Slovenia - Administrative Court of the Republic of Slovenia, 17 January 2013, Judgment I U 1921/12

Facts:

The new Governmental Decree lowered financial aid for asylum seekers accommodated at private addresses to 50%. A family from Kosovo living at a private address instead of a reception centre, due to the schooling obligations of their children, appealed against the decision of the Migration Office regarding the amount of financial aid granted.

In the appeal the family also argued that they should be entitled to pocket money and that the provision in the Act on International Protection (AIP), according to which only those asylum seekers who are living in a reception centre have the right to pocket money, is unconstitutional.

Decision & reasoning:

1.       Financial aid in the case of being accommodated at a private address:

The Governmental Decree provides that financial aid for an adult asylum seeker accommodated at a private address is 50% of the minimum income in Slovenia. The Court sees a problem in such legislation, since it does not align the right to financial aid with the comparable social aid for guaranteeing minimum existential conditions of living, as it is in the case of third country nationals with temporary permission to stay. The power of the competent Ministers to determine the relationship between the financial aid and minimum income to such an extent is actually a blanket power to independently determine rights and obligations and it may endanger the fundamental right to human dignity of the applicants for international protection.

Possible political interest in reducing the numbers of applicants for international protection by a lower minimum threshold of social protection, which is otherwise applicable to other third country nationals, cannot be a more legitimate objective than the principle of the welfare state. The Constitutional Court has already held in its jurisprudence that "privileging the socially disadvantaged" does not constitute discrimination but implementation of the principles of the welfare state.

The right to basic care and financial assistance should be considered particularly in the light of EU law. From the Court of Justice’s judgment in C-179/11, La CIMADE, it follows that, even for a brief period, the asylum seekers’ right to human dignity cannot be violated in connection with the minimum standards of reception and, therefore, there is no need for "systematic deficiencies" in order for the legal protection to be activated (as it seems to result from the N.S. and M.E. case). The CJEU also said that "Article 13(1) of the Reception Conditions Directive relating to the period in which the reception conditions must be available to the applicants, including housing, food and clothing allowance for daily expenses, provides that this period starts when the asylum seeker lodged an application for asylum". The Court also adds that "the said Directive seeks to ensure full respect for human dignity and to promote the application of Articles 1 and 18 of the Charter”.

Considering the content of the Reception Conditions Directive and the jurisprudence of the ECtHR regarding Article 3, given that Article 1 of the Charter has to be applied in connection with the case law of the ECtHR relating to Article 3, the right to human dignity undoubtedly includes (among others) the following elements: housing, nutrition, hygiene, clothing and allowance for daily expenses. To this end the right to necessary health care should also be added which "shall include at least emergency care and essential treatment of illness”, as well as the right to education for children, in the context of protecting the dignity of children who are of school age.

2.       Right to pocket money for asylum seekers living at a private address:

The AIP gives the right to an allowance only to asylum seekers living in reception centre.

The Geneva Convention does not provide for a right to pocket money neither does it appear from the ECtHR case law that pocket money  is an integral part of the minimum social assistance for the protection against inhuman treatment of applicants for international protection. The fact that pocket money is not mentioned in the Reception Conditions Directive does not mean that it does not fall within the scope of minimum standards for the reception of asylum seekers within the meaning of Article 1 of the Charter. The Reception Conditions Directive does not mention concrete material reception conditions (clothes, shoes, accessories for hygiene), however the Administrative Court cannot ignore that the CJEU in La CIMADE states the specific elements of the right to material reception conditions and in addition to food and clothing also states "a daily expense allowance".

Allowance or pocket money for the purpose of covering the daily expenditure is, thus, one element within the rights under Article 1 of the Charter which exceeds the threshold of ensuring mere survival for asylum seekers. In this sense, therefore, Article 1 of the Charter gives higher standards of protection than Article 3 of the ECHR to asylum seekers.

The Court held that the legislator may pursue the legitimate objective to have most of the applicants accommodated in the reception centre. With this housing policy the legislature has a certain margin of discretion given that in these administrative procedures the presence of applicants is very important and the Migration Office is in the best position to know what accommodation policy is most suited for the efficient and effective management of these procedures. However, in pursuing this discretion the legislature must not go beyond the case law of the CJEU, which explicitly states: "The allowance for daily expenses" as part of the rights referred to in Article 1 of the Charter.

Therefore, according to the Court, the legislature may grant more favourable allowance to the applicants residing in the reception centre, in order to reduce the number of requests to move to a private address. Furthermore, the general freedom of conduct and privacy of applicants who are relocated at private addresses is significantly less limited than for the applicants who are accommodated in the reception centre, because the latter must comply with the house rules. But the legislator cannot completely exclude applicants who live at private addresses from the right to an allowance. The applicants’ request to live in a private address was granted based on the schooling requirements of their children, therefore in this case there is no objective and justified ground for differentiating between them and other asylum seekers living in the reception centre regarding the right to pocket money.

In cases where national law is not in line with EU law, which guarantees certain rights to the applicant, it is not only the obligation of the courts, but also of the administrative bodies, not to apply the provisions of domestic law which are contrary to EU law, but apply EU law - in the present case, Article 13(1) of the Reception Conditions Directive, in conjunction with the CJEU judgment in La CIMADE case. The amount of the allowance is at the discretion of the Member States, but must, together with other elements of the material reception conditions, ensure the that Article 1 of the Charter is adhered to for international protection applicants. 

Outcome:

The Migration Office decision was quashed and the case was returned to the Migration Office for a new deliberation. 

Observations/comments:

Despite the court’s clear stance on the unconstitutional nature of relevant provisions in the AIP, the Court did not initiate a procedure before the Constitutional Court because of procedural reasons, not of relevance to this summary.

This case is very important as it provides content to Article 1 of the Charter. 

Other sources:

Universal Declaration of Human Rights