the principle of non-discrimination and states parties’ obligation to immediately fulfil minimum core rights.

The prohibition of discrimination of any kind is included in article 2(2) ICESCR, which lists national origin as one of the prohibited grounds of discrimination. An explicit exception is made in article 2(3) for developing states, which may determine to what extent they will grant non-nationals the same economic rights as nationals,²⁹ but this is not relevant here because the focus is on developed European states.³⁰

The CESCR has stated that in the interest of promoting general welfare, differential treatment – meaning less favourable treatment of non-nationals – is sometimes allowed, but there should be reasonable and objective grounds for such a distinction.³¹ The travaux préparatoires show that the drafters were in particular referring to non-nationals’ ability to participate in economic activities, such as employment and related rights. In terms of access to shelter, it would be difficult to come up with reasonable and objective reasons to differentiate between the homeless on a state’s territory, especially since asylum seekers – at least for the duration of the asylum application procedure – are allowed to stay on the territory. In regard to the right to adequate housing, financial and organisational constraints (an insufficient number of houses, for example) may allow states to differentiate between citizens – for whom they are expected to fulfil the relatively high standard of adequate housing in Europe – and non-citizens, for whom it is uncertain whether they will be allowed to stay and who may suddenly enter a country in large numbers.³² This does not mean, however, that asylum seekers are not entitled to adequate temporary accommodation, because in any case the minimum core rights of everyone on a state’s territory should be guaranteed.³³

Minimum core rights are basic needs that form the essential part of a right, without which a human being cannot function or survive. In extreme cases, the very right to life may be at stake.³⁴ Unfortunately, in its General Comments Nos 4 and 7, the CESCR did not determine what should be considered as the essential part of the right to housing.³⁵ In General Comment No 3, the CESCR focuses on minimum state obligations rather than on minimum rights, and comes to the conclusion that core obligations ensure the satisfaction of minimum essential levels of each of the rights contained in the Covenant. Such obligations should be carried out irrespective of a state party’s financial situation or level of development.³⁶ According to the Committee, ‘ …  a State Party in which any significant number of individuals is deprived  …  of basic shelter and housing  …  is prima facie, failing to discharge its obligations under the Covenant’.³⁷ The core obligations give direction to what states need to do to protect people from the total lack of enjoyment of a certain right.³⁸ For asylum seekers who enter Europe, this would entail that states parties at the very least are obliged to provide with basic shelter in order to protect them from homelessness.

Another indication of what states should provide can be found in para 7 of CESCR General Comment No 4, where it is specified that ‘housing’ means a place where a person can live in security, peace, and dignity.³⁹ Although this is stated in the context of housing, it also has to be the core of shelter; otherwise the very concept of shelter as a safe haven offering basic protection would be rendered meaningless.

The obligation to realise core rights for everyone is stressed by the Committee in its Concluding Observations concerning European States. The CESCR expresses concern that asylum seekers are housed in substandard conditions and urges states parties to increase numbers of reception centres and improve the living conditions within such centres.⁴⁰ States are reminded that under the Covenant they have a duty to provide all persons under their jurisdiction with the minimum essential levels of all the rights contained in the treaty, including housing.⁴¹ The Committee also reminds states of their duty to provide adequate healthcare access to asylum seekers, which is especially relevant in view of COVID-19.⁴²

The idea of core obligations is reiterated in the CESCR Statement on Duties of States towards refugees and migrants under the ICESCR.⁴³ The minimum essential levels of all rights contained in the Covenant should be preserved in all circumstances and should also be provided to the large groups of asylum seekers that may suddenly fall under the jurisdiction of the states parties. Lack of resources is not accepted as an excuse to not fulfil this obligation, and European states that claim they do not have the financial means to accommodate asylum seekers in an adequate manner are referred to other member states of the EU for cooperation and financial assistance.⁴⁴

The United Nations High Commissioner for Refugees (UNHCR) has drawn up specific reception standards for asylum seekers in the European Union.⁴⁵ The UNHCR’s point of view is that although reception standards may vary from one country to another, asylum seekers should be received in circumstances adequate for the country in which they are seeking asylum.⁴⁶ These recommendations are made to EU member states, where standards of living are high, and the UNHCR acknowledges that these standards may not be attainable in less developed countries.⁴⁷ The UNHCR refers to article 11 ICESCR and claims that asylum seekers are entitled to basic housing and that states are responsible for it, although they may leave the actual reception to NGOs. The conditions of reception centres should fulfil the minimum standards, including basic facilities.⁴⁸ Special attention should be paid to female asylum seekers; single women must be provided with separate and safe accommodation.⁴⁹

According to the UN General Assembly New York Declaration for Refugees and Migrants, refugees and asylum seekers are rights holders who are entitled to ‘ …  adequate, safe and dignified reception conditions’ in the host countries. The specific needs of women and girls should be taken into account, and states have an obligation to provide all asylum seekers with access to adequate shelter, among other facilities.⁵⁰

3.2 Rights and obligations under European law

The Council of Europe is the most relevant regional organisation for human rights protection, and economic and social rights are protected by the CoE’s (Revised) European Social Charter (RESC).⁵¹ I will therefore examine this treaty first, before discussing the relevance of the Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR),⁵² and then the Charter of Fundamental Rights of the European Union (CFREU).⁵³

3.2.1 Council of Europe

RESC obligations are monitored by the European Committee of Social Rights (ECSR) by commenting on state reports,⁵⁴ and making recommendations on complaints submitted to the Committee by NGOs in the context of the optional collective complaints procedure.⁵⁵ A considerable proportion of complaints that have been examined by the ECSR deal with the right to housing.⁵⁶ The ECSR interprets the right to housing contained in article 31⁵⁷ of the RESR in line with the interpretive work done by the CESCR in its General Comments Nos 4 and 7.⁵⁸ Unfortunately, not all states parties to the RESC are bound by article 31.⁵⁹

