THIRD SECTION
DECISION
Applications nos. 71815/14 and 71827/14
Aghela DORANI against the Netherlands
and Lema KHAWATI against the Netherlands
The European Court of Human Rights (Third Section), sitting on 12 March 2019 as a Committee composed of:
Dmitry Dedov, President,
Alena Poláčková,
Georgios A. Serghides, judges,
and Fatoş Aracı, Deputy Section Registrar,
Having regard to the above applications lodged on 6 November 2014 and 6 November 2014 respectively,
Having deliberated, decides as follows:
THE FACTS
1. The applicants are naturalised Dutch nationals of Afghan origin. The applicant in the first case, Mrs Aghela Dorani, was born in 1964 and she is the mother of the applicant in the second case, Ms Lema Khawati who was born in 2005. The applicants are living in West Drayton (United Kingdom) and were represented before the Court by Mrs S. Çakıcı, a lawyer practising in Haarlem.
A. The circumstances of the case
2. The facts of the case, as submitted by the applicants, may be summarised as follows.
3. On an unspecified date, the first applicant and two of her children M. and S. (born in 1988 and 1991, respectively) fled from Afghanistan to the Netherlands where they applied for and, as from 27 February 1998, were granted asylum.
4. The first applicant’s husband D, who was detained in Afghanistan at the time of the first applicant’s flight, joined them in the Netherlands on an unspecified date and, on 22 October 2000, also applied for asylum.
5. On 22 October 2003 the Netherlands immigration authorities rejected D’s application for an asylum-based residence permit in application of Article 1F of the 1951 Geneva Convention Relating to the Status of Refugees. He unsuccessfully challenged this decision in administrative appeal proceedings in which the final ruling was given on 2 August 2007 by the Administrative Jurisdiction Division (Afdeling Bestuursrechtspraak) of the Council of State (Raad van State). His subsequent, fresh asylum application, in which he argued inter alia that his removal to Afghanistan would be contrary to Article 3 of the Convention, was also unsuccessful. The final decision on this second request was taken on 28 June 2010 by the Administrative Jurisdiction Division.
6. In the meantime, in January 2005 the second applicant had been born as the third child of the family. On an unspecified date, the first and second applicants as well as M. and S. were granted Dutch nationality.
7. On an unspecified date the first applicant applied for means-tested housing benefit (huurtoeslag) and a means-tested contribution towards the costs of (compulsory) health insurance (zorgtoeslag) for the fiscal year 2010.
8. On 20 February 2012, D left the family home for an unknown destination.
9. In two separate decisions of 30 June 2012 the first applicant was informed by the Tax Department that, as D was not lawfully residing in the Netherlands, she was not entitled to means-tested housing benefit and to a means-tested contribution towards the costs of (compulsory) health insurance from 1 January 2010 to 31 December 2010.
10. On 8 August 2012 the first applicant and D – also on behalf of the second applicant – filed an objection (bezwaar) against the decisions of 30 June 2012. These objections, including the arguments raised by the appellants under Articles 8 and 14 of the Convention, were rejected on 28 November 2012 by the competent Director of the Tax Department.
11. On 2 January 2013 the first applicant and D – also on behalf of the second applicant – filed an appeal with the Regional Court (rechtbank) of The Hague.
12. On 8 May 2013 the Director of the Tax Department informed the first applicant that – having noted the filed appeal– a further investigation had been carried out which had led to a revision of the decisions of 28 November 2012. The first applicant’s objection was accepted as being founded for the period between 1 January 2010 and 30 June 2010 and unfounded for the period between 1 July 2010 and 31 December 2010 as the applicant’s husband had been lawfully staying in the Netherlands until 28 June 2010. Consequently, the first applicant was entitled to means-tested housing benefit and a means-tested contribution towards the costs of health insurance from 1 January 2010 until 30 June 2010. The Director further indicated that the formal revised decisions would follow shortly.
13. On 14 May 2013 the applicants informed the Regional Court that the revised decisions on their objections did not give them cause to withdraw their appeals.
