Dr. Louise Halleskov Storgaard, Assistant Professor, Aarhus University
Can a country that offers subsidiary protection (a form of protection similar to refugee status) restrict the movement of those beneficiaries within its borders if they receive social security benefits? This is the central question addressed by the Court of Justice of the European Union (CJEU) in the Alo and Osso case on March 1, 2015. The CJEU’s answer is notable, innovative, and potentially contentious as it reinforces the influence of the Geneva Convention on subsidiary protection standards but also raises questions about the applicable non-discrimination standard.
Facts
In 2012, both Mr. Alo and Mr. Osso, Syrian nationals, were independently granted subsidiary protection status in Germany. Under German law, beneficiaries of subsidiary protection receiving social security benefits have a residence permit that confines their residence to a specific location within the country. This restriction doesn’t apply to other foreign nationals legally residing in Germany who are not seeking international protection. As both Mr. Alo and Mr. Osso received social security benefits upon arriving in Germany, their residence permits restricted their movement. They challenged this requirement, and the German Federal Administrative Court referred the issue to the CJEU for clarification on whether this restriction aligns with the Qualification Directive (QD).
The relevant QD provisions are:
Article 29
Social welfare
Member States must ensure beneficiaries of international protection receive the same necessary social assistance provided to their citizens in the Member State that granted protection.
As an exception, Member States can limit social assistance for beneficiaries of subsidiary protection to essential benefits provided to citizens under the same conditions.
Article 33
Freedom of movement within the Member State
Member States must permit freedom of movement within their territories for beneficiaries of international protection under the same conditions and restrictions applied to other legally residing third-country nationals.
Judgment
The CJEU began by providing important guidelines for interpreting the QD. It emphasized the need to ensure consistency with the Geneva Convention and its full application, as previously stated in the El Kott case. Furthermore, it stated that the Geneva Convention should guide the interpretation of cases concerning beneficiaries of subsidiary protection. To justify this, the CJEU referenced statements within the QD’s preamble. These statements highlight the European asylum system’s foundation on the full application of the Geneva Convention and the EU legislature’s intent to create a standardized status for all beneficiaries of international protection with only necessary and justifiable exceptions.
Within this interpretive framework, the CJEU reasoned that since Article 33 of the QD doesn’t explicitly permit different treatment between refugees and beneficiaries of subsidiary protection, and because Article 26 of the Geneva Convention guarantees freedom of movement for refugees, including choosing their place of residence, Article 33 of the QD must be interpreted similarly. Therefore, the place-of-residence requirement constitutes a limitation on the freedom of movement guaranteed by Article 33 QD. Similarly, interpreting Article 29 QD in light of Article 23 of the Geneva Convention led the CJEU to conclude that the place-of-residence requirement also restricts access to social welfare for beneficiaries of subsidiary protection when this requirement isn’t imposed on German nationals.
The CJEU then examined whether these limitations could be justified by the two objectives presented by German authorities: 1) ensuring a balanced distribution of the financial responsibility for social benefits among relevant institutions; and 2) preventing social segregation and promoting integration.
The CJEU established a general test, stating:
“National rules could legitimately impose a residence condition on beneficiaries of subsidiary protection status without imposing the same condition on refugees, legally residing third-country nationals, or citizens if those groups are not objectively comparable regarding the objective pursued by those rules.”
Applying this test to the first objective put forth by the German authorities, the CJEU acknowledged that the movement of social security beneficiaries or their unequal distribution within a Member State could lead to an uneven financial burden. However, the Court highlighted that this risk pertains not only to beneficiaries of subsidiary protection but also to refugees and other legally residing third-country nationals receiving social benefits. Consequently, the place-of-residence requirement violates Articles 29 and 33 of the QD.
Regarding the second objective concerning integration, the CJEU determined that Article 29 QD isn’t relevant because beneficiaries of subsidiary protection status and German nationals are not comparable concerning the objective of facilitating the integration of third-country nationals. Regarding Article 33 QD, the CJEU left it to the referring German court to assess whether the integration aim objectively compares the situations of beneficiaries of subsidiary protection status and other legally residing third-country nationals in Germany.
