CJEU - Joined Cases C‑443/14 and C‑444/14, Kreis Warendorf v Ibrahim Alo and Amira Osso v Region Hannover

Facts:

The two applicants are Syrian nationals who were granted subsidiary protection, and in accordance with German law as they were in receipt of social security benefits, they were issued with residence permits accompanied by an obligation to reside in a particular part of Germany. They both challenged this obligation but their appeals were rejected, upon which the matter came before the German Federal Administrative Court who stayed proceedings and referred the following questions to the CJEU:

1.      Does the condition requiring residence to be taken up in a geographically limited area (municipality, district, region) of a Member State constitute a restriction of freedom of movement within the meaning of Article 33 of Directive 2011/95, where the foreign national can otherwise move freely and stay in the territory of that Member State?

2.      Is a place-of-residence condition imposed on beneficiaries of subsidiary protection status compatible with Article 33 and/or Article 29 of Directive 2011/95, where it is based on the objective of achieving an appropriate distribution of social assistance burdens among the relevant institutions within the territory of the State?

3.      Is a place-of-residence condition imposed on beneficiaries of subsidiary protection status compatible with Article 33 and/or Article 29 of Directive 2011/95, where it is based on grounds of migration or integration policy, for instance to prevent points of social tension as a result of the accumulated settlement of foreign nationals in certain municipalities or districts? Are abstract migration or integration policy grounds sufficient in this regard or must such grounds be specifically ascertained?

Decision & reasoning:

The CJEU first assessed the meaning of freedom of movement under Article 33 of the Qualification Directive, noting that in some language versions the title of Article 33 encompasses the right to choose the place of residence whereas in others freedom of movement and choice of residence are distinct. Praying aid to the general scheme and purpose of the rules of the Directive then, the CJEU highlights the necessity of ensuring consistency with the Geneva Convention (GC) and its full and inclusive application. Moreover, the Court specifically requires that the GC is used as interpretative guidance. By virtue of the harmonisation of statuses in the QD and as foreseen in the Stockholm Programme the application and guidance of the GC is equally applicable to subsidiary protection status holders.  Therefore, the Court, citing Article 26 GC which expressly provides for refugees’ freedom of movement and right to choose their place of residence, goes onto find that restricting the choice of residence for subsidiary protection status holders would create an untenable distinction between beneficiaries of international protection and would also constitute a restriction of freedom of movement guaranteed by Article 33.

Secondly, the Court refers to Article 29 of the Directive (read in conjunction with Article 23 of the GC) to argue that benefits, even where limited to core benefits for subsidiary protection beneficiaries, must be provided under the same conditions of eligibility applicable to nationals of that Member State. However German legislation specifies that subsidiary protection status holders are only eligible for welfare benefits if they are prepared to accept a residence condition. According to the Court Articles 29 and 33 preclude such an imposition, even where the purpose of such rules are to achieve financial distribution. Indeed, such conditions are incompatible with Article 33 where subsidiary protection status holders are in an objectively comparable situation with those of TCNs. However, the Court does accede to the argument that a Member State may provide for residence conditions on subsidiary protection status holders if those groups are not in an objectively comparable situation as i.e. refugees, nationals of the Member State.

Lastly, the Court specifics that Article 29 of the QD is not relevant when assessing whether residence conditions can be imposed upon subsidiary protection status holders in receipt of social security benefits where the objective is to facilitate the integration of third-country nationals. This is because subsidiary protection beneficiaries are not in a comparable situation as German nationals where the objective is to facilitate the integration of TCNs. With regards to Article 33, however, the Court finds that it is up to the national court to assess whether a beneficiary of international protection in receipt of welfare benefits will face greater difficulties with integration compared to another TCN who is legally resident in Germany and in receipt of such benefits. According to the Court this might be the case if the latter group of persons are eligible for welfare benefits only after a certain period of continuous legal residence in the host Member State. Such residence implies a degree of integration which would not be comparable to that of beneficiaries of international protection. 

Outcome:

1.      Article 33 of Directive 2011/95/EU of the European Parliament and of the Council of 13 December 2011 on standards for the qualification of third-country nationals or stateless persons as beneficiaries of international protection, for a uniform status for refugees or for persons eligible for subsidiary protection, and for the content of the protection granted, must be interpreted as meaning that a residence condition imposed on a beneficiary of subsidiary protection status, such as the conditions at issue in the main proceedings, constitutes a restriction of the freedom of movement guaranteed by that article, even when it does not prevent the beneficiary from moving freely within the territory of the Member State that has granted the protection and from staying on a temporary basis in that territory outside the place designated by the residence condition.

2.      Articles 29 and 33 of Directive 2011/95 must be interpreted as precluding the imposition of a residence condition, such as the conditions at issue in the main proceedings, on a beneficiary of subsidiary protection status in receipt of certain specific social security benefits, for the purpose of achieving an appropriate distribution of the burden of paying those benefits among the various institutions competent in that regard, when the applicable national rules do not provide for the imposition of such a measure on refugees, third-country nationals legally resident in the Member State concerned on grounds that are not humanitarian or political or based on international law or nationals of that Member State in receipt of those benefits.

3.      Article 33 of Directive 2011/95 must be interpreted as not precluding a residence condition, such as the conditions at issue in the main proceedings, from being imposed on a beneficiary of subsidiary protection status, in receipt of certain specific social security benefits, with the objective of facilitating the integration of third-country nationals in the Member State that has granted that protection — when the applicable national rules do not provide for such a measure to be imposed on third-country nationals legally resident in that Member State on grounds that are not humanitarian or political or based on international law and who are in receipt of those benefits — if beneficiaries of subsidiary protection status are not in a situation that is objectively comparable, so far as that objective is concerned, with the situation of third-country nationals legally resident in the Member State concerned on grounds that are not humanitarian or political or based on international law, it being for the referring court to determine whether that is the case.

Observations/comments:

The judgment was preceded by an Opinion from Advocate General Cruz Villalon, a summary of which can be found here.

For further analysis of the case please see: EU law analysis, Enhancing and diluting the legal status of subsidiary protection beneficiaries under Union law – the CJEU judgment in Alo and Osso, Dr. Louise Halleskov Storgaard.