14. On 14 June 2013 the revised formal decisions of the Director of the Tax Department were sent to the first applicant.
15. In July 2013, the applicants and their daughter/sister S. moved from the Netherlands to the United Kingdom. On 24 July 2013 the applicants filed an objection with the Tax Department against the fresh decisions of 14 June 2013.
16. On 10 September 2013, following a hearing held on 17 May 2013, the single-judge chamber (enkelvoudige kamer) of the Regional Court of The Hague sitting in Haarlem declared inadmissible the appeals filed against the decisions of 28 November 2012 and rejected the appeals filed against the decisions of 8 May 2013. On 21 October 2013 the applicants filed a further appeal with the Administrative Jurisdiction Division (Afdeling Bestuursrechtspraak) of the Council of State (Raad van State).
17. On 3 January 2014 the Director of the Tax Department rejected the applicants’ objections of 24 July 2013. The applicants filed an appeal with the Regional Court of The Hague.
18. On 17 March 2014 the Regional Court informed the applicants that their appeals had been transmitted to the Administrative Jurisdiction Division given the pending proceedings on the applicants’ further appeals concerning the two benefits for 2010 at issue.
19. On 14 May 2014 the Administrative Jurisdiction Division rejected the applicants’ further appeal and confirmed the impugned judgement. In its relevant part, this ruling reads:
“5. [The first applicant] argues that the refusal to grant [the two means-tested benefits at issue] is contrary to the right to respect of her and her child’s family life as protected by Article 8 of the Convention, since due to this refusal she will fall below the minimal level of subsistence as considered acceptable in the Netherlands and that she - as claimed by her - is only entitled to benefits if she evicts her partner and the father of her children.
5.1. Article 8 of the Convention not only seeks to compel States to abstain from interfering but may also, under certain circumstances, entail positive obligations inherent in law that are necessary for an effective guarantee of the right to (respect for) family life. The European Court of Human Rights (hereafter: Court) has held several times that Article 8 of the Convention is also relevant in cases concerning the use of public funds. In this, it is of importance that in such a case the State enjoys an extra wide ‘margin of appreciation’ whilst in the determination of the protection that those concerned enjoy under the Convention, the Court attaches importance to whether or not the person concerned has a residence right.
More specifically, in its ruling of 3 May 2001 – Domenech Pardo v. Spain, no. 55996/00 – the Court considered that, although the Convention does not, as such, guarantee a right to benefits, it cannot be ruled out that, in certain circumstances, the refusal to grant a social benefit – in that case an orphan’s pension – may raise issues under Article 8 of the Convention, for instance when, as a result of that refusal, the normal development of the minor’s family life is rendered impossible.
5.2. With reference to the rulings of 26 February 2014 in case no. 201302678/1/A2 and of 12 March 2014 in case no. 201306127/1/A2 (), the Division considers that the provision of [the two means-tested benefits concerned] does not aim to guarantee a minimum level of subsistence. This means, in the Division’s opinion, that no positive obligation arises from Article 8 of the Convention to provide [the benefits concerned]. A positive obligation as considered here rests primarily with the administrative bodies charged with the implementation of facilities for aliens.
The above entails that the Division concludes that in respect of those with a partner who does not have a residence permit within the meaning of section 8 a. – e. and l. of the 2000 Aliens Act (Vreemdelingenwet 2000), like [the first applicant], it must be held that the provision of [the benefits at issue] does not concern implementing positive obligations guaranteed by Article 8 of the Convention. The Regional Court has correctly seen no reason in the argument of [the first applicant] for finding that the refusal of the Tax Department to provide [the benefits concerned] from October to December 2012 is contrary to Article 8 of the Convention.
