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Right holders Archives: Migrants

Judgement of the Federal Constitutional Court, 1 BvL 10/10

On 03/09/2014 in

Year: 2012 (Date of Decision: 18 July, 2012)

Forum, Country: Constitutional Court; Germany

Standards, Rights: Core content; Human dignity; Welfare State; Right to an adequate standard of living; Right to social security; Migrants

Summary Background: The issue at stake was whether the amount of cash benefits for asylum seekers was compatible with the fundamental right to a minimum level of existence as emerging from the right to human dignity (article 1.1 of the Basic Law) read in conjunction with the principle of a social welfare State (article 20.1 of the Basic Law).

Holding: The Court held that the provisions governing the cash benefits in question violate the fundamental right to the guarantee of a dignified minimum existence protected under the German Basic Law [paras. 1 and C.I.1]. This right is universal and applies to both nationals and foreign citizens [para. C.I.1.a]. It includes “…both humans’ physical existence, that is food, clothing, household items, housing, heating, hygiene and health, and guarantees the possibility to maintain interpersonal relationships and a minimal degree of participation in social, cultural and political life, since a human as a person necessarily exists in social context.” [para. C.I.1.b]. The benefits in question were just not enough to live a dignified standard of life.

The Court found that the benefits had not been altered since 1993, despite significant price increases in Germany and stated that adequate benefits have to be established in the particular context of circumstances in Germany. The Basic Law does not allow that needs for a dignified life be calculated at a lower level by referring to the existence levels in the country of origin or in other countries [para. C.I.1.d].

The Court was clear that political considerations must not undermine the principle of existenzminimum, stating that “Migration-policy considerations of keeping benefits paid to asylum seekers and refugees low to avoid incentives for migration…may generally not justify any reduction of benefits below the physical and socio-cultural existential minimum existence… Human dignity…may not be modified in light of migration-policy considerations” [para. C.II.2.c]. Further, the Constitution did not allow for differentiation among recipients of basic social benefits in accordance to their residence status; the legislature must always be guided by the concrete needs to secure a person’s existence [para. C.I.1.dd].

In addition the Court indicated that it was not clear that a realistic, needs-oriented calculation had been made in determining the amount of benefits. The decision mandates that it must be possible to calculate the amounts in a transparent manner that responds to actual and current needs [para. C.I.1.f].

In conclusion, the Court ordered the legislature to immediately enact new provisions in relation to cash benefits for asylum seekers that would secure them a dignified minimum existence. As an interim measure, the Court also put into place a transitional arrangement for the payment of increased cash benefits [paras. D.1 and 2].

Additional Comments: The decision also refers to the margin of appreciation principle in holding that the State enjoys such a margin in determining the form in which the benefits are given (in cash, kind or services) and the amount of the benefits to secure a minimum existence [para. C.I.1.d].

Link to Full Case: https://www.bundesverfassungsgericht.de/en/decisions/ls20120718_1bvl001010en.html

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Kong Yunming v. Director of Social Welfare, FACV No. 2

On 17/12/2013 in

Year: 2013 (Date of Decision: 17 December, 2013)

Forum, Country: Court of Final Appeal; Hong Kong

Standards, Rights: Proportionality; Non-discrimination and equal protection of the law; Right to social security; Migrants

Summary Background: This judicial review of the complainant’s rejected social security application assessed the constitutionality of the seven-year residence requirement for social security. The complainant moved to Hong Kong to live with her husband, but she became homeless because her husband passed away a day after her arrival and his residence was repossessed. The complainant applied for social security four months after arriving in Hong Kong. The complainant would have qualified for social security but for the new seven-year residence requirement.

Holding: Ribeiro J; Tang PJ, Lord Phillips NPJ & Ma CJ concurring: The Court held that policies formulated to uphold the right to social welfare in article

Hong Kong residents shall have the right to social welfare in accordance with law. The welfare benefits and retirement security of the labour force shall be protected by law.
of the Basic Law must be read together with “economic conditions and social needs”, as per article
On the basis of the previous social welfare system, the Government of the Hong Kong Special Administrative Region shall, on its own, formulate policies on the development and improvement of this system in the light of the economic conditions and social needs.
[paras. 17 and 18].

Article 145 does not preclude reducing welfare entitlements if that maintains the sustainability of the welfare system [para. 37]. Although the Court did not recognize the right to social welfare as a fundamental right, it held that that population growth, an ageing population and rising social security expenditure were not rational justifications for the seven-year requirement, as there were other means of addressing those problems [paras. 66, 75, 96].

