By Margarite Helena Zoeteweij
On 1 March 2016 the Court of Justice of the European Union gave its judgment in the joined cases of Ibrahim Alo and Amira Osso, Cases C-443/14 and C-444/14, ruling that the EU’s Qualification Directive does not sanction the imposition of restrictions of the freedom of movement for beneficiaries of subsidiary protection, and that such a limitation is not justifiable for reasons of territorial sharing of social assistance burdens, while at the same time leaving it up to the referring German Federal Administrative Court to decide whether the limitation can be justified for reasons of migration and integration policy. The judgment comes in the midst of Europe’s biggest migrant crisis since World War II, and affects especially the rights of the beneficiaries of subsidiary protection status – those seekers of international protection that do not qualify as ‘refugees’, – the number of which is currently booming in Europe. The judgment will have instant and far-reaching consequences on the leeway of the national authorities in their dealings with beneficiaries of subsidiary protection status, especially since the Court confirms that, in principle, refugees and beneficiaries of subsidiary protection status are entitled to the same catalog of rights contained in Chapter VII of the Qualification Directive.
Facts of the cases
Alo and Osso are Syrian nationals who have come to Germany in 1998 and 2001 respectively. Whereas their applications for asylum were unsuccessful, they were granted provisional leave to remain. They started receiving social security benefits from the date of their application for asylum onwards. After applying for asylum anew, both Alo and Osso were granted subsidiary protection status by the German authorities. Subsidiary protection status, introduced in EU law by the predecessor of the 2011 Qualification Directive, a legal instrument setting the minimum standards governing eligibility for refugee status or other forms of international protection in the EU Member States, complements the refugee protection, as persons who do not qualify as a refugee but who can nevertheless not be returned as he or she would then face a real risk of suffering serious harm. This status has fewer rights associated with it than the status of refugee.
In line with the General Administrative Instructions regarding the application of the 2004 Law on the residence, employment and integration of foreign nationals, issued by the German Minister for the Interior in 2009, Alo and Osso were issued residence permits which included a condition requiring them to take up residence in a designated area of Germany in October 2012. The German Minister argued in his 2009 Instructions that the residence condition should be imposed on beneficiaries of subsidiary protection status receiving social security benefits in order to secure an even geographical spreading of such beneficiaries of subsidiary protection for the sake of distribution of the fiscal burden over the Laender municipalities and for the facilitation of their integration.
Actions against the residence conditions at two different German courts were dismissed at first instance and in appeal in case of Alo, but upheld in appeal in case of Osso. In appeal on a point of law, the two cases were then brought before the German Federal Administrative Court, which decided to stay proceedings and refer the following questions to the Court of Justice of the European Union:
- Does Article 33 of the Qualification Directive allow for a condition limiting residence to a certain geographical area;
- Is such a condition, imposed solely on beneficiaries of subsidiary protection for the sake of territorial redistribution of social assistance burdens, compatible with Articles 29 and/or 33 of the Directive;
- Is such a condition, imposed solely on beneficiaries of subsidiary protection based on abstract grounds of migration or integration policy, compatible with Articles 29 and/or 33 of the Directive?
Opinion of AG Cruz Villalon
On 6 October 2015 AG Cruz Villalon gave his Opinion in the joint cases. He set a considerable part of his Opinion apart for the assessment of the first question referred to the CJEU by the German Federal Administrative Court, and came to the conclusion that, in the light of the general scheme and purpose of the Directive and taking Articles 23 and 26 of the Geneva Convention and the fundamental rights as compulsory reference points, and furthermore based on the travaux preparatoires of the predecessors of the Qualifications Directive and the Reception Conditions Directive, Directives 2004/83/EC and Directive 2003/9/EC, the concept of ‘freedom of movement’ in Article 33 of the Qualifications Directive includes both freedom to move and freedom to choose the place of residence within a Member State. Therefore, the contentious provision of the Minister’s Instructions, obliging the competent authorities to impose a restriction on the place of residence of persons that have been granted the subsidiary protection status in so far as and so long as they receive social security benefits, constitutes a restriction of the freedom of movement as provided for in Article 33 of the Qualifications Directive.
