By Sarah Progin-Theuerkauf
On 21 November 2018 the Court declared a provision of the Law on needs-based minimum income protection in Upper Austria which provides that refugees with a temporary right of residence are granted less social benefits than Austrian nationals and refugees with a permanent right of residence incompatible with Article 29 of the Qualification Directive (Directive 2011/95/EU). The case is important, as the Court also highlighted that the right of refugees to equal treatment with nationals of the respective state with regard to public relief and assistance directly stems from the Geneva Refugee Convention, which does not make the rights to which refugees are entitled dependent on the length of their stay in the respective State. The Court also emphasized that a refugee may directly rely on the incompatibility of the provision with Article 29 of the Qualification Directive before the national courts.
The above-mentioned question arose in a dispute between Mr. Ayubi, a third country national, and the Bezirkshauptmannschaft Linz-Land (District Administrative Authority of Linz-Land) concerning the decision by the authority to grant Mr. Ayubi and his family assistance for the provision of the means of subsistence and housing for himself and his family in the form of a basic allowance and a temporary supplementary allowance, according to the Law on needs-based minimum income protection in Upper Austria.
Mr. Ayubi was granted refugee status in Austria in September 2016. He was also granted asylum, entitling him to a residence permit for three years. In March 2017, Mr. Ayubi submitted an application for assistance for the provision of the means of subsistence and housing for himself and his family. In April 2017 the District Administrative Authority granted him the minimum subsistence benefits under Austrian law. What one has to know here is that, since a reform of the relevant national legislation in 2015, refugees with temporary residence permit in Austria are treated in the same way as beneficiaries of subsidiary protection (the second form of international protection according to the Qualification Directive, which is granted to persons not being individually persecuted in their countries of origin, but who fear other serious harm, like war refugees) as regards social assistance, meaning that they receive benefits which are much lower than those paid to Austrian nationals. Only refugees with a right of permanent residence are treated in the same way as Austrian nationals.
Mr. Ayubi brought an action against the District Administrative Authority’s decision, arguing that the unfavorable treatment of refugees who are not entitled to permanent residence status was incompatible with EU law.
The Regional Administrative Court Upper Austria, seized with the case, considered that Austrian law gives rise to a difference in treatment of refugees with a right of temporary residence with regard to the grant of rights laid down by Article 29 of the Qualification Directive, even though those refugees are in a situation comparable to that of refugees with a right of permanent residence. It therefore decided to refer the question to the European Court of Justice for a preliminary ruling.
Reasoning of the Court
The Court recalled that Article 29 of the Qualification Directive lays down a general rule that beneficiaries of international protection (which includes refugees and beneficiaries of subsidiary protection) are to receive the same necessary social assistance as provided to nationals of that Member State (see also Alo and Osso, also commented here). Article 20(2) allows Member States to derogate from that general rule with regard to beneficiaries of subsidiary protection, limiting social assistance to core benefits. However, the exception does not apply to refugees.
The Court then analyzed the precise wording “necessary” in Article 29(1). It came to the conclusion that it does not make sense to interpret it as a possibility to fix the benefits at a lower level than that granted to nationals of the Member State, especially in the light of Article 23 of the Geneva Refugee Convention. The Convention covers all refugees and does not make rights dependent on the duration of the residence permit they have.
Moreover, refugees who have recently arrived are in greater need of practical help than refugees having resided for a number of years in the Member State. According to the Court, treating them unfavorably is not an appropriate measure to alleviate such a situation.
Finally, the Court also rejected Austria’s argument that the payment of social security benefits to refugees is a considerable burden. The grant of social security benefits entails costs, regardless of whether the person is a refugee, a beneficiary of subsidiary protection, or an Austrian.
Therefore, the Court concluded that the level of social security benefits paid to refugees, whether they have a temporary or a permanent residence permit, must be the same as that offered to nationals of that Member State.
The Court also confirmed that a refugee is able to rely on the incompatibility of the Austrian provision before the national courts, as Article 20 of the Qualification Directive is unconditional and sufficiently precise, and Austria has failed to correctly implement the article into national law. It therefore has direct effect.
From a strictly legal point of view, the Ayubi case is not very complicated. It was perfectly foreseeable that the Court would decide exactly the way it did: The Geneva Convention sets the legal framework for refugees, and a refugee is a refugee, even if a state creates different categories of refugees and grants them different residence permits.
It is more the practical and political impact of the decision that is enormous. In times of tense discussions on the issue of migration, the judgment may be explosive and will probably be used by certain political parties to root for a strict interpretation of the notion of refugee, more border controls, an externalization of asylum procedures, or even a termination of the Geneva Convention.
The Court must therefore be applauded; it did not give in and defended the only reasonably arguable position: National law is not able to abrogate or restrict obligations deriving from international law, and the Geneva Convention is very clear as to which rights refugees are entitled to. Equal treatment with nationals regarding access to social assistance is one of the main pillars of refugee status. However, as the Geneva Convention does not have its own international tribunal, decisions at another level than the national one interpreting the convention are rare and states often get away with violations of the convention. The Court, via the interpretation of the Qualification Directive (who took up the terms of the Geneva Refugee Convention), is the only supranational instance to (indirectly) interpret the convention and does this job very seriously. Thus, the European Union is on its way to become a main actor in international refugee protection.