The Court indicated that deterring immigration, immigrants’ ability to rely on charities were not arguments for the reasonable proportionality of the seven-year requirement [sections L.1 and L.2]. The Court ruled that the Director’s discretion in and guidelines for waiving the seven-year requirement presented immigrants with “a very high threshold” [section L.3, para. 136].

Bokhary NPJ stated that the seven-year requirement violated the principle of equality before the law under article 25 of the Basic Law and article 22 of the Hong Kong Bill of Rights, the latter of which is taken from article 26 of the ICCPR. Bokhary NPJ also held that article 145 of the Basic Law implies that social security policies should be formulated progressively rather than retrogressively. Bokhary NPJ also cited Basic Law provisions that constitutionally guarantee articles 2 and 9 of the ICESCR, as well as CESCR’s concluding observations in 2005 on Hong Kong.

The Court unanimously declared the Director’s seven-year residence requirement to be unconstitutional, restoring the previous one-year requirement [para. 144].

Additional Comments: What distinguished Bokhary NPJ’s separate concurring judgement was his account for international human rights law as well as his emphasis on constitutional guarantees for all Hong Kong residents, including non-permanent ones like the complainant.

Link to Full Case: http://legalref.judiciary.gov.hk/lrs/common/ju/ju_frame.jsp?DIS=90670

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Reyes Aguilera, Daniela v. Argentina

On 05/02/2013 in

Year: 2013 (Date of Decision: 5 February, 2013)

Forum, Country: Supreme Court; Argentina

Standards, Rights: Reasonableness; Proportionality; Nondiscrimination and equal protection of the law; Right to health; Right to social security; Right to an adequate standard of living; Children; Persons with Disabilities; Migrants

Summary Background:

The petitioners in the case asked for a court order compelling the Comisión Nacional de Pensiones Asistenciales (national agency in charge of welfare pensions) to grant a disability pension to Daniela Reyes Aguilera, a 12-year-old Bolivian girl with a severely disabling condition. On the basis of national constitutional law and international human rights law, the petition challenged a discriminatory regulation requiring immigrants to prove 20 years of residence in Argentina to become eligible for a disability pension.

Holding: The Court decided the case in favour of the petitioners and declared that Daniela was entitled to obtain benefits.

The Court affirmed that there is a cognizable human right to social security. The eligibility requirement of 20 years residency for immigrants to receive disability pension was found to be unconstitutional as it was not justified [pp. 8, 27, 34 and 41], was unreasonable (“irrazonable”) [p. 39] and was a disproportionate limitation to the right to social security. The decision also cited other grounds for unconstitutionality of the rule including breach of the right to non-discrimination on the basis of national origin [p. 2 and p. 36], as well as violation of the rights to life [pp. 15], equality before the law [p. 5, 19] and right to health and social security [p. 7].

Additional Comments: The strict scrutiny test was applied. It is also important to note that since the judgement applied only to the case brought before the Court, Daniela did receive a disability award as per the Court’s decision but the residency requirement rule for immigrants was not altered.

Link to Full Case: http://www.cels.org.ar/common/documentos/reyes_aguilera.pdf, summary in English at http://www.escr-net.org/docs/i/1091579

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A v. Municipality of Egedal and Ministry of Labour

On 15/02/2012 in

Year: 2012 (Date of Decision: 15 February, 2012)

Forum, Country: Supreme Court; Denmark

Standards, Rights: Core content; Non-discrimination and equal protection of the law; Margin of discretion; Right to an adequate standard of living; Right to social security; Migrants

Summary Background: After having been granted refugee status in 2003, the applicant received ‘Start Help’ benefits (reduced unemployment benefits) until 2007, instead of regular unemployment benefits, which could only be granted to persons who had spent at least seven years in Denmark.

He claimed that this violates article 75.2 of the Constitution, which obliges the State to help those who cannot support themselves. Moreover, he alleged a violation of article

articleThe enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.
ECHR (prohibition of discrimination) in conjunction with article
1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic wellbeing of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.
(right to respect for private and family life) and article
Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law. The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.
Protocol 1 ECHR (protection of property) because the requirement of having spent at least seven years in Denmark affects relatively more foreigners than Danish nationals and therefore constituted an indirect discrimination.

