The European Court of Justice recently held that European Union (EU) law does not preclude Germany from imposing geographic restrictions on residence permits for certain non-EU migrants receiving public benefits, provided that those migrants are less integrated into society than other migrants. See European Court of Justice (Grand Chamber), Kreis Warendorf v. Alo and Osso v. Region Hannover, Cases C-443/14 and C-444/14, Request for Preliminary Ruling, Judgment of 1 March 2016, para. 64. The Bundesverwaltungsgericht, German Federal Administrative Court, stayed the domestic proceedings to first refer three questions to the Court of Justice before ruling on a case involving two Syrian nationals living in Germany and receiving public benefits who objected to residential conditions that were imposed on them, requiring them to live in specific areas of Germany. Id. at paras. 14-21. The German Federal Office for Migration and Refugees had denied both of them asylum but granted them subsidiary protection status and provisional leave to remain in the country. Id.
The Court of Justice held that on one of the grounds, the restriction of freedom of movement for the purpose of integration, the German law was not precluded by EU law. If the domestic court found that beneficiaries of subsidiary protection have greater difficulties relating to integration than other third country nationals legally residing in Germany, the Court of Justice held, restrictions on the movement of beneficiaries of subsidiary protection for the objective of integration is not precluded by EU law. Id. at paras. 14, 56, 64. The ruling has the potential to impact the right to free movement for refugees and foreign nationals receiving subsidiary protection in Germany and throughout the EU; German officials have reportedly taken the ruling as an opening to expanding restrictions on third party nationals, even recognized refugees, who are unemployed. [Europe Online Magazine]
Germany’s and EU’s Legal Framework
The provision at issue in this case, in the Act on the Residence, Economic Activity, and Integration of Foreigners in the Federal Territory Residence Act (the AufenthG), allows for geographical restrictions on visa and residence permits granted to certain foreign nationals receiving public benefits in Germany. The geographic restriction is intended to advance two objectives: the even distribution of the fiscal burden that comes with providing social assistance, and better access to integration services, which in turn aims to ease social tension. See Kreis Warendorf v. Alo and Osso v. Region Hannover, Judgment of 1 March 2016, para. 12. The geographical restrictions apply only to foreign nationals who were granted a residence permit on humanitarian or political grounds or other grounds found in international law, such as beneficiaries of subsidiary protection and refugees. Id. at para. 13.
In December 2011, shortly after the Syrian refugee crisis began, the Council of the European Union adopted Directive 2011/95 with the intent to create subsidiary forms of protection to complement the 1951 Convention Relating to the Status of Refugees (Refugee Convention) and to establish a unified approach to asylum within EU Member States. See Council Directive 2011/95, arts. 1-3, 2011 O.J. (L 337) 9 (EU). Thus, the EU recognizes subsidiary protection status, a new category of protected individuals who do not meet the legal requirements of refugee status but are nonetheless entitled to protection. Id. at art. 2(f), (g).
Court of Justice’s Analysis
The German Federal Administrative Court requested preliminary rulings from the Court of Justice on three questions regarding the legislations’ compatibility with EU law: whether the geographic restriction on residence constitutes a violation of the right to freedom of movement under EU law when the individual can otherwise move freely within the territory; whether the residence restriction is compatible where its objective is to distribute the financial burden of providing social assistance within the territory of the State; and whether the residence restriction is compatible where its objective is based on integration concerns, including alleviating social tension in certain regions and facilitating access to integration services. Kreis Warendorf v. Alo and Osso v. Region Hannover, Judgment of 1 March 2016, para. 21.
Freedom of Movement
The German referring court requested clarification on whether a residence restriction violates the guarantee of freedom of movement under Article 33 of Directive 2011/95 if the foreign national still has the ability to move freely within the State. Id. at para. 21. The Court found that the text of the Directive was insufficient to determine whether “freedom of movement” requires the ability to choose place of residence and further commented that the term is not used uniformly in EU law. Id. at paras. 24 and 25.
The Court found that the Refugee Convention’s definition of freedom of movement should be applied because the Directive generally requires equal treatment for refugees and beneficiaries of subsidiary protection and specifically states that beneficiaries of subsidiary protection should have the same freedom of movement as other legally residing third party nationals. Id. at paras. 28-34. The Refugee Convention includes the right to choose location of residence as part of the right to freedom of movement. Id. at para. 35. The Court of Justice, therefore, held that beneficiaries of subsidiary protection must be allowed to choose their places of residence, subject only to regulations applicable to all foreign nationals in similar circumstances. Id. at paras. 35-37.
The Court held that the equitable distribution of the fiscal burden associated with providing public benefits is not a sufficient reason for placing restrictions on place of residence for beneficiaries of subsidiary status if the same restrictions are not placed on other migrants or nationals receiving those benefits. Id. at para. 56. Article 29 of the Directive states that public assistance for beneficiaries of subsidiary protection must be granted in accord with the standards applied to nationals. Id. at para. 48. In Germany, there is no residence restriction for nationals to obtain social assistance, while beneficiaries of subsidiary status must meet the residence restrictions in order to receive public benefits. Id. at para. 53. Because the German law treats these migrants differently from German nationals, the Court held that restricting migrants’ ability to choose their place of residence is not compatible with EU law and could not be justified by an interest in equitably distributing the costs of public benefits. Id. at para. 56.
The Court of Justice found that EU law does not necessarily prevent Germany from restricting the place of residence of third-country nationals with subsidiary status who are receiving certain public benefits, for the purpose of facilitating integration, if those migrants are not similarly integrated into society as compared to other third-country nationals lawfully in the country. Id. at para. 64. The Court first found that the requirement to provide beneficiaries of subsidiary status with the same protection as German nationals, pursuant to Article 29 of Directive 2011/95, does not apply where Germany is concerned about facilitating integration because German nationals and beneficiaries of subsidiary status are not in comparable situations. Id. at para. 59. Finding that Article 33 does still apply, the Court held that EU Member States must not restrict beneficiaries of subsidiary protection’s freedom of movement under more restrictive conditions than those imposed on other similarly situated foreign nationals. Id. at para. 61.
The Court, though, left it for the referring domestic court to determine whether other third-country nationals were, in fact, in a comparable situation relative to the objective of promoting integration. Id. at para. 62. If the domestic court finds that beneficiaries of subsidiary protection face greater difficulties in integrating than other categories of migrants, then applying a residence restriction on beneficiaries of subsidiary status alone may be compatible with the EU Directive. Id. at para. 63. Hence, the Court of Justice did not decide that the measures were inherently acceptable but did conclude that the geographic residence restrictions are not precluded by EU law in such circumstances. Id. at para. 64. German courts have not yet made a ruling on the question, referred to it by the CJEU, of whether beneficiaries of subsidiary protection face greater difficulty in integration than other third country nationals. [European Online Magazine]
The Court of Justice is one court within the larger Court of Justice of the European Union (CJEU), the judicial branch of the European Union. The CJEU interprets EU law to ensure that it is applied consistently in all EU Member States and resolves legal disputes between national government and EU institutions. It is divided into three bodies which are each tasked with certain categories of rulings. The General Court rules on cases brought by individuals and companies that allege an EU legal action is impermissible under EU treaties. The Civil Service Tribunal addresses disputes between the EU and its staff. The Court of Justice responds to request for preliminary rulings from national courts. National courts use this function to resolve doubt about how to interpret an EU law and to determine compatibility of national law with EU law, as was done in this case. See European Union, Court of Justice of the European Union: The EU Institutions Explained.