Ahmad Shah Ayubi v. Bezirkshauptmannschaft Linz-Land
The Court of Justice of the European Union ruled that all refugees, including those with only temporary residence permits, are entitled to the “needs-based minimum income protection” offered by the Austrian government to its citizens. Ahmad Shah Ayubi, a third-country national with refugee status and temporary residency, appealed the minimum subsistence benefits granted by the government, successfully arguing that European Union (EU) law requires that all refugees, citizens, and others who are eligible to receive state assistance be treated equally.
Mr. Ayubi’s refugee status qualified him for a three-year residency permit and enabled him to apply for state assistance. Under Austrian law, Mr. Ayubi’s temporary residence status restricted him to receiving the minimum amount of benefits, and the District Administrative Authority of Linz-Land granted him the minimum basic allowance and a temporary supplemental allowance.
A 2015 reform of Austrian state assistance legislation mandated that refugees with temporary residency be treated the same as people with “subsidiary protection status” (third-country nationals who require protection from serious harm but do not qualify for refugee status). Both groups only qualified to receive a basic allowance and a temporary supplement. Such assistance was lower than the “needs-based minimum income protection” provided to refugees with permanent residency and other permanent residents (e.g. citizens).
The Court noted the United Nations (UN) Convention on the Status of Refugees principle that refugees and nationals should be treated equally with regard to public assistance. It took this into account when interpreting Article 29 of EU law Directive 2011/95, which requires member states who grant a person protection such as refugee status to also grant them social assistance on par with citizens. That EU law only allows states to restrict social assistance to “core benefits” for people with subsidiary protection status (and even then, only with the same level and eligibility requirements as applied to nationals).
The Court noted that newly-arriving refugees may be in more precarious situations, and that restricting their benefits would not alleviate their hardship. Furthermore, it cast doubt on whether other benefits, like a housing accommodation, would actually offset the reduction in social assistance, as the government claimed.
The Court declared that Article 29 of Directive 2011/95 precluded domestic laws of EU member states restricting refugees with temporary residency to lower assistance than that of nationals or permanent resident refugees. It further ruled that refugees could seek corresponding enforcement of this EU law in national courts.
This decision runs contrary to a general push from the far right and conservative members of the Austrian coalition government to restrict the rights of refugees and migrants. Chancellor Sebastian Kurz, in office as of December 2017, campaigned on a pledge to restrict the social assistance benefits of refugees, and the government has promoted policies to do so. The Ayubi ruling protects the rights of temporary refugees to receive equal assistance and to use the national courts to exercise their rights. This may provide some legal teeth to counter conservative moves to restrict refugee rights in Austria and around the European Union.
More broadly, this case adds a dimension to a body of jurisprudence seeking to curb discrimination on the basis of migration status. It is worth recalling the UN Human Rights Committee’s 2018 decision in the Nell Toussaint case, finding that Canada violated the author’s rights to life and non-discrimination by denying her access to essential healthcare on account of her irregular migrancy status.
For their contributions, special thanks to ESCR-Net member: the Program on Human Rights and the Global Economy (PHRGE) at Northeastern University.