Holding: The Supreme Court found that article 75.2 of the Constitution entails an obligation for the State to ensure a minimum level of existence for persons covered by it. However, the court found that the size of the ‘Start Help’ and other benefits that the applicant received were sufficient to satisfy this provision. With regard to the ECHR, the Court noted that it leaves the States wide discretion to determine matters of social and economic policy. Therefore, the Court held that ‘Start Help’ did not constitute indirect discrimination in contravention to article 14 ECHR in conjunction with article 1 Protocol 1 ECHR.

Additional Comments: ‘Start Help’ was abolished in December 2011 and the regular unemployment benefits may now be obtained even if the person in question has not resided in Denmark for a specified period of time.

Link to Full Case: http://www.codices.coe.int/NXT/gateway.dll/CODICES/precis/eng/eur/den/den-2012-3-001

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Dorothy Ann Finch and others v. Commonwealth Health Insurance Connector Authority, Case No. SJC-11025 (MA S. Jud. Ct., Jan. 5, 2012)

On 06/01/2012 in

Year: 2012 (Date of Decision: 6 January 2012)

Forum, Country: Supreme Court; United States of America

Standards, Rights: Non-discrimination and equal protection of the law; Right to health; Right to social security; Migrants

Summary Background: This case involves a legislative decision of the State of Massachusetts that denied State subsidies (provided under the Commonwealth Care Health Insurance Program) to lawful non-citizen immigrants living in the United States for less than five years. Plaintiffs sought a declaration from the Court that this exclusion from the program was unconstitutional.

Holding: The Massachusetts Supreme Judicial Court, applying strict scrutiny, decided that excluding the said category of lawful, non-citizen immigrants from the aforementioned health insurance program was in violation of the equal protection clause of the Massachusetts Constitution. It was held that the exclusively fiscal concerns, which had motivated the exclusion could never constitute a compelling government interest in a strict scrutiny review [pp. 237-242]. Further, the Court found that the State had made no attempt to meet the rigorous procedural requirements designed to ensure that the legislation was narrowly tailored to further a compelling interest [pp. 242-249]. “Narrow tailoring requires ‘serious, good faith consideration’ of ‘workable’ nondiscriminatory alternatives that will achieve the Legislature’s goals.” Those requirements were not met in this case [p. 242].

In its conclusion the Court states “[m]inorities rely on the independence of the courts to secure their constitutional rights against incursions of the majority….If the plaintiffs’ right to equal protection of the laws has been violated…then it is our duty to say so” [p. 249].

Additional Comments: Since the case was determined on State constitutional grounds, there could be no further appeal to the U.S. Supreme Court, so this judgement stands as the final judgement on this aspect of the case.

Link to Full Case: http://masscases.com/cases/sjc/461/461mass232.html

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Control of constitutionality – interlocutory action (Giudizio di legittimità costituzionale in via incidentale)

On 12/12/2011 in

Year: 2011 (Date of Decision: 12 December, 2011)

Forum, Country: Constitutional Court; Italy

Standards, Rights: Non-discrimination and equal protection of the law; Right to health; Right to education; Right to social security; Children; Persons with disabilities; Migrants

Summary Background: Juveniles of non-European Union origin with disabilities and without a long-term resident permit, which can be acquired only after five years of permanent residency, and their families were excluded from the benefits of financial assistance (indennità di frequenza). The allowance aims at helping disabled juveniles and their families who face economic difficulties in covering the medical needs, as well as other special needs they may have, in the area of education and vocational training to promote their integration in society. The Genoa Court of Appeal referred the case to the Constitutional Court for the review of the constitutionality of this discrimination in the assignment of this social benefit (article 80.19 of Law no. 388 of 23 December 2000).

Holding: Pursuant to article 117.1 of the Constitution, which requires legislation to comply with international obligations, the Constitutional Court considered that the exclusion from the assistance scheme of non EU disabled juveniles and their families to be in breach of the right to non-discrimination as guaranteed under article 14 of the ECHR and of article 3 of the Constitution providing for equality of treatment [Considerato in diritto, para. 5]. The Court also found violations of article 32 of the Constitution, protecting the right to health; article 34, protecting the right to education; and article 38, protecting the right to social assistance [Considerato in diritto, para. 1].

Additional Comments: The Court makes an implicit distinction between documented and undocumented migrants. This decision is thus limited to the discrimination between citizens and documented migrants based on the long-term nature of the permit. The Court alludes to the possibility of a different outcome in respect of undocumented migrants, considering the existing ECtHR jurisprudence.

Link to Full Case: http://www.cortecostituzionale.it/actionSchedaPronuncia.do?anno=2011&numero=329

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