VfGH 07.03.2018, G 136/2017 ua

Name of the court ¹ (English name in brackets if the court's language is not English):

Verfassungsgerichtshof (Austrian Constitutional Court)

Date of the decision:

07 / 03 / 2018

Case number:²

G136/2017-19

Parties to the case: Request by the Administrative Court of Lower Austria to assess whether a certain provision in the Welfare Act of Lower Austria was in line with the Austrian constitution

Decision available on the internet?  Yes   

If yes, please provide the link:

https://www.vfgh.gv.at/downloads/VfGH_G_136-2017_ua_Entscheidung_Mindestsicherung_NOe.pdf

Language(s) in which the decision is written: German

Official court translation available in any other languages?   No

(If so, which):

Countr(y)(ies) of origin of the applicant(s): /   

Country of asylum (or for cases with statelessness aspects, country of habitual residence) of the applicant(s): Austria

Any third country of relevance to the case:³  No

Is the country of asylum or habitual residence party to:

The 1951 Convention relating to the Status of Refugees                                             

 Yes

Relevant articles of the Convention on which the decision is based:

Art 23

(Only for cases with statelessness aspects) The 1954 Convention relating to the Status of Stateless Persons                                 

Relevant articles of the Convention on which the decision is based:

(Only for cases with statelessness aspects)

The 1961 Convention on the Reduction of Statelessness                                        

Relevant articles of the Convention on which the decision is based:

(For AU member states): The 1969 OAU Convention governing the specific aspects of refugee problems in Africa                      

Yes

No                                                                                                              

Relevant articles of the Convention on which the decision is based:

For EU member states: please indicate which EU instruments are referred to in the decision

Qualification Directive

Relevant articles of the EU instruments referred to in the decision:

Art 29

Topics / Key terms:

Social Rights of Refugees

Key facts (max. 200 words)

The Administrative Court of Lower Austria requested the Austrian Constitutional Court to assess whether inter alia Art. 11a of the Welfare Act of Lower Austria was in line with the Austrian constitution. This article foresees that persons who have not legally resided in Austria for a total of five out of the past six years are only entitled to receive a reduced amount of benefits (32% less than persons who fulfill this criterion). As this provision indirectly discriminates against persons with non-Austrian nationality, the Administrative Court of Lower Austria suggested that it violates inter alia Art 14 ECHR in conjunction with Art. 1. Of the Additional Protocol No 1 to the ECHR (n.b. that the ECHR is part of the Austrian constitution).

Key considerations of the court 

The Court's decision:

The Constitutional Court ruled the provision in the Social Welfare Act of Lower Austria which stipulates that persons who had not been legally residing in Austria for a total of 5 out of the past 6 years will only receive a reduced amount of benefits as in violaion of the Austrian constitution.

The Court's legal assessment:

The Court first reiterates its position that excluding beneficiaries of subsidiary protection from the Social Welfare Act of Lower Austria and thus referring them to the basic care system for asylum-seekers is unproblematic, as this group is only granted a temporary residence permit and the respective discrimination is hence justifiable.

With regards to this provision that concerns persons who have not legally resided in Austria for a total of five out of the past six years, the court argues that there is no factual basis for a differentiation on the basis of the length of previous legal residency in the country, dismissing the argumentation of the government of Lower Austria that people who have not resided in Austria need a stronger incentive to participate in the labour market.

Furthermore, quoting the ECtHR cases Bah, Appl. 56.328/07, para 45; 6.11.2012 and Hode und Abdi, Appl. 22.341/09, para 47, the Court states that refugees cannot return to their home countries because they face persecution and that the provision fails to differentiate between refugees and persons who can return to their home countries at any time. The court also mentions that Austria is a signatory state to the 1951 Convention and that Art. 23 clearly states that refugees are to be treated as nationals with regards to social welfare and mentions the respective provision in the EU Qualification Directive (Article 29).

The Court hence orders the government of Lower Austria to amend its Social Welfare Act accordingly.

Disclaimer: This is an unofficial translation, prepared by UNHCR. UNHCR shall not be held responsible or liable for any misuse of the unofficial translation. Users are advised to consult the original language version or obtain an official translation when formally referencing the case or quoting from it in a language other than the original.