Dr. Louise Halleskov Storgaard, Assistant
Professor, Aarhus University
Is it in accordance with the Qualification Directive (QD) to restrict the freedom of movement within the host country
of beneficiaries of subsidiary protection (a form of protection parallel to
refugee status) in receipt of social security benefits? This question was
addressed by the CJEU in its ruling of 1 March 2015 in the Alo and Osso case. The Court’s answer
and its reasoning is equally interesting, groundbreaking and controversial as
it, on the one hand, strengthens the impact of the Geneva Convention
(the United Nations Convention on the Status of Refugees) on the QD standards
and the substantive content of subsidiary protection while it, on the other
hand, creates uncertainty about the applicable non-discrimination standard in
such cases.
Facts
Mr Alo and Mr Osso are Syrian
nationals who, independently of each other, in 2012 were granted subsidiary
protection status in Germany. German law prescribes that, where beneficiaries
of subsidiary protection receive social security benefits, their residence
permit is issued subject to a condition requiring residence to be taken up in a
particular place of the country. This condition does not apply to third-country
nationals legally residing in Germany on other grounds than international
protection (ie, subsidiary protection or refugee status). Since both Mr Alo and
Mr Osso had been in receipt of social security benefits since they arrived
in Germany, their residence permits required them to take up residence in,
respectively, a specific town and specific parts of a region in Germany. They
both disputed this requirement and on appeal the Bundesverwaltungsgericht (German Federal Administrative Court)
decided to stay the proceedings in both cases and ask the CJEU to clarify the
conformity of the place-of-residence condition with the QD.
The relevant provisions of that
directive read:
Article 29
Social welfare
1. Member States shall ensure that
beneficiaries of international
protection receive, in the Member State that has granted such protection, the
necessary social assistance as provided to nationals of that Member State.
2. By way of derogation from the general rule
laid down in paragraph 1, Member States may limit social assistance granted to
beneficiaries of subsidiary protection status to core benefits which will then
be provided at the same level and under the same eligibility conditions as
nationals.
Article 33
Freedom of movement
within the Member State
Member States shall allow freedom of movement
within their territory to beneficiaries of international protection, under the
same conditions and restrictions as those provided for other third-country
nationals legally resident in their territories.
Judgment
The CJEU started out by providing important
new guidance on the interpretation of the QD. It reiterated the statements most
recently made in El Kott concerning
the necessity of ensuring consistency with the Geneva Convention and a full and
inclusive application of that Convention. The CJEU then went one step further as
it declared that the Geneva Convention is to be used as interpretative guidance
also in cases involving subsidiary protection beneficiaries. To justify this
approach the CJEU referred to statements made in the preamble about the
European asylum system, as a whole, being based on the full and inclusive
application of the Geneva Convention and about the intention of the EU
legislature to establish a uniform status for all beneficiaries of
international protection subject only to necessary and objectively justified
derogations.
Against this interpretative backdrop
the CJEU ruled that since Article 33 QD does not specifically allow for
difference in treatment between refugees and subsidiary protection
beneficiaries, and since Article 26 of the Geneva Convention on freedom of
movement of refugees includes the right for refugees to choose their place of
residence, the same must apply as regards Article 33 QD. Consequently, the place-of-residence
condition constitutes a restriction with the freedom of movement guaranteed by
Article 33 QD. Similarly, Article 29 QD was interpreted by the CJEU in light of
Article 23 of the Geneva Convention leading to the conclusion that the
place-of-residence condition also constitutes a restriction on the access to
social welfare of beneficiaries of subsidiary protection when it is not also
imposed on German nationals.
The CJEU continued to the question of
whether these restrictions could be justified by the two aims put forward by
the German authorities: 1) achieving an appropriate distribution of the burden
of paying certain social benefits among the various institutions competent in
that regard; and 2) preventing social segregation and its negative consequences
for integration (integration policy considerations).
To that end the CJEU established a
general test as it explained (para. 54):
”[n]ational rules could
legitimately provide for a residence condition to be imposed on beneficiaries
of subsidiary protection status, without such a condition being imposed on
refugees, third-country nationals legally resident in the territory of the
Member State concerned on grounds that are not humanitarian or political or
based on international law and nationals of that Member State, if those groups
are not in an objectively comparable situation as regards the objective pursued
by those rules.