5.3. The argument fails.
6. [The first applicant] argues that the Regional Court, in the framework of her reliance on Article 14 read together with Article 8 of the Convention (...) and by finding that the Tax Department has not unjustly taken the view that the circumstances invoked by her were not so special that in this concrete case, after balancing the interests concerned, these should lead to granting [the benefits concerned], has failed to recognize that in [the first applicant’s] case the aim of the linkage principle[1] cannot be realised. To this end, she argues that the risk of treatment prohibited in Article 3 of the Convention stands in the way of the return of [the applicants’ husband/father] to his country of origin. [The first applicant] submits that she cannot help that her partner – due to the application of Article 1F of the 1951 Geneva Convention Relating to the Status of Refugees – does not have a residence permit and cannot return to the country of origin, but that she is affected by this.
In addition the means-tested contribution towards the costs of health insurance is an individual special-purpose benefit (individuele doeluitkering) granted to her from which her partner does not benefit. The denial of benefits because of the immigration status of her partner is therefore unreasonable and for this reason section 9 § 2 of the General Act on Means-tested (Benefits) Regulations (Algemene Wet Inkomensafhankelijke Regelingen; “AWIR”) should not be applied.
She further argues that her minor daughter is growing up in poverty and is harmed in her development whereas under Article 27 of the 1989 Convention on the Rights of the Child (“the 1989 Convention”) she is entitled to an adequate standard of living and the State being obliged under Article 18 of the 1989 Convention to assist parents in their child-rearing tasks whereby under Article 3 of the 1989 Convention he interests of the child must be taken into account and put first.
6.1. In so far as [the first applicant] argues that the refusal [of the benefits at issue] is in violation of the prohibition of discrimination set out in Article 14 of the Convention taken together with the right to respect for family life embedded in Article 8 of the Convention, the Division considers, with reference to the ruling of the Division of 29 January 2014 in case no. 201302396/1/A2, as follows. It flows from the Court’s judgment of 22 March 2012 in the case of Konstantin Markin v. Russia, no. 30078/06, § 129 et seq. () that such an argument cannot only be considered if there is a violation of a positive obligation arising from Article 8 of the Convention, but that it is sufficient that the benefit requested falls within the ambit of Article 8 of the ECHR. That is the case here.
6.2. With reference to constant case-law (inter alia the rulings of the Division of 12 March 2014 in case no. 201306127/1/A2), it is considered that the application by the Tax Department of section 9 § 2 of the AWIR is based on the linkage principle. The legislator’s intention with this principle is, inter alia, to prevent that illegal aliens, by receiving benefits and allowances, are enabled to continue their unlawful residence or acquire a sham appearance of legality. In view of this aim, the linkage principle forms in itself a reasonable and objective justification for the difference made between, on the one hand, a Dutch national or an alien with a residence title in accordance with section 8 a. – e. and l. of the 2000 Aliens Act and, on the other, an alien like [D] who does not have such a residence permit, and it cannot be found that section 9 § 2 of the AWIR is in itself contrary to Article 14 read in conjunction with Article 8 of the Convention. ...
[The first appellant] invoked very special circumstances. As the Regional Court rightly considered, the circumstances invoked by her are not to be regarded as so special that, in this concrete case, the Tax Department should, after having balanced the interests concerned, have granted [the benefits at issue]. There is therefore no ground for the finding that the Tax Department should not have applied section 9 §§ 2 and 3 of the AWIR.
6.3. To the extent that [the first applicant] has invoked Articles 3, 18 and 27 of the 1989 Convention on the Rights of the Child, the following is considered.
6.4. As the Division has previously considered (ruling of 12 March 2014 in case no. 201305121/1/A2 (), Article 3 of the 1989 Convention has direct effect in so far as its purport is that in all measures concerning children the interests of the child concerned are to be taken into account. As regards the weight to be attributed to the child’s interest in a concrete case, Article 3 of the 1989 Convention, noting its wording, does not contain a standard which – without further elaboration in domestic rules and regulations – can be applied directly by the [domestic] judge. However, in this connection, the administrative judge is to assess whether the administrative body has sufficiently recognised and taken into account the interests of the child and thus has remained within the limits of the law in the exercise of its powers. This test is of a restrained nature.
