As so often happens when it comes to immigration, the streets of France again began to buzz with vague rumours when the Court of Justice of the European Union (CJEU) recently returned its ruling in the Dano versus Germany case[1]. “Prevention of social tourism” did the rounds of the media, without proper explanation of the content and scope of this decision. At the same time, other decisions of international courts were sending out conflicting messages as regards the social rights that can be claimed by migrants, including persons in irregular situations. Not one of these recent decisions has succeeded in bringing about any change of case law tack, nor do they form any kind of contradictory whole. They set out the basic rights of migrants with regard to welfare and the room for manoeuvre available to the authorities that claim to regulate access.

 

The Dano affair concerned the application by a family of European workers, none of whom have ever worked in Germany, a family already receiving several forms of basic welfare, to also receive an optional benefit, known as “basic insurance”[2], paid out to job-seekers. The CJEU upheld the lawfulness of the German authorities in refusing entitlement to this “non-contributory cash assistance” on the grounds that none of these European nationals was employed. It might be helpful to point out that a European regulation on the coordination of social security systems[3] makes distinction, for each country, of the list of forms of unconditional benefits to which European nationals are entitled and the optional forms of support, the benefit requested; in this case, falling within the latter category.

 

The free movement of European citizens is, in fact, limited by the Free Movement of Citizens Directive 2004/38/EC by the fact of their representing an “undue burden on the [welfare system of the] host Member State”. The Dano decisions sheds light on the definition of that concept.

The question that thus arises is the extent of the scope of that decision. Are, for instance, the mechanisms designed to tackle social emergencies affected? Consequently, if restrictions can be placed on European citizens, then what about the nationals of a third country whose right of residence is even more fragile?

 

National and European jurisprudence has answered this question: schools, the emergency health services and emergency shelters are part of a raft of fundamental rights preceding all consideration as regards residence. An approach of this kind is not easy to apply if some individuals join emergency systems that their right of residence will prevent them from leaving, the systems reaching saturation point and the rights of future applicants becoming difficult to guarantee. Nonetheless, with regard to basic rights, it is also difficult to claim to adjust the exercise of rights to available resources. It would indeed be hard to imagine that access to a school or to the right to vote should be made conditional upon available budgets. There is a tension that is difficult to resolve, but one that the ruling in the Dano case does not explain: an emergency mechanism is not the issue.

 

Conversely, other international case laws tend to reinforce the unconditional nature of acceptance into the emergency, health and social services. The European Committee of Social Rights delivered two decisions on 8 November last, according to two procedures against the Netherlands[4], led by the Conference of Churches[5] and by the European Federation of National Organizations Working with the Homeless (Fédération européenne des Associations nationales travaillant avec les Sans-abri – FEANTSA)[6].

Taken as a whole, the social rights recognized by the European Social Charter do not protect persons in irregular situations. The Signatory States did not wish to make these rights universal. Nevertheless, Article 13.4 makes specific provision for emergency assistance for non-residents, without regard for their employment situation. In terms of accommodation, two legal precedents against France and the Netherlands[7] made it clear that, even if the provisions of the Charter applied to foreign nationals in regular situations only, “that does not release the States from their responsibility to prevent the homelessness of persons in irregular situations in their jurisdictions, in particular of minors” (Art.31.2).

 

The applicability of basic social rights, that is, those that underly respect for human dignity, for foreigners, including those in irregular situations, has been reaffirmed by these two decisions[8] , so much so indeed that the decision of the Committee is preceded, even before an appraisal of the merits of the case, by a call for “immediate measures”, urging the government of the Netherlands to “take all possible action to protect, from any serious and irreversible harm, all persons at imminent risk of destitution ... such that their essential needs (housing, clothing, food) are satisfied”.

 

The Committee took the view that the failure of the State to ensure a system of emergency welfare and to guarantee minimum living conditions could not be whitewashed by arguments on migration policy, the powers of local authorities and the economic situation. The refusal of accommodation is a disproportionate means of regulating migration flows[9] . Furthermore, even if the policies are somehow decentralised, the States are still bound by the undertakings that they assumed in the treaties and must respect the rights[10]. The State must ensure that emergency assistance is actually provided to all persons who need it[11]. As for the argument of the difficulty in meeting demand in a period of crisis, the Committee hit the ball back saying that “the economic crisis should not have as a consequence the reduction of the protection of rights recognized by the Charter; the States Parties are thus bound to take all necessary steps to ensure that the rights of the Charter are effectively guaranteed at a period of time when beneficiaries need protection the most.”[12]

 

Solutions that leave human dignity out of the equation also happen to represent a violation of international law: “emergency shelters must always meet the safety requirements established by the Committee and must be adapted to the needs of those belonging to these groups” (FEANTSA versus the Netherlands, § 135). Everyone must be taken in, and in conditions respecting the dignity of the person: “Shelters must meet health, safety and hygiene standards and, in particular, be equipped with basic amenities such as access to water and heating and sufficient lighting. Another basic requirement is the security of the immediate surroundings.”

 

In international law, emergency accommodation increasingly seems to be acquiring the status of a basic right, conditioning human dignity and, consequently, obliging the Member States, without classification other than the fact of a person’s belonging to the human community. This appraisal is also supported by the line taken by the European Court of Human Rights (ECHR). In a recent judgment, Tarakhel versus Switzerland, 4 Nov. 2014, the Court refused the extradition of a family of new entrants from Switzerland to Italy, as is however provided in the Dublin Regulation, by virtue of the “first Member State reached” rule, under which the application for regularization would normally have to be formulated. In point of fact the Court found that, concerning a family with children, Italy did not provide any sufficient guarantee of accommodation and that, in the case in point, this would constitute inhuman and degrading treatment. Accommodation is thus considered as a minimum requirement, affecting the exercise of the universal right to dignity, at least for families with children, regardless of their right of residence - and whatever the migration flow treaties in force.

 

There is a raft of basic universal welfare rights, and not only forms of assistance that do not affect respect for human dignity, that are open to distinction. It is therefore not possible to restrict emergency assistance – including emergency accommodation – on the grounds of the situation regarding residence, migration policies or decentralized new-entrant integration policies.

 

 

[1] C.333-13, November 11th 2014.

[²] Defined by Book II of the Social Code (Sozialgesetzbuch, Zweites Buch), which makes provision for exclusions from receipt of this form of assistance, rendering it to all intents and purposes a discretional allowance.
[3] Regulation (EC) No. 883/2004.
[4] For a detailed analysis of these decisions, see the much-documented legal article by Carole Nivard, Revue Française des Droits de l’Homme, November 27th 2014.
[5] Collective Complaint No. 90/2013.
[6] Collective Complaint No. 86/2012.
[7] FIDH versus France, Comp. No. 14/2003. , DEI versus the Netherlands, Comp. No. 47/2008.
[8] FEANTSA versus the Netherlands, §§ 61 and 142; CEC versus the Netherlands, §§75 and 130.
[9] CEC versus the Netherlands, §§ 121-123 and FEANTSA versus the Netherlands, §§ 181-183.
[10] Constant Jurisprudence, CEDR versus Greece, Complaint No. 15/2003, §29.
[11] CEC versus the Netherlands, § 119 and FEANTSA versus the Netherlands, §§ 120-125.
[12] FEANTSA versus the Netherlands, § 128.