Applying this test to the first aim invoked by
the German authorities, the CJEU acknowledged that the movement of recipients
of social security benefits or the fact that such persons are not equally
concentrated throughout a Member State entails the risk of an uneven distribution
of the financial burden. However, the Court pointed out that this risk relates
not only to subsidiary protection beneficiaries but also to refugees and other third-country
nationals residing legally in receipt of social benefits. For that reason the place-of–residence
condition is in breach of Articles 29 and 33 QD.
Concerning the second aim relating to
integration policy, the CJEU first explained that Article 29 QD is not relevant
to consider because beneficiaries
of subsidiary protection status and German nationals are not in a comparable
situation as far as the objective of facilitating the integration of
third-country nationals is concerned. As regards Article 33 QD, the CJEU left it
for the Bundesverwaltungsgericht to assess
whether beneficiaries of
subsidiary protection status are in a situation that is, so far as concerns the
integration aim, objectively comparable with the situation of third-country
nationals legally residing in Germany on grounds that are not humanitarian or
political or based on international law.
The CJEU offered some guidance as it explained
that the Bundesverwaltungsgericht will have to determine whether the fact
that the person receiving welfare benefits holds international protection, in
this case subsidiary protection status, means that he or she will face
greater difficulties relating to integration than third-country nationals
holding another immigration status than international protection. That might
particularly be the case if the latter group of persons are eligible for
welfare benefits only after a certain period of continuous legal residence in
the host Member State since it can (para. 63):
“be assumed
from such a period of residence that the third-country nationals concerned are
sufficiently integrated in that Member State and therefore would not be in a
situation comparable with that of beneficiaries of international protection so
far as the objective of facilitating the integration of third-country nationals
is concerned.”
Comments
This is the CJEU’s first judgment on
the revised “second-phase” QD. Four interrelated aspects of the case deserve
particular attention:
First, the case cements the Geneva
Convention’s function as a cornerstone of the Common European Asylum System (CEAS)
measures by enhancing the strong link between that Convention and the QD. In
that respect the Court’s extension of the applicability of the Geneva
Convention to cases involving subsidiary protection beneficiaries is groundbreaking.
One of the key features of the second-phase QD is precisely that it improves the
substantive content of subsidiary protection, and by allowing for the Geneva
Convention to function as the guiding standard to ensure equality of treatment
between refugees and subsidiary protection beneficiaries when interpreting Chapter
VII QD, the CJEU secures that Union law also in practice complements the ECHR
and the Geneva Convention in this area. The CJEU’s reasoning on this point therefore
illustrates the gradual EU law development towards an alignment of the two
statuses of international protection which was fuelled by the Stockholm Programme
and has been implemented not only in the QD, but also the second-phase Dublin
and Eurodac Regulations and procedures and reception conditions Directives.
Second, unlike in the Bolbol and El Kott judgments concerning the first-phase QD, the CJEU did
not justify the application of specific provisions of the Geneva Convention by
the fact that the relevant text of the QD refers to these provisions. Instead,
the CJEU referred to the preamble to the QD where it is stated that the
directive responds to the Stockholm Programme’s call for a uniform
international protection standard and that equality between the two statuses
shall be granted as regards rights, benefits and conditions for eligibility
“with the exception of derogations which are necessary and objectively
justified”. To buttress the argument the CJEU referred also to Article 20 (2)
QD, according to which Chapter VII QD (which concerns the content of status, ie
what recognized refugees and people with subsidiary protection are entitled to)
applies to both refugees and subsidiary protection beneficiaries unless
otherwise indicated. As the Court’s reasoning on this point is not limited to
cases involving Articles 29 and 33 QD, the Geneva Convention can be used as a
yardstick for the interpretation of all provisions in Chapter VII QD. However,
it remains to be seen whether the CJEU in future cases is willing to extend the
applicability of the Geneva Convention to cases involving subsidiary protection
beneficiaries beyond situations concerning the substantive content of this
status – within or outside the QD. Since all second-phase CEAS directives contain
elaborate references to the call for uniformity in the Stockholm Programme,
there is some room for arguing that the Geneva Convention should also guide
e.g. the interpretation of the Procedures Directive in cases involving procedural
arrangements and status determination of persons eligible for subsidiary
protection.