Having thus answered the first referred question in the affirmative, AG Cruz Villalon then analyzed the question of whether Member State authorities’ treatment with regard to the freedom of movement may be different for beneficiaries of different kinds of international protection, or for beneficiaries of international protection and other third country nationals. He came to the conclusion that, according to the settled case-law of the Court and in line with Article 52(1) of the Charter of Fundamental Rights, such a difference in treatment is only justifiable when it relates to a legally permitted aim pursued by the legislation in question, and is proportionate to the aim pursued by the treatment concerned.
The AG then considered that whereas the aims of the measure restricting the free movement, namely the distribution of the budgetary burden in order to prevent social tension and its negative consequences for integration, constitute in themselves legitimate objectives, the AG finds that with regard to the distribution of the budgetary burden there are less restrictive measures that would enable the evening out of budgetary imbalances across a State. Furthermore, imposing the restriction only on the beneficiaries of subsidiary protection does not serve the aim of redistribution at all, and the difference in treatment can therefore not be justified on this ground, either. Therefore, a place of residence condition for persons holding subsidiary protection status for the sake of the redistribution of the burden of social assistance is not compatible with Article 33 of the Qualification Directive, according to the AG.
With regard to the possible justification on grounds relating to immigration and integration policy, the AG argues that it is difficult to avoid a concentration of beneficiaries of international protection by means of less restrictive measures. It is up to the national court to assess the specific nature of the social context and concrete circumstances of obvious social tension owing to a concentration of a large number of beneficiaries of international protection in receipt of social security benefits, in order to decide on the proportionality of the measure. Additionally, in order for the measure to be compatible with the principle of equality of treatment, the restrictive measure should not exclusively be applicable to persons benefiting from a subsidiary protection status, which, according to AG Cruz Villalon, should also be assessed by the national court.
Judgment of the Court
The Court considered the referred questions and AG Cruz Villalon’s Opinion and came to the following conclusion:
Interpreted in the light of Article 26 the Geneva Convention, the right to freedom of movement enshrined in Article 33 of the Qualification Directive includes a person’s right to move freely and to choose his/her place of residence in the territory of the State that has granted international protection status to him/her. Whereas according to Article 20(2) and recital 3 of the Directive the content of the different types of international protection should be the same – unless otherwise indicated -, nothing in Article 33 gives reason to think that a distinction with regard to the content of the right to freedom of movement can be made based on the type of protection awarded. The residence condition imposed on beneficiaries of subsidiary protection status by the Minister’s Instructions is therefore a prima facie infringement of Article 33 of the Qualification Directive.
With regard to the question of compatibility of the imposition of a residence condition with Articles 29 and 33 of the Directive, after having found that these Articles in principle require an equal treatment of all beneficiaries of international protection as regards the freedom of movement (Article 33) and a treatment that is equal to nationals of the relevant Member State in the matter of welfare benefits (Article 29), the Court concludes that a residence condition can still be imposed on beneficiaries of subsidiary protection status, if they are not in an objectively comparable situation with beneficiaries of other international protection status or nationals of the Member States as regards the objective pursued by the national law that seems to infringe on Articles 29 and 33 (point 54 of the judgment). As social security benefits granted to a person will always entail financial burdens for the institution paying out the benefits – regardless of the person who is at the receiving end – the Court found that the distinction pertaining to the imposition of a residence condition made between beneficiaries of subsidiary protection on social welfare on the one hand side and beneficiaries of other international protection status or nationals of the Member State on social welfare on the other hand side is not justifiable for reasons of an appropriate geographical distribution of the financial burden of the welfare.
Nonetheless, the German integration argument found a more willing ear at the Court. As mentioned before, the Minister’s Instructions themselves indicate that the residence condition should be imposed to prevent the concentration in certain areas of third country nationals in receipt of welfare benefits as this could lead to the emergence of social tension all the negative consequences this entails for the integration of the third country national, and further to locate them in places where they can make ready use of integration facilities available there.
