CJEU: Joint Cases C-443/14 & C-444/14, Kreis Warendorf v Ibrahim Alo & Amira Osso v Region Hannover

Tuesday, March 1, 2016

German national law provided that subsidiary protection holders in receipt of welfare benefits would be issued residence permits subject to a condition to reside in a particular geographical area of Germany, though they were otherwise able to move freely around Germany and could temporarily stay outside this area (‘the residence condition’). The German Federal Administrative Court (FAC) requested a preliminary ruling from the CJEU on the compatibility of this with the recast Qualification Directive (rQD).  
By its first question the FAC asked whether the residence condition amounted to a restriction on freedom of movement, as guaranteed by Article 33 rQD. The CJEU noted that this term had to be interpreted consistently with the 1951 Convention and the EU Charter. Recitals 8, 9 and 39 stated the intention of the EU legislature to establish a uniform status for all beneficiaries of international protection (BIPs), with differences in rights and benefits between refugees and subsidiary protection holders subject to necessity and objective justification. Article 33 referred to ‘beneficiaries of international protection’ with no difference envisaged. Furthermore, Article 26 of the 1951 Convention interpreted the right to freedom of movement as including not only the right to move freely in the territory of the State granting refugee Status but also the right of refugees to choose their place of residence. As such, the residence condition constituted a restriction of freedom of movement contrary to Article 33, even though the beneficiary was able to move freely within the territory of Germany, and could temporarily stay outside the designated place of residence.

In its second question the FAC asked whether the residence condition was compatible with Articles 29 and 33 rQD where the aim was to avoid a disproportionate social assistance burden on relevant institutions.

The CJEU found that Article 33 rQD in light of Article 26 of the 1951 Convention made it clear that the right to freedom of movement for BIPs must be exercised under the same conditions and restrictions as those for refugees and other legally resident third country nationals.  The national rules at issue however, applied only to subsidiary protection holders, who were under more restrictive conditions.

Article 29 rQD and Article 23 of the Convention required subsidiary protection holders to be given social assistance under the same conditions as nationals of the relevant Member State. The German rules meant that only subsidiary protection holders were required to accept a residence condition in order to be eligible for social assistance. This would only be legitimate if other groups in receipt of benefits were not in an objectively comparable situation; but irrespective of immigration status, the grant of social assistance would have an impact on the distribution of social assistance burdens. 

Therefore the CJEU found that Articles 29 and 33 rQD precluded the imposition of a residence condition to subsidiary protection holders for the purpose of appropriate distribution of social assistance burdens where the rules did not impose this measure on refugees, legally resident third country nationals or nationals. 

By its third question the FAC asked whether the residence condition was compatible with Articles 29 and 33 rQD where the objective was to facilitate integration. The CJEU found that Article 29 rQD was irrelevant in this context as German nationals were in a different situation to subsidiary protection holders with regard to the objective of facilitating the integration of third country nationals. Article 33 did not preclude a residence condition such as the one at issue, for the objective of facilitating integration if subsidiary protection holders were not in an objectively comparable situation to other legally resident third country nationals. This could be the case if the latter were only eligible for welfare benefits after a certain period of residence, by which it could be assumed that they were sufficiently integrated. It was remitted to the FAC to determine whether in the two groups were in an objectively comparable situation or not. 

Please see here for the judgment, and press release. A summary of the Advocate-General’s opinion is available here.

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Freedom of movement (right to)
Material reception conditions
Reception conditions
Refugee Status
Subsidiary Protection