The decision in Defence for Children International (DCI) v the Netherlands⁶⁰ may shed some light on the importance of the RESC for asylum seekers in countries that have bound themselves to article 31. In this case, children who were not lawfully residing in the Netherlands were excluded from the right to housing. According to DCI, the Netherlands was specifically violating paragraphs (1) and (2). The ECSR decided that the Netherlands did not act in violation of article 31(1) since this article did not apply; states have a right to determine their immigration policies. Because the Netherlands is also bound by the Convention on the Rights of the Child, the state should provide basic living conditions to children, regardless of their status, although it is not bound to provide adequate housing to aliens whom they wish to return to their country of origin.⁶¹

In view of article 31(2), however, the ECSR did find a violation on the part of the Netherlands. According to the Committee, prevention and reduction of homelessness is aimed at categories of vulnerable people. This entails a duty to provide emergency and longer-term measures like access to shelter to prevent people being forced to live on the streets. The Committee considers the right to shelter as closely connected to the right to life and crucial for human dignity. That is why shelter should be provided irrespective of a person’s (or child’s) residence status.⁶² Unfortunately, the Committee did not define the right to shelter.

Although the right to housing is not contained in the ECHR, the European Court of Human Rights (ECtHR) has interpreted the scope of certain provisions in the ECHR so widely that housing issues have come up in the context of the complaints procedure in respect of other rights that are contained in the Convention.⁶³ For instance, decisions concerning article 8 on the right to respect for private and family life have been interpreted to include respect for a person’s home, although not to a right to housing per se.⁶⁴ Arguably, asylum seekers would also be able to rely on article 8 if their privacy and family life are threatened because they have been housed in inadequate shelter conditions. That they can also rely on article 3 became obvious in MSS v Belgium and Greece.⁶⁵ According to the ECtHR, Greece, as the state of first entry, and Belgium, as the state that transferred the applicant to Greece, had both violated article 3 of the ECHR because the material conditions in Greek reception and detention centres were so appalling that they could be considered as inhuman or degrading treatment.⁶⁶ Asylum seekers generally either had to live on the streets and fend for themselves, or were housed/detained in cramped spaces where they had to sleep on dirty mattresses or on the bare concrete floor with insufficient blankets during cold weather. Furthermore, sanitary facilities were in bad repair and dirty, and access to clean water was insufficient. Yet the Court does not explain the scope of the right to accommodation of asylum seekers.⁶⁷

3.2.2 European Union

With the entry into force of the Treaty of Lisbon in 2009, the Charter of Fundamental Rights of the European Union (CFR) became binding upon EU states.⁶⁸ Although the CFR does not contain a provision dealing with the right to housing, it has several provisions of potential importance for asylum seekers.⁶⁹ Similarly to article 8 of the ECHR, the CFR determines in article 7 that everyone is entitled to respect for private and family life, which includes the home.⁷⁰

If we turn to secondary legislation focused on the reception of asylum seekers, some interesting developments can be discerned. The point of departure of the Reception Conditions Directive 2013/33/EU (Recast) is that member states are first of all bound by the international instruments they have ratified.⁷¹ In particular, the standards set by the 1951 Refugee Convention and the 1967 New York Protocol are to be taken into account,⁷² and furthermore the fundamental rights laid down in the CFR must be applied.⁷³ The aim of the Directive is to determine common standards within EU member states that can ensure that asylum seekers will enjoy a dignified standard of living and that the living conditions are comparable among the EU members.⁷⁴ What constitutes a dignified standard of living is largely left to the discretion of the EU member states, however.

The European Asylum Support Office (EASO) has adopted guidelines on reception conditions that offer clarification and support in the implementation of the Directive.⁷⁵ Strangely enough, as the legal framework that forms the basis of the Guidance, only the UN Convention on the Rights of the Child and the ECHR are mentioned in addition to the Directive and the CFR. There is no mention of obligations under the ICESCR.⁷⁶ As far as accommodation for asylum seekers is concerned, EU member states are requested to pay specific attention to location, allocation, infrastructure of housing facilities, security of housing facilities, common areas within, sanitation, maintenance, and communication equipment and services. The Guidance includes indicators and good practices in order to enable member states to check whether they are acting in accordance with agreed standards and to learn from each other.⁷⁷

Since the ECtHR decision in MSS v Belgium and Greece it has become clear that the rule to transfer asylum seekers to the state of first entry in the Dublin II Regulation⁷⁸ does not absolve EU states from their responsibility to investigate whether the living conditions in that state are in line with human rights.⁷⁹ As far as asylum seekers’ accommodation is concerned, it is determined that irrespective of the form that the accommodation may take, family life shall be protected, and that concerns about discrimination or violence against women shall be taken into consideration. Furthermore, moving applicants from one facility to another should be avoided if this is not strictly necessary.

In exceptional cases and for a reasonable period of time, member states may derogate from the reception conditions mentioned in article 18 of Directive 2013/33/EU when there is a temporary shortage of housing capacity.⁸⁰ However, the case law of the Court of Justice of the EU (CJEU) makes clear that under all circumstances homelessness should be avoided, and that if normal reception facilities are saturated, asylum seekers should receive an amount of money that will enable them to live somewhere in accordance with the minimum standards laid down in the Directive until they can make use of the usual accommodation provided for asylum seekers.⁸¹

Interestingly, the Directive will not apply in the event of a mass influx of asylum seekers; in such a case Directive 2001/55/EC is applicable.⁸² Regrettably, neither Directive specifies what asylum seekers’ accommodation should look like in practice. Directive 2001/55/EC stipulates that applicants enjoying the temporary protection of a member state should have access to ‘suitable accommodation’, but does not clarify what that means.⁸³

EU states faced with large groups of asylum seekers receive money out of the Asylum, Migration and Integration Fund,⁸⁴ so lack of financial means should not be an excuse for inadequately accommodating asylum seekers.

