Enhancing Together With Diluting The Legal Condition Of Subsidiary Protection Beneficiaries Nether Wedlock Police Trace – The Cjeu Judgment Inwards Alo Together With Osso
November 25, 2018
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Dr. Louise Halleskov Storgaard, Assistant Professor, Aarhus University
Is it inwards accordance amongst the Qualification Directive (QD) to trammel the liberty of displace inside the host solid set down of beneficiaries of subsidiary protection (a cast of protection parallel to refugee status) inwards receipt of social security benefits? This inquiry was addressed yesteryear the CJEU inwards its ruling of 1 March 2015 inwards the Alo in addition to Osso case. The Court’s answer in addition to its reasoning is as interesting, groundbreaking in addition to controversial as it, on the 1 hand, strengthens the behaviour upon of the Geneva Convention (the UN Convention on the Status of Refugees) on the QD standards in addition to the noun content of subsidiary protection piece it, on the other hand, creates dubiety close the applicable non-discrimination measure inwards such cases.
Facts
Mr Alo in addition to Mr Osso are Syrian nationals who, independently of each other, inwards 2012 were granted subsidiary protection status inwards Germany. German linguistic communication police prescribes that, where beneficiaries of subsidiary protection have social security benefits, their residence permit is issued patch of written report to a status requiring residence to endure taken upward inwards a item house of the country. This status does non apply to third-country nationals legally residing inwards FRG on other grounds than international protection (ie, subsidiary protection or refugee status). Since both Mr Alo in addition to Mr Osso had been inwards receipt of social security benefits since they arrived inwards Germany, their residence permits required them to have got upward residence in, respectively, a specific town in addition to specific parts of a part inwards Germany. They both disputed this requirement in addition to on appeal the Bundesverwaltungsgericht (German Federal Administrative Court) decided to remain the proceedings inwards both cases in addition to inquire the CJEU to clarify the conformity of the place-of-residence status amongst the QD.
The relevant provisions of that directive read:
Article 29
Social welfare
1. Member States shall ensure that beneficiaries of international protection receive, inwards 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 full general dominion set downwardly inwards paragraph 1, Member States may bound social assistance granted to beneficiaries of subsidiary protection status to centre benefits which volition so endure provided at the same marking in addition to nether the same eligibility atmospheric condition as nationals.
Article 33
Freedom of displace inside the Member State
Member States shall permit liberty of displace inside their territory to beneficiaries of international protection, nether the same atmospheric condition in addition to restrictions as those provided for other third-country nationals legally resident inwards their territories.
Judgment
The CJEU started out yesteryear providing of import novel guidance on the interpretation of the QD. It reiterated the statements most latterly made inwards El Kott concerning the necessity of ensuring consistency amongst the Geneva Convention in addition to a total in addition to inclusive application of that Convention. The CJEU so went 1 stair farther as it declared that the Geneva Convention is to endure used as interpretative guidance also inwards cases involving subsidiary protection beneficiaries. To justify this approach the CJEU referred to statements made inwards the preamble close the European asylum system, as a whole, existence based on the total in addition to inclusive application of the Geneva Convention in addition to close the intention of the European Union legislature to constitute a uniform status for all beneficiaries of international protection patch of written report only to necessary in addition to objectively justified derogations.
Against this interpretative backdrop the CJEU ruled that since Article 33 QD does non specifically permit for divergence inwards handling betwixt refugees in addition to subsidiary protection beneficiaries, in addition to since Article 26 of the Geneva Convention on liberty of displace of refugees includes the correct for refugees to pick out their house of residence, the same must apply as regards Article 33 QD. Consequently, the place-of-residence status constitutes a restriction amongst the liberty of displace guaranteed yesteryear Article 33 QD. Similarly, Article 29 QD was interpreted yesteryear the CJEU inwards low-cal of Article 23 of the Geneva Convention leading to the conclusion that the place-of-residence status also constitutes a restriction on the access to social welfare of beneficiaries of subsidiary protection when it is non also imposed on German linguistic communication nationals.
The CJEU continued to the inquiry of whether these restrictions could endure justified yesteryear the ii aims seat frontwards yesteryear the German linguistic communication authorities: 1) achieving an appropriate distribution of the burden of paying for certain social benefits amid the diverse institutions competent inwards that regard; in addition to 2) preventing social segregation in addition to its negative consequences for integration (integration policy considerations).