Third, it is worth noting the road
not taken by the CJEU. In his opinion, AG Cruz Villalón argued that the
circumstances of the case warrant that Article 33 QD must be interpreted through
the lens of the non-discrimination provisions in Article 21 of the EU Charter of
Fundamental Rights and Article 14 ECHR in conjunction with the fundamental
right to freedom of movement set out in international human rights law,
including Article 2 of Protocol 4 to the ECHR. Since the AG too found that the
place-of-residence condition constitutes a restriction on the right guaranteed
by Article 33 QD, he assessed whether that condition could be justified under
the general rule on limitations on Charter rights in Article 52 (1) of the
Charter in light of the two aims referred to by the German authorities. The AG
found both aims to be legitimate but when assessing the proportionality of the
restriction, he concluded that the economic burden-sharing objective was not
appropriate to this aim. The AG left it for the referring national court to
assess whether integration policy considerations could justify the restriction.
Fourth, the AG’s reasoning is interesting
because it may offer insight as to how the CJEU came up with the above-quoted “comparable-test”.
Arguably, this test is not easily comprehensible and depending on how it is
applied by national courts and by the CJEU in future cases, it can dilute some
of the above-identified impact of the Court’s findings concerning the application
of the Geneva Convention to subsidiary protection beneficiaries. The essence of
the Court’s reasoning is (seemingly) that even though equality of treatment is
the main rule, and even though a derogation is not explicitly provided for,
then subsidiary protection beneficiaries can be treated differently than
refugees as regards the rights guaranteed under Chapter VII QD, “if those groups are not in an objectively
comparable situation as regards the objective pursued by those rules”. The same
applies as regards difference in treatment compared to other legally resident third-country nationals
and nationals.
There is no information in the
judgment about the origins of this test. Unlike the AG opinion, the judgment
does not contain any reference to non-discrimination provisions or other fundamental
rights standards, and there is no indication as to whether it is a reformulation
of the “necessary and objectively justified”-requirement listed in the
Stockholm Programme either.
Still, it is safe to say that the
Court’s reasoning bears resemblance to the non-discrimination test under
Article 21 Charter and Article 14 ECHR (i.e. that difference of treatment of
persons in comparable situations on account of a prohibited discrimination
ground must be objectively and reasonably justified). It is therefore important
to note that the CJEU links the fulfilment of the comparable situation-requirement
under the QD to the objective of the disputed national provision, which is a
different and (from an applicant’s perspective) less favourable approach than that
applied by the ECtHR in non-discrimination cases. In the Hode and Abdi case (relied on by the AG), the ECtHR thus
ruled that refugees who married after leaving their country were in an
analogous position with refugees who married before this point in time as well
as with third-country national students and workers solely because the
immigration status held by all groups was of a limited nature. The ECtHR
disregarded the UK Government’s objection concerning the purpose of the various
immigration statuses being fundamentally different. In fact, from a
non-discrimination perspective, the CJEU’s reasoning in Alo and Osso is entirely confusing since the assessment of both aims
put forward by the German authorities is better characterised as a
proportionality assessment (similar to the one conducted by the AG) than an
assessment of the “objective comparability” of subsidiary protection
beneficiaries with other groups of legally residing third-country nationals as
regards the aims pursued by the place-of-residence condition. This is
illustrated by the fact that the CJEU’s arguments concerning the economic
burden-sharing aim in reality concerns whether the place-of-residence condition
is an appropriate means to reach that aim.
Although it is far from certain that
the CJEU intended to or even found it relevant to align the test developed under
Articles 29 and 33 QD with that of Article 14 ECHR, the vocabulary chosen by
the Court makes it reasonable to draw parallels and compare with that provision.
And by departing from the approach of the ECtHR in a very similar case and
leaving it for the referring national court to apply the test in practice in
light of relatively abstract guiding criteria, the CJEU creates undue legal
certainty about the applicable non-discrimination standard in cases involving difference
of treatment of international protection beneficiaries.
Barnard & Peers: chapter 26
JHA4: chapter I:5
Photo credit: http://www.dw.com/en/german-interior-minister-de-maiziere-stands-by-plan-to-reduce-syrian-asylum-protection/a-18835570
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