CJEU delivered its judgment in case C-713/17 (Ayubi)

Wednesday, November 21, 2018

On 21 November, the Court of Justice of the European Union (CJEU) ruled in case C-713/17, concerning the rights of refugees with temporary residence permits to social assistance benefits.

The case concerned the application for social assistance by a beneficiary of international protection, who was a holder of a temporary residence permit, according to Austria’s recent amendments in asylum law. Due to this residence status, the authorities granted him only the minimum subsistence benefits.

The applicant challenged the decision before the Regional Administrative Court of Upper Austria, arguing that the unfavourable treatment of refugees who are not entitled to permanent residence is contrary to EU law. The national court decided to refer a question to the CJEU on the compatibility of Article 29 of Directive 2011/95 with Austrian legislation reducing the amount of social assistance for persons granted asylum with only temporary residence to those awarded to persons eligible for subsidiary protection.

The Court first noted that, although Article 29(2) of the Directive allows Member States to derogate by limiting social assistance granted to beneficiaries of subsidiary protection status to core benefits, it is clear from the wording of that provision that that derogation is only applicable to beneficiaries of international protection and not to refugees. In the same line, Article 23 of the Geneva Convention also requires States to provide to refugees the same treatment with respect to public relief and assistance as is accorded to their nationals. Both legal texts cover all refugees and do not make the rights to which they are entitled dependant on the length of their stay in the Member State concerned or the duration of the residence permit they have.

According to the Court, the existence of Article 24 of the Directive, allowing Member States to issue a residence permit limited to three years, does not affect the aforementioned findings. Based on its own case law, the Court observed that the level of social security benefits paid to refugees by the Member State which granted that status, whether temporary or permanent, must be the same as that offered to nationals of that Member State. Lastly, the Court added, inter alia, that refugees who have recently arrived in that Member State will generally be in a greater need for practical help, than those who arrived some time ago, before the legislative reforms introduced the temporary residence permits.

The Court concluded that EU law precludes national legislation, 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. Moreover, the judges noted that a refugee may rely on this incompatibility of legislation 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.

This item was reproduced with the permission of ECRE from the weekly ELENA legal update. The purpose of these updates is to inform asylum lawyers and legal organizations supporting asylum seekers and refugees of recent developments in the field of asylum law. Please note that the information provided is taken from publicly available information on the internet. Every reasonable effort is made to make the content accurate and up to date at the time each item is published but no responsibility for its accuracy and correctness, or for any consequences of relying on it, is assumed by ECRE.   



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