3.3 Concluding remarks

It can be concluded from the above that ICESCR article 11(1) contains a legal basis for a right to adequate shelter. This provision broadly covers the right to an adequate standard of living and has to be read in connection with the prohibition of discrimination on the basis of nationality, and the obligation to provide all people with the minimum core of the rights contained in the Covenant. The ECSR explicitly interprets article 31 of the RESC in line with article 11(1) ICESCR and the CESCR’s General Comments. EU secondary sources, in particular EU Directive 2013/33, make it clear that the EU strives to harmonise reception standards for asylum seekers; homelessness has to be avoided and they should be provided with an adequate standard of living, including suitable accommodation.

4. Accommodation of Asylum Seekers in Practice

Like housing, shelter is not just about having a roof over one’s head, but is rather about adequate shelter, which entails that certain conditions must be fulfilled in accordance with the basic tenets of article 11(1) ICESCR: it must be secure, dignified, and suitable. It is clear that the living conditions of asylum seekers vary greatly among European states and that the most dire situations can be found in the South. It would be a fallacy to only focus on those states, however, since significant problems can also be found in the rest of the EU. It is not the intention of this section to give an exhaustive overview of all issues or to discuss all member states, but to focus on the principal problems that arise in order to determine the conditions that, if fulfilled, would render shelter adequate in all EU states.⁸⁵

4.1 Security

Asylum seekers have fled their homes to escape danger of various kinds. More often than not, they, or members of their families, were victims of violence or lived with the threat of violence.

What they seek is a safe haven, where they can live without fear for their lives or limbs. Yet violence is one of the biggest problems within reception facilities.⁸⁶ People from different sides of the same conflict may be forced to live together. Inadequate resources, insufficiently trained staff, frustration, boredom, and a lack of autonomy can create a hostile atmosphere that may lead to harassment or attacks.⁸⁷ Tensions, pressures, and individuals’ tempers can create a volatile environment.⁸⁸ Xenophobic and racist attacks on EARFs or on individual asylum seekers can contribute to creating an insecure situation.⁸⁹

While physical abuse is mostly suffered by men, women and girls are susceptible to sexual and gender-based violence (SGBV).⁹⁰ A study among stakeholders in eight European host states identified several causes for the large-scale occurrence of SGBV.⁹¹ Frustration and stress, different cultural or ethnic backgrounds and practices, lengthy asylum procedures, communication problems among asylum seekers and between asylum seekers and staff, and bad accommodation were mentioned.⁹²

The risk of SGBV increases when men and women have to share bathrooms, shower facilities, and bedrooms with unrelated adults.⁹³ In 2017, 28% of SGBV survivors experienced inappropriate behaviour, sexual harassment, and sexual attacks after arriving in Greece.⁹⁴ The situation was the worst in the EARFs of Moria (Lesbos) and Vathy (Samos). It was reported that girls and women were afraid to use the bathrooms, especially after dark, because of lack of illumination and insufficient police patrols.⁹⁵ Similar fears were expressed by female asylum seekers in Germany⁹⁶ and in the Netherlands, where unaccompanied girls and women may risk of sexual harassment or rape if they are housed with single men.⁹⁷

SGBV can include sexual harassment, rape, domestic violence, early and forced marriage of girls,⁹⁸ and harmful cultural practices.⁹⁹ In EARFs there is often not enough attention to preventing SGBV. Safe spaces for women and girls may be lacking, as well as the services, such as trained personnel and translators, needed to act upon instances of violence.¹⁰⁰

If EU states wish to provide asylum seekers with adequate shelter, the first condition that needs to be fulfilled is safety. To a large extent, SGBV and other forms of violence can be prevented by taking measures and precautions, including housing unaccompanied women and girls in separate centres or parts of centres. In addition, staff skills should be improved and meetings should be organised during which staff and asylum seekers are informed about the rules and regulations, particularly as regards which behaviours are unacceptable. It should be made clear where people can complain should anything untoward happen. As a rule, facilities should be well-lit after dark, security surveillance should be present 24/7, and translators should be available in case an applicant wishes to report an incident.¹⁰¹ Without taking the necessary precautions to protect asylum seekers, especially those vulnerable to abuse and sexual harassment, the condition of safety will not be fulfilled.

4.2 Dignity

Asylum seekers have had to leave behind their homes, families, communities, culture, language, religion, and many other determining elements of their identity. In addition, they may have endured inhumane treatment and humiliation, which negatively affects their sense of human dignity. When a highly diverse group of people is confined within a reception facility, all kinds of problems can arise; previous identities, routines, or habits may be challenged or rendered meaningless by others or by the environment.¹⁰² Issues like not being allowed to cook your own food,¹⁰³ having to eat at time slots dictated by others,¹⁰⁴ and being forced to share a room with unrelated adults¹⁰⁵ chip away at people’s feeling of self-respect and psychological well-being. Host states are in a position to give asylum applicants back at least part of their dignity by receiving them in a culturally adequate way and protecting the subjective facets of their identity in EARFs. This can be done by having effective meetings between staff and residents during which cultural differences are discussed and any cultural or religious barriers reduced by insisting and enforcing that residents and staff respect each other’s habits concerning privacy and family life,¹⁰⁶ but also by measures such as reserving a specific space for religious expression or providing the possibility to cook one’s own food.¹⁰⁷

4.3 Suitability

It is clear that EARFs will not be on the same level with adequate housing, but they should provide ‘suitable accommodation’. In most official documents and scholarly articles, this concept remains vague and gives little direction on what should be expected of accommodation standards.¹⁰⁸ In this paper, suitability is understood as contributing to everyday well-being. In this sense, the main aspects that determine suitability seem to concern the structure in which people are housed, the amount and appropriateness of space allotted to families and individuals, the presence of facilities including sanitation and access to healthcare, and the time spent in a shelter. Each of these aspects will be discussed in more detail below.