There exists, noting the circumstances invoked by [the first applicant] in the objection proceedings, no ground for finding that the Tax Department has insufficiently taken into account the interests of the child of [the first applicant].
6.5. With reference to ruling of 5 February 2014 in case no. 201301840/1/A2, the Division considers that the decision of 8 May 2013 has not been taken with regard to the daughter of [the first applicant]. It concerns here a financial contribution from the State for the costs of health insurance and the rent of accommodation, to which a child itself cannot have a claim. The parent as the person compulsory insured and the tenant is the beneficiary. It is further considered that Articles 18 and 27 of the 1989 Convention do not contain standards that are suited for direct application by the [domestic] court, since for this they are not sufficiently concrete for this and thus require further elaboration in national rules and regulations.
6.6. The conclusion of the above is that the argument fails.”
No further appeal lay against this ruling.
B. Relevant domestic law and practice
20. An overview of the relevant domestic law and practice relating to admission proceedings and the concept of “lawful stay” is set out in the decision given by the Court in the case of Afif v. the Netherlands (no. 60915/09, §§ 26-32, 24 May 2011).
21. Article 93 of the Netherlands Constitution provides that the Convention forms part of domestic law. Pursuant to Article 94 of the Constitution, the provisions of the Convention take precedence over domestic statutory rules in case of conflict.
22. Means-tested housing benefit (huurtoeslag) is a form of tax credit intended to help persons/families with a modest income meet housing costs for rented accommodation. A means-tested contribution towards the costs of (compulsory) health insurance (zorgtoeslag), also taking the form of a tax credit, is intended to help persons/families with a modest income to meet costs for compulsory health insurance for adult persons with a modest income. Minor children are insured free of premium under their parents’ (compulsory) health insurance policy.
23. According to the provisions of the Benefit Entitlement (Residence Status) Act, in force as from 1 July 1998, and section 10 of the 2000 Aliens Act (Vreemdelingenwet 2000), the entitlement of aliens to any benefits in kind, facilities and social security benefits issued by decision of a public administrative authority is linked to the question whether they have legal residence in the Netherlands. This is referred to as the linkage principle (koppelingsbeginsel). An alien who does not have legal residence in the Netherlands is not entitled to any benefits granted by a decision of a public administrative authority. Derogation is possible if the benefits relate to education for minors, the provision of essential medical care (i.e. prevention of life-threatening situations or loss of essential functions), the prevention of situations that would jeopardise public health or pose a risk to third parties (for instance prevention of infectious diseases, or care related to pregnancy and childbirth), or the provision of legal assistance to the alien concerned. Its aim is, on the one hand, to discourage irregular residence and, on the other, to prevent irregular residents from benefitting from social security facilities allowing them to become rooted in Dutch society and thereby making it increasingly difficult to expel them.
24. Section 9 §§ 2 and 3 of the AWIR provides as follows:
“2. In case the partner of the person concerned is a foreigner who does not have legal residence within the meaning of section 8 of the 2000 Aliens Act, the person concerned is not entitled to benefits.
3. If, in a means-tested (benefits) regulation, it is stipulated that in addition to the financial capacity of the person concerned and his/her partner also the financial capacity of co-residents is of relevance for the assessment of an entitlement to or the level of benefits, the person concerned is not entitled to benefits in case a co-resident is an alien not having legal residence within the meaning of section 8 of the 2000 Aliens Act. If the co-resident is an unaccompanied minor alien within the meaning of section 1, part (e), of the Regulation on Provisions for Asylum-Seekers and Other Categories of Aliens (Regeling verstrekkingen asielzoekers en andere categorieën vreemdelingen), the first sentence shall not apply until the moment on which the right to reception facilities under this scheme ends.”