To that goal the CJEU established a full general exam as it explained (para. 54):
”[n]ational rules could legitimately furnish for a residence status to endure imposed on beneficiaries of subsidiary protection status, without such a status existence imposed on refugees, third-country nationals legally resident inwards the territory of the Member State concerned on grounds that are non humanitarian or political or based on international police in addition to nationals of that Member State, if those groups are non inwards an objectively comparable province of affairs as regards the objective pursued yesteryear those rules.
Applying this exam to the commencement aim invoked yesteryear the German linguistic communication authorities, the CJEU acknowledged that the displace of recipients of social security benefits or the fact that such persons are non as concentrated throughout a Member State entails the opportunity of an uneven distribution of the fiscal burden. However, the Court pointed out that this opportunity relates non only to subsidiary protection beneficiaries but also to refugees in addition to other third-country nationals residing legally inwards receipt of social benefits. For that ground the place-of–residence status is inwards breach of Articles 29 in addition to 33 QD.
Concerning the minute aim relating to integration policy, the CJEU commencement explained that Article 29 QD is non relevant to consider because beneficiaries of subsidiary protection status in addition to German linguistic communication nationals are non inwards a comparable province of affairs 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 inwards a province of affairs that is, so far as concerns the integration aim, objectively comparable amongst the province of affairs of third-country nationals legally residing inwards FRG on grounds that are non humanitarian or political or based on international law.
The CJEU offered simply about guidance as it explained that the Bundesverwaltungsgericht volition have got to determine whether the fact that the someone receiving welfare benefits holds international protection, inwards this illustration subsidiary protection status, agency that he or she volition confront greater difficulties relating to integration than third-country nationals belongings simply about other immigration status than international protection. That mightiness specially endure the illustration if the latter grouping of persons are eligible for welfare benefits only afterwards a for certain menses of continuous legal residence inwards the host Member State since it tin dismiss (para. 63):
“be assumed from such a menses of residence that the third-country nationals concerned are sufficiently integrated inwards that Member State in addition to hence would non endure inwards a province of affairs comparable amongst 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 commencement judgment on the revised “second-phase” QD. Four interrelated aspects of the illustration deserve item attention:
First, the illustration cements the Geneva Convention’s role as a cornerstone of the Common European Asylum System (CEAS) measures yesteryear enhancing the rigid link betwixt that Convention in addition to the QD. In that abide by 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 exactly that it improves the noun content of subsidiary protection, in addition to yesteryear allowing for the Geneva Convention to role as the guiding measure to ensure equality of handling betwixt refugees in addition to subsidiary protection beneficiaries when interpreting Chapter VII QD, the CJEU secures that Union police also inwards practise complements the ECHR in addition to the Geneva Convention inwards this area. The CJEU’s reasoning on this dot hence illustrates the gradual European Union police evolution towards an alignment of the ii statuses of international protection which was fuelled yesteryear the Stockholm Programme in addition to has been implemented non only inwards the QD, but also the second-phase Dublin in addition to Eurodac Regulations in addition to procedures in addition to reception atmospheric condition Directives.
Second, different inwards the Bolbol and El Kott judgments concerning the first-phase QD, the CJEU did non justify the application of specific provisions of the Geneva Convention yesteryear 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 telephone outcry upward for a uniform international protection measure in addition to that equality betwixt the ii statuses shall endure granted as regards rights, benefits in addition to atmospheric condition for eligibility “with the exception of derogations which are necessary in addition to objectively justified”. To buttress the declaration the CJEU referred also to Article xx (2) QD, according to which Chapter VII QD (which concerns the content of status, ie what recognized refugees in addition to people amongst subsidiary protection are entitled to) applies to both refugees in addition to subsidiary protection beneficiaries unless otherwise indicated. As the Court’s reasoning on this dot is non express to cases involving Articles 29 in addition to 33 QD, the Geneva Convention tin dismiss endure used as a yardstick for the interpretation of all provisions inwards Chapter VII QD. However, it remains to endure seen whether the CJEU inwards futurity cases is willing to extend the applicability of the Geneva Convention to cases involving subsidiary protection beneficiaries beyond situations concerning the noun content of this status – inside or exterior the QD. Since all second-phase CEAS directives comprise elaborate references to the telephone outcry upward for uniformity inwards the Stockholm Programme, at that spot is simply about room for arguing that the Geneva Convention should also guide e.g. the interpretation of the Procedures Directive inwards cases involving procedural arrangements in addition to status decision of persons eligible for subsidiary protection.