An adequate structure ensures that a shelter will protect against weather conditions and health hazards. Because, in Europe, the worst of the ‘refugee crisis’ seemed to be over in 2017, many centres were closed all over the continent; when the influx increased again, there were not enough places. In Belgium for example, new centres were opened that consisted of tents and shipping containers.¹⁰⁹ Asylum seekers who had contracted COVID-19 were forced by the police to remain on board a bus without toilets in Udine, Italy in September 2020.¹¹⁰ In Greece, inadequate structures are found on the islands of Samos, Chios, and Lesbos in particular.¹¹¹ Tents and Rubb Halls do not protect against the cold or humidity.¹¹²

For an EARF structure to be suitable, the climate and the seasons of the location need to be taken into consideration. Furthermore, attention needs to be paid to cleanliness and hygiene; mould, asbestos, and vermin increase the chance of epidemics and respiratory diseases.

Enough and appropriate space is another aspect of suitability for several reasons. Overcrowding is a major problem in southern European centres.¹¹³ Greek EARFs were among the most overcrowded in 2020.¹¹⁴ In Porto Empedocle, Italy, 520 people were housed in a structure without windows that had a maximum capacity of 100 in July 2020.¹¹⁵ COVID-19 has made matters worse because overcrowding makes maintaining physical distance impossible.¹¹⁶ Adequate space can help prevent violence because much stress and aggression can be avoided if separate spaces or even different reception areas are reserved for known enemies, as well as for unaccompanied girls and women, and other vulnerable groups. Enough space is also important for health reasons, particularly to avoid mental stress and the outbreak of contagious diseases such as COVID-19. The WHO has drafted guidelines indicating the amount of space needed in this regard, especially if space has to be shared with unrelated others.¹¹⁷ In connection to dignity, space is needed to maintain the family unity.¹¹⁸

Adequate facilities are also an indispensable aspect of suitability. Facilities are understood in a broad sense, including services, hygiene, access to healthcare, equipment, furniture, and paraphernalia.¹¹⁹ Many EARFs lack enough basic facilities such as electricity, toilets, showers, heating, and potable water.¹²⁰ Bathrooms and showers may not be gender-segregated and those that are available may be substandard, unhygienic, or lacking in privacy.¹²¹ There may be shortages of beds, blankets, and specific facilities for menstruating or lactating women and girls.¹²² For an EARF to be suitable, a bed with enough bedding should be available for each asylum seeker. In addition, it would be desirable if every person or family to have a lockable cupboard for personal effects.¹²³ Bedroom and bathroom doors that can be locked are a prerequisite where unrelated men and women have to live together.¹²⁴ For menstruating girls and women, appropriate amounts of sanitary towels and tampons should be accessible.

Temporariness is another aspect that influences the suitability of a shelter, since such circumstances should only be endured for a short period of time. Although it is the intention of host states that EARFs only offer temporary accommodation, in reality asylum seekers can spend months or even years in them.¹²⁵ Besides the fact that humane treatment demands expeditious decisions, the stay in an EARF should be as short as possible because the quality of the accommodation is not equal to the adequate housing standard. Furthermore, people should not be moved from one shelter to another without any obvious reason; it is preferable that they stay in one facility until a decision on their status has been taken.

The shelter provided by EARFs will never be ideal, but if certain aspects of suitability are taken into account, living conditions will greatly improve.

5. Conclusion

Shelter is about the essentials of human accommodation: protection of physical and mental well-being. It is meant to be temporary, unlike housing, which concerns permanent habitation. As interpreted by the CESCR in General Comment No 4, asylum seekers who enter the EU are not entitled to the right to adequate housing but they do have a right to accommodation.

While the EU has managed to achieve legal and organisational harmonisation of asylum application to a certain extent, there is no common standard that determines what asylum seekers’ accommodation should look like. Multiple purposes would be served if a right to adequate shelter for asylum seekers, with clearly determined material accommodation conditions, were adopted and implemented in the EU.

The question this paper seeks to answer is whether a legal foundation for a right to adequate shelter for asylum seekers in the EU can be found, and which conditions must be fulfilled before shelter can be qualified as ‘adequate’.

Examination of international and European sources shows that article 11(1) of the ICESCR and EU Reception Conditions Directive 2013/33/EU (Recast) can serve as a legal basis for a right to adequate shelter, because both include an obligation to provide an adequate standard of living, including housing. In line with the interpretation by the CESCR, which is followed by the Council of Europe and the EU, the minimum core obligation in respect of housing rights entails that homelessness of vulnerable people must be prevented, without any distinction in terms of nationality. This puts a duty on states to provide temporary shelter for asylum seekers to avoid people having to live on the streets.

With a focus on the principal problems encountered, analysis of the actual accommodation circumstances of asylum seekers, which differ greatly both among and within states, shows that several conditions must be fulfilled before shelter can be called adequate. First, it is unacceptable that asylum seekers may be faced with violence in the very centres where they seek refuge. That is why safety would be the most important condition.

Dignity is next. While this is a fluid concept interpreted in multiple ways, for asylum seekers who have left home and hearth behind, dignity is connected to identity and self-esteem as well as material conditions. Raising awareness of and accommodating cultural differences in EARFs would greatly contribute towards applicants regaining dignity as human beings after the traumatic experiences they have been through.