25. In a ruling given on 22 October 2014 (ECLI:NL:RVS:2014:3788) the Administrative Jurisdiction Division addressed the issue of proportionality in connection with the (non-)application of the linkage principle. It held as follows:
“4.1. ...Article 14 of the Convention and Article 1 § 1 of Protocol No. 12 to the Convention do not prohibit any difference in treatment of similar cases, but only treatment which must be regarded as an making an unjustified distinction. As is clear from the Court’s settled case-law, an unjustified distinction must be assumed if there is no reasonable and objective justification for the distinction made. This occurs if it does not pursue a legitimate aim or if there is not a reasonable relationship of proportionality between the means employed and the aim sought to be realised (see Konstantin Markin v. Russia [GC], no. 30078/06, § 125, ECHR 2012 (extracts) and Biao v. Denmark, no. 38590/10, § 92, 25 March 2014).
4.2. The linkage principle is set out in section 10 § 1 of the 2000 Aliens Act. This provision is intended to link the right to allowances, services and benefits (verstrekkingen, voorzieningen en uitkeringen) financed by collective funds to legal residence in the Netherlands (Parliamentary Documents, Lower House of Parliament (Kamerstukken II) 1994/95, 24 233, nr. 3, pp. 1-2). The premise that illegal aliens cannot claim entitlement to collective provisions is considered by the legislator as principle of the law relating to foreign nationals (Parliamentary Documents, Lower House of Parliament 1995/96, 24 233, No. 6, pp. 3-4). As is apparent from AWIR’s enactment (Parliamentary Documents, Lower House of Parliament 2004/05, 29 764, No. 3, p. 44), the legislator has not only considered the linkage principle applicable to the situation referred to in section 10 § 1 of the 2000 Aliens Act in which an alien applies for allowances, services and benefits, but in addition has also declared it applicable to the situations referred to in section 9 §§ 2 and 3 of the AWIR in which a Dutch national applies for benefits and he has a partner or co-resident who has no legal residence in the Netherlands within the meaning of section 8 of the 2000 Aliens Act.
The application of Article 9 §§ 2 and 3 of the AWIR, like in the present case, leads to a distinction between, on the one hand, a Dutch national who cohabits with a Dutch partner or a foreigner with legal residence under section 8 of the 2000 Aliens Act and, on the other, a Dutch national, like the [appellant], who cohabits with an alien who no longer has legal residence.
4.3. In the opinion of the Administrative Jurisdiction Division there exists, at least in principle, a reasonable and objective justification for making a distinction based on nationality and residence status as follows from both section 10 § 1 of the 2000 Aliens Act and section 9 §§ 2 and 3 of the AWIR. As can be derived from the constant case law of the Administrative Jurisdiction Division, this distinction pursues a legitimate aim, taking into account that its application intends to prevent that illegal aliens, by receiving allowances and facilities, are enabled to continue their unlawful residence, acquire a sham appearance of full legality or build up such a strong legal position – or the appearance thereof – that after the procedure he appears to be virtually irremovable. The provisions of section 9 §§ 2 and 3 of the AWIR are in line with this to the extent that these provisions in addition intend to prevent that the partner or co-resident who unlawfully resides in the Netherlands could also benefit from the benefits granted to the Dutch national (decisions of the Administrative Jurisdiction Division of 22 December 2010 in case no. 200909234/1/H2 and 29 January 2014 in case no. 201302396/1/A2).
4.4. Noting what the [appellant] has submitted, the Administrative Jurisdiction Division has to examine whether the means employed – termination of the benefits previously granted to the [appellant] – stands in reasonable proportion to the legitimate aim described above under 4.3. In so doing, the Division puts first that – as apparent from its founding history – the linkage principle originally solely intended to create a direct link between the legality of residence of aliens and entitlement to collective facilities of the Netherlands government. This principle has been extended to other situations in which a Dutch national or an alien with legal residence in the Netherlands and who on his/her own account would be entitled to such facilities are nevertheless denied such facilities on the sole ground that he/she cohabits with a partner or has a co-resident who has no legal residence. The withholding of such facilities, such as in the instant case the termination of means-tested housing benefit, means-tested child care benefit (kindgebonden budget) and means-tested contribution towards the costs of health insurance, to a Dutch national of an alien with legal residence in the Netherlands can in special circumstances in a concrete case be regarded as being in violation of the provisions aforementioned under 4.1, in which case the statutory provision concerned, given what is stipulated in Article 94 of the Constitution, should be set aside.
