CJEU - Case C‑713/17, Ayubi, 21 November 2018

Facts:

On 30 September 2016, Mr Ayubi was granted refugee status by the Federal Bureau for Immigration and Asylum of Austria and was therefore entitled to a temporary who was a holder of a temporary residence permit residence permit according to Austria’s recent amendments in asylum law. Mr Ayubi made an application for assistance for the provision of means of subsistence and housing for himself and his family. In April 2017, he was granted assistance in the form of cash payments, however, due to his residence status, he was only entitled to claim the minimum subsistence benefits. Mr Ayubi subsequently complained that differential treatment was incompatible with EU law. Indeed, only refugees with a permanent right of residence would have the same treatment as Austrian nationals. The Regional Administrative Court stayed proceedings and referred the following questions to the CJEU:

Is Article 29 of Directive 2011/95 …, under which a Member State has the obligation to provide to beneficiaries of international protection (in the Member State that granted such protection) the same necessary social assistance as provided to nationals of that Member State, to be interpreted as satisfying the criteria for direct applicability as laid down in the case-law of the Court of Justice of the European Union?

Is Article 29 of [Directive 2011/95] to be interpreted as precluding national legislation which provides that only persons granted asylum with permanent residence be given social assistance in the form of needs-based minimum benefits in full and to the same extent as nationals of the Member State, but provides for the reduction of social assistance from needs-based minimum benefits for those persons granted asylum with only temporary residence, and consequently, in the same amount of social assistance as is awarded to persons eligible for subsidiary protection?’

Decision & reasoning:

The Court began by first addressing the second question. Article 29(1) Directive 2011/95 provides a general rule that beneficiaries of international protection, including refugees, are to receive the same social assistance in the Member State that has granted protection status as provided to nationals of that Member State. Article 29(2) allows for derogation, but such derogation from that rule is only applicable to beneficiaries of subsidiary protection, who may be limited to core benefits.

The Court added that persons entitled to refugee protection should be accorded the same treatment regarding assistance as provided to nationals of the Member State in accordance with Article 23 of the Geneva Convention. Article 29 Directive 2011/95 and Article 23 Geneva Convention do not make this treatment dependant on the length of the applicant’s stay in the Member State. As a result, refugees with a residence permit valid for three years are entitled to the same level of social assistance as nationals of the same Member State. The Court added that those with refugee status are objectively in a more precarious situation than nationals of a Member State, and treating such individuals unfavourably does not address this matter. 

On the issues of question one, the Court observed that Article 29(1) confers on States a margin of discretion to determine the level of social assistance that may be considered necessary. However, there is a duty on Member States to produce results ensuring every refugee to which it grants its protection enjoys the same level of social assistance as that for nationals. Moreover, it is for courts and administrative bodies to apply EU law in entirety and to protect rights which the later grants to individuals and to disapply any contrary provisions of domestic law. As a result, refugees may rely on the incompatibility of domestic and EU legislation to remove restrictions placed on their rights.

Outcome:

1.      Article 29 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 it precludes national legislation, such as that at issue in the main proceedings, which provides that refugees with a temporary right of residence in a Member State are to be granted social security benefits which are less than those received by nationals of that Member State and refugees who have a permanent right of residence in that Member State.

2.      A refugee may rely on the incompatibility of legislation, such as that at issue in the main proceedings, with Article 29(1) of Directive 2011/95 before the national courts in order to remove the restriction on his rights provided for by that legislation.