Suitability of the shelter is the third condition, but it is composed of several aspects that contribute to the general well-being of the people staying there. In view of the main problems encountered, it would seem that for asylum seekers it is most important that they are received in an adequate structure that protects against the weather, where there is enough and appropriate space (especially since physical distance can be required due to the COVID-19 pandemic), where basic facilities, including sanitation and access to healthcare are present, and where they will stay only temporarily before they learn whether they will be allowed to remain in the host country. Undoubtedly further conditions would make accommodation in EARFs better, but if these conditions were fulfilled all over Europe, that would be a major step forward.

The situation in countries in Southern Europe, who have to deal with the highest number of asylum seekers, is very different compared to states in the West and North. Still, based on the principle of (financial) solidarity, the standard of accommodation in EARFs should be the same everywhere.

Notes

1 The term ‘asylum seeker’ or ‘asylum applicant’ is used to indicate persons ‘ …  whose claim to international protection is being individually considered under either the 1951 [Refugee] Convention and the 1967 Protocol, or any arrangement for complementary forms of protection’: UNHCR, Reception Standards for Asylum Seekers in the European Union (2000) 6. The number of asylum seekers entering the EU decreased in 2020 due to the COVID-19 pandemic, but was estimated at 417,000 that year: Eurostat <https://ec.europa.eu/eurostat/web/products-eurostat-news/-/edn-20210618-1> accessed 1 August 2021. With the Taliban taking control of Afghanistan, and travelling restrictions being lifted to some extent, numbers rapidly rose again. There was an increase of 58% in September 2021 compared to September 2020 and with 21% compared to August 2021: Eurostat: <https://ec.europa.eu/eurostat/web/products-eurostat-news/-/ddn-20211222-2> accessed: 5 February 2022.

2 The right to adequate housing was authoritatively interpreted by the UN Committee on Economic, Social and Cultural Rights in General Comment No 4, 1991.

3 List of ratifications/accessions <https://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-3&chapter=4&clang=_en> accessed 9 February 2022.

4 Greek Council of Refugees, “Borderlines of Despair: First-line reception of asylum seekers at the Greek borders,” Social Change Initiative (2018) 3 <www.gcr.gr/media/k2/attachments/SCIZReportZfinalZPDF.pdf> accessed 1 August 2019; Toon Beemsterboer, 'Het kamp op Lesbos was nog nooit zó vol' [The camp on Lesbos has never been so full' NRC (Amsterdam, 13 September 2019).

5 Jan-Paul Brekke and Grete Brochmann, ‘Stuck in Transit: Secondary Migration of Asylum Seekers in Europe, National Differences, and the Dublin Regulation’ (2015) 28(2) Journal of Refugee Studies 149.

6 EU Directive 2013/33 (recast), preambular para 12; Brekke and Brochmann (n 5) 148; Evangelia Tsourdi, ‘Reception Conditions for Asylum Seekers in the EU: Towards the Prevalence of Human Dignity’ (2015) 29(1) Immigration, Asylum and Nationality Law 10.

7 AIDA Asylum Information Database, 'Housing out of reach? The reception of refugees and asylum seekers in Europe' 30 April 2019. <https://asylumineurope.org/wp-content/uploads/2020/11/aida_housing_out_of_reach.pdf> accessed 15 September 2019. AIDA 'Asylum Adjourned - the situation of applicants for international protection in 2020' (19 July 2021) <https://ecre.org/asylum-adjourned-the-situation-of-applicants-for-international-protection-in-2020/> accessed 4 August 2021.

8 The Common European Asylum System (CEAS) is supported by the following EU legislation: (1) the Asylum Procedures Directive (recast) (Directive 2013/32/EU), (2) the Reception Directive (recast) (EU Directive 2013/33), (3) the Qualification Directive (recast) (Directive 2011/95/EU), (4) the Dublin Regulation (recast) No 604/2013, establishing the criteria and mechanisms for determining the Member State responsible for examining an application for international protection lodged in one of the Member States by a third-country national or a stateless person, (5) the revised EURODAC Regulation for the comparison of fingerprints for the effective application of Regulation (EU) No 604/2013.

9 The EEA consists of the Member States of the EU and Iceland, Liechtenstein, and Norway.

10 Brekke and Brochmann (n 5) 160.

11 European Parliament, DGIP, ‘Reception of Female Refugees and Asylum Seekers in the EU: Case Study Belgium and Germany’ (2016) 13 <www.europarl.europa.eu/RegData/etudes/STUD/2016/571364/IPOL_STU(2016)571364_EN.pdf> accessed 5 October 2020.

12 For instance, in the Vancouver Declaration on Human Settlements it is stated in section III para 8 that ‘[a]dequate shelter and services are a basic human right’ (Report of Habitat: United Nations Conference on Human Settlements, Vancouver, 31 May to 11 June 1976), and the UN General Assembly proclaimed 1987 to be the International Year of Shelter for the Homeless (UN doc A/RES/37/221, International Year of Shelter for the Homeless, 20 December 1982), while it is clear that in both cases housing is meant.

13 UN doc E/1992/23, CESCR General Comment No 4 on adequate housing, 12 December 1991 and UN doc E/C.12/1997/4, General Comment No 7 on forced evictions, 16 May 1997.

14 See e.g. Oxford Advanced Learner’s Dictionary and Webster’s Universal Dictionary and Thesaurus.

15 In this paper, human dignity is understood as the inherent right to be valued and respected as a person. As such it is the underlying concept of all human rights. See Christian Tomuchat, Human Rights, Between Idealism and Realism (OUP 2010) 2–3.