The CJEU suggested that the referring German court should consider whether receiving welfare benefits while holding international protection status, specifically subsidiary protection, presents greater integration challenges compared to other third-country nationals with different immigration statuses. This difference might exist if other groups can access welfare benefits only after a certain period of continuous legal residence, as it can:
“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 Qualification Directive. Four interconnected points deserve attention:
First, the ruling solidifies the Geneva Convention as a foundation for the Common European Asylum System (CEAS) by strengthening its connection to the QD. The CJEU’s extension of the Geneva Convention’s applicability to cases involving beneficiaries of subsidiary protection is groundbreaking. A key characteristic of the revised QD is its improvement of the substance of subsidiary protection. By allowing the Geneva Convention to ensure equal treatment between refugees and beneficiaries of subsidiary protection when interpreting the QD, the CJEU ensures that EU law effectively complements the ECHR and the Geneva Convention in this area. This reasoning illustrates the EU law’s gradual development towards aligning the two international protection statuses, prompted by the Stockholm Programme and implemented in the QD, the Dublin and Eurodac Regulations, and the Procedures and Reception Conditions Directives.
Second, the CJEU employed a different justification for applying the Geneva Convention than in its previous rulings on the initial QD (the Bolbol and El Kott judgments). Instead of relying on direct textual references within the QD, the CJEU referenced the QD preamble, which emphasizes uniform international protection standards and equal treatment for both statuses except for necessary and justified exceptions. The CJEU also referenced Article 20 (2) QD, stating that Chapter VII (regarding rights and entitlements for refugees and beneficiaries of subsidiary protection) applies equally to both unless stated otherwise. As this reasoning isn’t limited to Articles 29 and 33 QD, the Geneva Convention can be used to interpret all Chapter VII QD provisions. However, whether the CJEU will extend this to other situations beyond the scope of the QD remains unclear. Given that all revised CEAS directives reference the call for uniformity in the Stockholm Programme, there is a basis for arguing that the Geneva Convention should also guide the interpretation of, for example, the Procedures Directive in cases concerning procedural arrangements and status determination for those eligible for subsidiary protection.
Third, it is essential to note the path not taken by the CJEU. Advocate General Cruz Villalón, in his opinion, proposed that the case warranted interpreting Article 33 QD through the non-discrimination lens of Article 21 of the EU Charter of Fundamental Rights and Article 14 ECHR, along with the fundamental right to freedom of movement in international human rights law (including Article 2 of Protocol 4 to the ECHR). He found that the place-of-residence requirement restricts the right guaranteed by Article 33 QD and assessed whether the German authorities’ objectives could justify this restriction under Article 52(1) of the Charter. While the AG considered both objectives legitimate, he concluded that the economic burden-sharing objective wasn’t suitable for justifying the restriction. He left the assessment of integration policy considerations for the referring court.
Fourth, the AG’s reasoning offers potential insight into the development of the CJEU’s “comparable-test.” This test’s lack of clarity and its potential application by national courts and the CJEU in future cases could potentially dilute the impact of the Court’s findings regarding the application of the Geneva Convention to beneficiaries of subsidiary protection. The CJEU’s reasoning seemingly suggests that despite equal treatment being the general rule, and despite the absence of explicit exceptions, beneficiaries of subsidiary protection can be treated differently from refugees concerning rights guaranteed under Chapter VII QD “if those groups are not in an objectively comparable situation as regards the objective pursued by those rules.” This also applies to differences in treatment compared to legally residing third-country nationals and citizens.
The origin of this test is unclear from the judgment. Unlike the AG opinion, the judgment makes no reference to non-discrimination provisions, other fundamental rights standards, or the “necessary and objectively justified” requirement from the Stockholm Programme.
However, the CJEU’s reasoning echoes the non-discrimination test under Article 21 Charter and Article 14 ECHR. It is crucial to observe that the CJEU links fulfilling the comparable situation requirement under the QD to the objective of the disputed national provision. This approach differs from the ECtHR’s approach in non-discrimination cases and is less favorable from an applicant’s perspective. For example, in the Hode and Abdi case, the ECtHR ruled that refugees who married after leaving their country were in a similar situation to those who married before, as well as to third-country national students and workers, simply because all groups had temporary immigration status. The ECtHR disregarded the UK government’s argument about the fundamentally different purposes of these immigration statuses. The CJEU’s reasoning in Alo and Osso is confusing from a non-discrimination standpoint. The assessment of both aims put forth by German authorities is better characterized as a proportionality assessment (similar to the AG’s approach) than an assessment of “objective comparability” between beneficiaries of subsidiary protection and other legal residents concerning the aims of the place-of-residence condition. This is evident in the CJEU’s arguments concerning the economic burden-sharing aim, which effectively address whether the place-of-residence condition is an appropriate means to achieve that aim.
While it remains uncertain whether the CJEU intended to align the test developed under Articles 29 and 33 QD with that of Article 14 ECHR, the terminology used makes it reasonable to draw parallels. By diverging from the ECtHR’s approach in a similar case and tasking the national court with applying this test using abstract criteria, the CJEU introduces legal uncertainty regarding the applicable non-discrimination standard for cases involving differential treatment of beneficiaries of international protection.
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