Third, it is worth noting the route non taken yesteryear the CJEU. In his opinion, AG Cruz Villalón argued that the circumstances of the illustration warrant that Article 33 QD must endure interpreted through the lens of the non-discrimination provisions inwards Article 21 of the European Union Charter of Fundamental Rights in addition to Article xiv ECHR inwards conjunction amongst the key correct to liberty of displace gear upward out inwards international human rights law, including Article 2 of Protocol four to the ECHR. Since the AG besides found that the place-of-residence status constitutes a restriction on the correct guaranteed yesteryear Article 33 QD, he assessed whether that status could endure justified nether the full general dominion on limitations on Charter rights inwards Article 52 (1) of the Charter inwards low-cal of the ii aims referred to yesteryear the German linguistic communication authorities. The AG found both aims to endure legitimate but when assessing the proportionality of the restriction, he concluded that the economical burden-sharing objective was non appropriate to this aim. The AG left it for the referring national courtroom to assess whether integration policy considerations could justify the restriction.
Fourth, the AG’s reasoning is interesting because it may offering insight as to how the CJEU came upward amongst the above-quoted “comparable-test”. Arguably, this exam is non easily comprehensible in addition to depending on how it is applied yesteryear national courts in addition to yesteryear the CJEU inwards futurity cases, it tin dismiss dilute simply about of the above-identified behaviour upon 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 fifty-fifty though equality of handling is the principal rule, in addition to fifty-fifty though a derogation is non explicitly provided for, so subsidiary protection beneficiaries tin dismiss endure treated differently than refugees as regards the rights guaranteed nether Chapter VII QD, “if those groups are non inwards an objectively comparable province of affairs as regards the objective pursued yesteryear those rules”. The same applies as regards divergence inwards handling compared to other legally resident third-country nationals in addition to nationals.
There is no information inwards the judgment close the origins of this test. Unlike the AG opinion, the judgment does non comprise whatsoever reference to non-discrimination provisions or other key rights standards, in addition to at that spot is no indication as to whether it is a reformulation of the “necessary in addition to objectively justified”-requirement listed inwards the Stockholm Programme either.
Still, it is security to say that the Court’s reasoning bears resemblance to the non-discrimination exam nether Article 21 Charter in addition to Article xiv ECHR (i.e. that divergence of handling of persons inwards comparable situations on trouble organisation human relationship of a prohibited discrimination the world must endure objectively in addition to reasonably justified). It is hence of import to banking concern complaint that the CJEU links the fulfilment of the comparable situation-requirement nether the QD to the objective of the disputed national provision, which is a different in addition to (from an applicant’s perspective) less favourable approach than that applied yesteryear the ECtHR inwards non-discrimination cases. In the Hode in addition to Abdi case (relied on yesteryear the AG), the ECtHR thus ruled that refugees who married afterwards leaving their solid set down were inwards an analogous seat amongst refugees who married earlier this dot inwards fourth dimension as good as amongst third-country national students in addition to workers solely because the immigration status held yesteryear all groups was of a express nature. The ECtHR disregarded the Great Britain Government’s objection concerning the role of the diverse immigration statuses existence fundamentally different. In fact, from a non-discrimination perspective, the CJEU’s reasoning inwards Alo in addition to Osso is alone confusing since the assessment of both aims seat frontwards yesteryear the German linguistic communication government is ameliorate characterised as a proportionality assessment (similar to the 1 conducted yesteryear the AG) than an assessment of the “objective comparability” of subsidiary protection beneficiaries amongst other groups of legally residing third-country nationals as regards the aims pursued yesteryear the place-of-residence condition. This is illustrated yesteryear the fact that the CJEU’s arguments concerning the economical burden-sharing aim inwards reality concerns whether the place-of-residence status is an appropriate agency to achieve that aim.
Although it is far from for certain that the CJEU intended to or fifty-fifty found it relevant to align the exam developed nether Articles 29 in addition to 33 QD amongst that of Article xiv ECHR, the vocabulary chosen yesteryear the Court makes it reasonable to depict parallels in addition to compare amongst that provision. And yesteryear departing from the approach of the ECtHR inwards a real similar illustration in addition to leaving it for the referring national courtroom to apply the exam inwards practise inwards low-cal of relatively abstract guiding criteria, the CJEU creates undue legal certainty close the applicable non-discrimination measure inwards cases involving divergence of handling 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