16 According to Zaun, the most important aim of the CEAS is to avoid secondary movement: Natascha Zaun, ‘Why EU Asylum Standards Exceed the Lowest Common Denominator: The Role of Regulatory Expertise in EU Decision-making’ (2016) 23(1) Journal of European Public Policy 143.

17 CESCR General Comment No 4, The Right to Adequate Housing, 1991, in which these conditions are explained in detail in para 7.

18 Ibid. para 8.

19 Elements or variations of the conditions of availability of services, facilities, habitability, location, and cultural adequacy are also important for shelter, but legal security of tenure, the availability of building materials, certain facilities and infrastructure, affordability, accessibility, location in the neighbourhood of work and markets, and cultural adequacy in the sense of being able to build in accordance with cultural habits, are typical of adequate housing.

20 The CESCR drew states’ attention to this stereotypical thinking in its General Comment No 4, para 6 of 1991 by explaining that ‘While the reference to “himself and his family” [in article 11(1) of the ICESCR] reflects assumptions as to gender roles and economic activity patterns commonly accepted in 1966 when the Covenant was adopted, the phrase cannot be read today as implying any limitations upon the applicability of the right to individuals or to female-headed households or other such groups’. According to Chan Kam Wah and Patricia Kennett, ‘familial ideology’ underpins the housing system. Housing policy and planning and the distribution of housing are based on the idea of the family as a unit. Social housing policy may give priority to families while individuals living alone may be marginalised, especially single women: Patricia Kennett and Chan Kam Wah (eds), Women and Housing: An International Analysis (Routledge 2011) 6.

21 Men may also be victims of domestic abuse, but in the majority of the cases victims are female and perpetrators are male. Human Rights Council, Annual full-day discussion on the human rights of women, Panel 1: Eliminating and preventing domestic violence against women and girls, Geneva 19 June 2015.

22 See Ingrid Westendorp, Women and Housing: Gender Makes a Difference (Intersentia 2007).

23 While the rights to shelter of female asylum applicants will be discussed below, the situation of children seeking asylum is so complex and specific that their situation is only referred to occasionally. Children’s right to shelter warrants a separate study.

24 CESCR General Comment No 3, The nature of States parties’ obligations under article 2(1) (1990) para 9.

25 See section 3.1 on minimum core rights and obligations.

26 CESCR General Comment No 3 (n 24) para 9; Matthew Craven, The International Covenant on Economic, Social and Cultural Rights; A Perspective on its Development (Clarendon Press 1998) 330–31.

27 CESCR General Comment No 3 (n 24) para 10.

28 ICESCR, art 11(1) reads in part: ‘The States Parties to the present Covenant recognize the right of everyone to an adequate standard of living for himself and his family, including adequate food, clothing and housing and to the continuous improvement of living conditions.’

29 The Limburg Principles on the Implementation of the International Covenant on Economic, Social and Cultural Rights, principles 42 and 43, contained in UN doc E/CN4/1987/17, Annex.

30 Ben Saul, David Kinley and Jacqueline Mowbray, The International Covenant on Economic, Social and Cultural Rights: Commentary, Cases, and Materials (OUP 2014) 217. Moreover, in its Statement on Duties of States towards refugees and migrants under the ICESCR, the Committee has made it clear that the exception for developing states only applies to economic rights, in particular the right to employment: UN Doc E/C12/2017/1, 13 March 2017.

31 UN doc E/C12/GC/20, CESR General Comment No 20, Non-discrimination in economic, social and cultural rights (art 2(2)), 2 July 2009, para 13.

32 It is a principle of international law that states have the sovereign right to determine that aliens are not allowed to enter or reside in the state. If aliens are allowed to stay on the territory, however, it is accepted as state practice, that equal rights of non-nationals are limited as far as employment and social security rights are concerned: Saul, Kinley and Mowbray (n 30) 214.

33 CESCR General Comment No 3, para 10, further elaborated in CESCR Statement on Economic, Social and Cultural Rights, UN doc E/C12/2001/10, 10-05-2001, para 15, and in the CESCR Statement on Duties of States towards refugees and migrant in paras 9–10.

34 Katharine Young, ‘The Minimum Core of Economic and Social Rights: A Concept in Search of Content’ (2008) 33 Yale Journal of International Law, 128.

35 In later Comments, particularly numbers 11, 13, and 14, the Committee did establish minimum essential levels for the rights to food, education, and health respectively.

36 Limburg Principle 25 (n 29).

37 CESCR General Comment No 3, para 10.

38 Katharine Young, Constituting Economic and Social Rights (OUP 2012) 74.

39 CESCR General Comment No 4, para 7.

40 For instance Concluding Observations on: Greece, E/C12/GRC/CO/2, 27 October 2015, paras 11–12; Italy, E/C12/ITA/CO/5, 28 October 2015, paras 1–2; France, E/C12/FRA/CO/4, 13 July 2016, paras 18–19; Spain, E/C12/ESP/CO/6, 25 April 2018, paras 39–40; Estonia, E/C12/EST/CO/3, 27 March 2019, paras 16–17; Belgium, E/C12/BEL/CO/5, 26 March 2020, para 23.

