Case summaries
The reception conditions for beneficiaries of international protection in Bulgaria are such that they may face severe material deprivation due to “indifference” on the part of the authorities (cfr. CJEU, Ibrahim), potentially amounting to a violation of Article 3 ECHR / Article 4 CFREU.
When the State Secretary decides that a request for international protection is not admissible, because the applicants have refugee status in Bulgaria, it is not sufficient for him to refer to the principle of mutual trust between EU Member States and to the Council of State’s jurisprudence, but he is obliged to examine the applicant’ s individual circumstances and to obtain specific information and guarantees from the Bulgarian authorities.
The principle of equality is violated if the amount of minimum benefits is calculated according to the duration of residence in Austria within the last six years. Persons entitled to asylum cannot be treated in the same way as persons who can return to their country of origin at any time
Persons entitled to refugee protection should be accorded the same treatment regarding assistance as provided to nationals of the Member State. 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.
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.
The Regional Administrative Court of Upper Austria requests a preliminary ruling of the CJEU concerning the interpretation of Article 29 Directive 2011/95/EU in the context of social assistance for persons entitled to asylum with a temporary residence permit.
1) Must Article 29 Directive 2011/95/EU, entitling persons subject to international protection to the same level of social assistance in the Member State as nationals of this Member State, be interpreted as fulfilling the conditions for direct effect as set out in the CJEU’s jurisprudence?
2) Must Article 29 Directive 2011/95/EU be interpreted in the way, that it opposes national legislation that provides for persons with a temporary residence permit the same level of social assistance as for persons falling under subsidiary protection, while persons with a permanent residence permit are allowed to the social assistance provided for nationals of the Member State concerned?
When examining the acceptance of an asylum claim, the authorities have to study whether the testimony of the applicant is based on presumably true facts. Only if it is manifestly false could the admission of this application be denied.
The principle of family unity has to be taken into account regarding the assessment of the circumstances of the applicant, especially since his sister’s application for international protection was accepted.
The Constitutional Court ruled that Section 5(3) Nr. 4 NÖ MSG, which excludes beneficiaries of subsidiary protection from benefiting from social assistance out of the means-tested minimum income scheme when the person already receives social assistance covered by NÖ GVG is compatible with constitutional rights. It held that it does not constitute a violation of the principle of non-discrimination amongst foreigners. Given the provisional character of residence rights for beneficiaries of subsidiary protection such a legal rule falls within the wide margin of appreciation of the legislator.
The purpose of the child care benefit “500 ” envisaged in the Law of 11 February 2016 is to provide assistance to parents and guardians in raising children by covering some expenses related to their needs. Excluding refugees from persons entitled to this benefit because their residence card does not contain a note “access to labour market” would lead to unfair differentiation of the legal situation of the foreigners (dividing them into those who were issued a residence card with the note “access to labour market“ and those issued a residence card without this note) and of the children (because of their origin and nationality).
Article 33 of the Qualification Directive, read in conjunction with the Geneva Convention, requires Member States to allow persons to whom they have granted subsidiary protection status not only to move freely within their territory but also to choose their place of residence within that territory. However, the Directive does not prevent beneficiaries of subsidiary protection status from being subject to a residence condition for the purpose of promoting their integration where said group of persons are not in a comparable situation as non-EU citizens.