In this regard, the Court found that whereas with regard to the financial effects of access to social security benefits the positions of German nationals and any third country national are comparable – making it impossible to justify a different treatment apropos the freedom of movement – with regard to integration this may not be the case. The Court therefore ruled that in case the position of beneficiaries from subsidiary protection can be regarded as being different from third country nationals legally resident in Germany on grounds that are not humanitarian or political or based on international law and who are in receipt of welfare benefits, as these third country nationals could presumably only reside in Germany in case they were able to financially support themselves and may therefore be assumed to be integrated by the time they would be eligible for social security benefits, the residence condition does not infringe on Article 33 of the Qualification Directive. The Court subsequently left it to the referring court to decide whether that is the case.
Comparing the AG’s Opinion and the Court’s ruling, one of the differences that jumps to the fore is that the AG devotes quite a substantial part of his Opinion to the discussion of the right to non-discrimination as an individual criterion for the assessment of the legality of the German Minister’s Instructions. He does so by analyzing the principle of equal treatment not only in the context of the Directive, but also in the context of the Charter of Fundamental Rights of the EU, the ECHR and the Geneva Convention, and through the examination of these legal instrument concluding that differential treatment according to immigration status is only justifiable if the reason for this differential treatment passes a strict proportionality test. In contrast to the detailed analysis non-discrimination in EU and other international legal instruments done by the AG in his Opinion, the Court only briefly mentions Articles 23 and 26 of the Geneva Convention as guideline for the interpretation of Articles 29 and 33 of the Qualification Directive. For this reason, the origins of the test of comparability of the contested German provision with the Qualification Directive applied further on in its ruling by the Court may be difficult to understand when not read in conjunction with the AG’s Opinion. Without knowledge of the AG’s Opinion, the test applied by the Court may still sound obvious (after all, constitutional guarantees are generally interpreted according to the Aristotelian conception of equality: treat like cases alike and different cases differently) but its legal substantiation is much weaker than it would have been if the Court had followed the AG on this point.
For the same reason (the lack of references to EU-external international legal instruments), the margin of discretion left to the national court to decide on the proportionality of the residence condition for the sake of integration is larger than it would have been in case the Court would have followed up the AG’s Opinion. The view of the Member States on what measures are conductive for the integration of third country nationals vary greatly, as we may conclude from the Court’s case law in different contexts (for example the context of the Family Reunification Directive and the Long Term Residents Directive, see the Court’s rulings in K & A and P & A). Less discretion would have increased the legal certainty of those involved.
Another discrepancy in the Opinion and the Judgment is the fact that whereas the Court linked the measure’s justifiability for reasons of facilitation of integration solely to the generic difference re integration between the situation of third country nationals ‘otherwise’ legally resident in the Member State (on grounds that are not humanitarian or political or based on international law) and the situation of the beneficiary of subsidiary protection status, the AG stressed twice in his Opinion that abstract grounds connected to immigration and integration considerations cannot be enough to justify a measure such as the place of residence condition, and that only pressing reasons linked to specific immigration and integration considerations (para. 98), linked to concrete situations (para. 105) may justify such a measure. This line of reasoning is absent in the Court’s judgment, and this absence can also be retraced to the Court’s ruling being generally based on the Directive, whereas the AG’s Opinion takes the broader fundamental rights framework into account.
On a more positive note, the Court confirmed, based on recitals 8, 9 and 39 of the Qualification Directive, the call of the Stockholm Programme to establish a uniform status for all beneficiaries of international protection and Article 20(2) of the Directive itself, that the Directive now affords the rights and benefits of Chapter VII of the Directive to beneficiaries of subsidiary protection and refugees alike, with the exception of derogations which are necessary and objectively justified. A like provision was not present in the predecessor of the Qualification Directive, for which reason the Court previously (in El Kott) had to refer to the Geneva Convention. With the insertion of Article 20 however, and with the Court’s ruling in Alo and Osso, the external reference to the Geneva Convention in cases such as El Kott is no longer necessary. It remains to be seen whether this is a positive development or not. Whereas the Court confirms that the objective of this change and others in the recast Qualification Directive is the full and inclusive application of the Geneva Convention, read in such a way Article 20(2) might also serve to seal the EU system off from reference to and comparison with any external source of rights for beneficiaries from international protection, similar to the way the Court sometimes uses the provisions of the Charter of Fundamental Rights without making reference to their equivalent in the ECHR. But this is a discussion that falls outside the scope of the case at hand.