41 UN doc E/C12/NLD/CO/6, COs on the Netherlands, 06 July 2017, para 40.

42 For instance Concluding Observations on Germany, E/C12/DEU/CO/6, 12 October 2018, para 58.

43 UN doc E/C12/2017/1, Duties of States towards refugees and migrants under the ICESC, 13 March 2017.

44 For instance, COs on Greece, E/C12/GRC/CO/2, 27-10-2015, para 12 and Italy, E/C12/ITA/CO5, 28 October 2015, para 2.

45 UNHCR, Reception Standards for Asylum Seekers in the European Union (UNHCR 2000).

46 Ibid. 3.

47 Ibid. 4.

48 Ibid. 13.

49 Ibid. 18–19. Also UNHCR, Guidelines on the Protection of Refugee Women (UNHCR 1991) in particular paras 33–37.

50 GA New York Declaration for Refugees and Migrants, UN doc A/RES/71/1, 3 October 2016, Annex I, para 5 (a) (b) (c).

51 Council of Europe, European Social Charter (Revised in 1999), adopted 3 May 1996, entered into force 1 July 1999.

52 Council of Europe, Convention for the Protection of Human Rights and Fundamental Freedoms, adopted 4 November 1950, entered into force 3 September 1953.

53 European Union, Charter of Fundamental Rights of the European Union, proclaimed 7 December 2000, entered into force with its incorporation in the Treaty of Lisbon 1 December 2009.

54 European Social Charter (n 51) art 27.

55 Additional Protocol to the European Social Charter providing for a system of collective complaints, adopted in 1995 and entered into force in 1998. It is the Committee of Ministers, however, that has the final say about complaints and they do not have to follow the ECSR’s recommendation.

56 Jessie Hohmann, The Right to Housing; Law, Concepts, Possibilities (Hart Publishing 2014) 52.

57 Article 31 reads: ‘With a view to ensuring the effective exercise of the right to housing, the Parties undertake to take measures designed: 1. To promote access to housing of an adequate standard; 2. To prevent and reduce homelessness with a view to its gradual elimination; 3. To make the price of housing accessible to those without adequate resources.’

58 E.g. International Movement ATD Fourth World v France, complaint no 33/2006, decision on the merits of 5 December 2007, paras 68–71.

59 Only 10 of the 47 Member States of the Council of Europe have bound themselves to all the three paragraphs of article 31, among which France, Greece, Italy, and the Netherlands. See Acceptance of provisions of the Revised European Social Charter (1996) <https://rm.coe.int/1680630742> accessed 30 June 2020.

60 DCI v the Netherlands, complaint no 47/2008, decision on the merits of 20 October 2009.

61 Ibid. paras 44 and 45.

62 Ibid. paras 46–48.

63 The ECHR individual complaints procedure is contained in article 34.

64 Hohmann (n 56) 69–71.

65 MSS v Belgium and Greece, App no 30696/09 (ECtHR, 21 January 2011). The point of view that States violate article 3 if they do not provide asylum seekers with adequate accommodation was repeated in subsequent cases, for example in SG v Greece, App no 46558/12 (ECHR 18 May 2017).

66 MSS v Belgium and Greece, the ECtHR decisions 5 and 12.

67 Laurens Lavrysen regrets that the Court does not create any socioeconomic sub-rights under article 3 in his blog post ‘MSS v Belgium and Greece (2): The impact on EU Asylum Law’ 24 February 2011 <https://strasbourgobservers.com/2011/02/24/m-s-s-v-belgium-and-greece-2-the-impact-on-eu-asylum-law/> accessed 31 July 2019.

68 The Treaty of Lisbon entered into force on 1 December 2009.

69 For instance, the right to dignity (art 1); right to asylum (art 18); and non-discrimination (art 21).

70 Article 7 reads: ‘Everyone has the right to respect for his or her private and family life, home and communications.’

71 Directive 2013/33/EU of the European Parliament and of the Council laying down standards for the reception of applicants for international protection (recast), 26 June 2013, see preambular paras 3 and 10.

72 Geneva Convention Relating to the Status of Refugees, 28 July 1951, supplemented by the New York Protocol, 31 January1967.

73 Directive 2013/33/EU, preambular para 35 specifying that in particular articles 1, 4, 6, 7, 18, 21, 24 and 47 of the Charter need to be implemented.

74 Ibid. preamble para 11.

75 EASO, ‘Guidance On Reception Conditions: Operational Standards and Indicators’ (EASO 2016) <https://ec.europa.eu/home-affairs/what-we-do/policies/asylum/reception-conditions_en> accessed 1 August 2019.

76 Ibid. 9.

77 Ibid. 8–9.

78 Regulation 2003/343/CE, No 343/2003 of 18 February 2003.

79 MSS v Belgium and Greece, the ECtHR decisions 10 and 12.

80 Directive 2013/33/EU, art 18, para 9(b).

81 See e.g. C-179/11 Cimade and GISTI [2012], para 39, and C-79/13 Federaal agentschap voor de opvang van asielzoekers [2014], para 46.

82 This is determined in Directive 2013/33/EU, art 3(3). See Council Directive 2001/55/EC on minimum standards for giving temporary protection in the event of a mass influx of displaced persons and on measures promoting a balance of efforts between Member States in receiving such persons and bearing the consequences thereof, of 20 July 2001.

83 Council Directive 2001/55/EC, art 13.

84 Regulation (EU) No 516/2014 of the European Parliament and of the Council establishing the Asylum, Migration and Integration Fund of 16 April 2014.

85 Scholars, the UN, the EU, NGOs, and journalists have gathered an enormous wealth of information on circumstances in reception centres. Only a selection can be mentioned here.

86 AIDA (2019) (n 7) 5.

87 ‘Verkrachtingen in AZC’ [Rapes at asylum seekers centre] De Telegraaf (Amsterdam, 17 September 2015) <www.telegraaf.nl/nieuws/504447/verkrachtingen-in-azc\. accessed 21 August 2019.

88 For example, 20 people attacked each other with sticks in an asylum seekers centre in Pey, the Netherlands: De Limburger (Maastricht, 12 September 2017).

89 AIDA, Country Report: Greece, 2020, 180.

90 SGBV can be defined as acts of violence that include physical, psychological, or sexual suffering because of a person’s sex or gender: Global Health, ‘Assessing reported cases of sexual and gender-based violence, causes and preventative strategies, in European asylum reception facilities,’ 9 May 2018 <https://globalizationandhealth.biomedcentral.com/articles/10.1186/s12992-018-0365-6> accessed 5 August 2019.

91 These States are Belgium, Greece, Hungary, Ireland, Malta, the Netherlands, Portugal and Spain: Global Health (n 91) 3–4.

92 Ibid. 8.

93 Ibid. 13.

94 UNHCR, ‘Women and Children Threatened by Sexual Violence at Refugee Reception Centres In Greek Islands,’ 9 February 2018 <www.refworld.org/docid/5b83c4994.html> accessed 27 July 2019.

95 UNHCR (n 95).

96 ‘Verkrachtingen in AZC’ [Rapes at asylum seekers centre] De Telegraaf (Amsterdam, 17 September 2015) <www.telegraaf.nl/nieuws/504447/verkrachtingen-in-azc> accessed 21 August 2019.

97 Documents of the Central Organ for Reception of Asylum seekers in the Netherlands indicate that sexual harassment is a weekly occurrence in one centre (of which there are around 80). In 2015 the police received 55 notifications of sexual crimes: <www.ad.nl/buitenland/elke-week-zedendelict-bij-een-asielzoekerscentrum~a147393f/> Cyril Rosman and Peter Winterman, 'Elke week zedendelict bij een asielzoekerscentrum' [Every week a sexual offense at an asylum seekers centre] AD (Rotterdam, 9 Mary 2016) accessed 21 August 2019.

98 Dutch Ministry of Social Affairs and Employment, Kennisplatform Integratie & Samenleving, ‘Huiselijk geweld en veiligheid in asielopvangcentra’ [Domestic violence and safety in asylum seekers centres], (2017).

99 UNHCR, ‘Sexual and Gender-Based Violence Against Refugees, Returnees and Internally Displaced Persons: Guidelines for Prevention and Response’ (UNHCR 2003) 22.

100 UNHCR, Initial Assessment Report (UNHCR 2015) 8.

101 See UNHCR, ‘Women and Children Threatened by Sexual Violence at Refugee Reception Centres in Greek Islands,’ 9 February 2018 <www.unhcr.org/protection/operations/569f8f419/initial-assessment-report-protection-risks-women-girls-european-refugee.html> accessed 7 August 2019.

102 Kirsi Pauliina Kallio, Isabel Meier and Jouni Häkli, ‘Radical Hope in Asylum Seeking: Political Agency Beyond Linear Temporality’ (2020) Vol 47 Journal of Ethnic and Migration Studies 4006.

103 European Parliament, ‘Reception of Female Refugees’ (n 11) 23. In German AnKER centres, cooking is not allowed; AIDA, Country Report: Germany (2019) 92.

104 Alice Szczepanikova, ‘Between Control and Assistance: The Problem of European Accommodation Centres for Asylum Seekers’ (2013) 51(4) International Migration 138.

105 Kathryn Cassidy, ‘Housing, the Hyper-precarization of Asylum Seekers and the Contested Politics of Welcome on Tyneside’ (2020) 2(1) Radical Housing Journal 100.

106 Global Health (n 90) 14.

107 European Parliament, ‘Reception of Female Refugees’ (n 11) 23.

108 An exception is the 2016 60-page EASO report: EASO (n 76). However, these guidelines are so numerous and detailed that it is hard to see the forest for the trees.

109 AIDA, Country Report: Belgium (2020) 101–102.

110 AIDA, Country Report: Italy (2020) 106.

111 UNHCR, Greece Update No 16 (2021) <https://reporting.unhcr.org/sites/default/files/UNHCR%20RBE%20Greece%20-%20Lesvos%20update%20-%207%20March%202021.pdf>.

112 AIDA, Country Report: Greece (2020) 172.

113 In Italy, all governmental centres are often overcrowded. AIDA, Country Report: Italy (2020) 123.

114 More than 42,000 asylum seekers were living in Greek camps that were originally intended to house 5,400 people; around 21,000 asylum seekers were staying in Camp Moria alone: The Guardian (London, 17 February 2020) <www.theguardian.com/world/2020/feb/17/greece-pauses-plans-for-new-refugee-detention-centres-on-islands> Helena Smith, ‘Greece pauses plans for new refugee detention centres on islands’.

115 Dénes Albert, 'Italians are thoroughly checked but migrants are allowed to leave centers and in some cases are even openly escaping' REMIX (Budapest, 28 July 2020).

116 AIDA, Country Report: Italy (2020) 121.

117 World Health Organization, WHO Housing and health guidelines (WHO 2018) ch 3, ‘Household crowding.’ According to the UNHCR standards, emergency shelters located at public buildings are recommended to have 4.5–5.5 m² per person in cold climates, as residents remain inside the shelters during daytime.

118 Tsourdi (n 6) 19.

119 Hygiene conditions were low in overcrowded Slovenian centres: AIDA, Country Report Slovenia (2020) 65.

120 Greek Council of Refugees (n 4) 32–34; AIDA, Country Reports: Germany (2019) 90; Greece (2020) 47; Italy (2020) 157.

121 European Parliament, ‘Reception of Female Refugees’ (n 11) 23.

122 Greek Council of Refugees (n 4) 32–34.

123 EASO (2016) (n 76) 17.

124 Ibid. 16.

125 European Council on Refugees and Exiles, German AnKER Centres Drawing Increasing Critique (relief.web.int, 9 February 2019) <https://reliefweb.int/report/germany/german-anker-centres-drawing-increasing-critique> accessed 30 August 2021.