4.5. In the present case, the [appellant] has lost as from 1 October 2012 entitlement to housing benefit, child care benefit and contribution towards the costs of health insurance, to which he would have been entitled had he been considered as a single parent. The Administrative Jurisdiction Division derives from documents in the case-file that [the appellant’s partner] arrived in the Netherlands in the beginning of 2011 to study physiotherapy. For this purpose the Deputy Minister of Security and Justice granted her a temporary non-asylum based residence permit (verblijfsvergunning regulier voor bepaalde tijd), valid from 1 September 2011 to 1 September 2012. It has not been possible for [the partner] to continue these studies successfully because she has had to undergo a very intensive radiation treatment for thyroid cancer and had also fallen pregnant. During her pregnancy, these health problems aggravated so that, despite her efforts, she failed to pass the necessary exams for continuing her study and thus also to obtain an extension of the residence permit granted to her. This serious and worrying health situation has therefore been a decisive factor which resulted in [the partner] being unable to ensure the continuation of legal residency in the Netherlands.
The Administrative Jurisdiction Division further notes that, when the Tax Administration/Benefits (Belastingdienst/Toeslagen) ended the allowances at issue, the child of [the appellant] and [his partner] – which child has Dutch nationality – was two months old.
In view of the above-mentioned health situation of [the partner] and considering that a child is vulnerable at that age and, as regards primary care needs, is highly dependent on the parents, it could not in reason be expected from the [appellant] that he, in order to be able to claim as a single parent the allowances needed by him and and child, to ask his [partner] to leave the home. Indeed, it cannot be excluded that the [partner] should have taken the child for providing it with the necessary care, whereas it is plausible that she was not able to do so due to her health situation. In addition, in this the family life will be significantly disturbed whereby the interests of the very young Dutch child are being compromised which is not in accordance with the guarantees set out in Article 8 of the Convention and accepted by the Court (Domenech Pardo v Spain (dec.), no. 55996/00, 3 May 2001; and Jeunesse v. the Netherlands [GC], no. 12738/10, § 109, 3 October 2014 ).
4.6. The above-described set of facts and circumstances, in which much weight is attached to the health situation of the [partner], leads the Administrative Jurisdiction Division to the conclusion that in this specific case there are such special circumstance that the Tax Administration/Benefits in terminating the benefits at issue has deployed a disproportionate means in order to achieve the objective mentioned above under 4.3. This finding is not altered by the fact that the [partner] – as apparent from the letter of the Tax Administration/Benefits of 22 October 2013 in the case-file – had lawful residence again as from 15 July and 5 August 2013 and that as from 1 August 2013 the [appellant] is entitled again to the benefits [at issue]. Indeed this does not alter that the [appellant] has not received any benefits over a considerable period – eleven months – of time. Application of section 9 §§ 1 and 2 of the AWIR is therefore incompatible with the prohibition of discrimination laid down in ...Article 14 read in conjunction with Article 8 of the ECHR and Article 1 § 1 of Protocol 12 to the Convention. In view of the provisions of Article 94 of the Constitution, the Tax Administration/Benefits should have refrained from applying section 9 §§ 2 and 3 of the AWIR.
The argument succeeds.”
26. General welfare benefits for a single person under the Work and Social Assistance Act (Wet Werk en Bijstand) amount to 70% of the net statutory minimum wage in the Netherlands. Means-tested benefits, which may be granted in addition to general welfare benefits and only upon a request to be made each fiscal year anew, are intended to alleviate costs of renting accommodation, health care insurance and/or child care for families/persons with a modest income. Unlike general welfare benefits, means-tested benefits are not intended to secure a minimum level of subsistence (bestaansminimum).
COMPLAINTS
27. The applicants complained that the refusal to grant the first applicant the two means-tested benefits at issue violated their rights under Article 8 of the Convention as well as Article 14 of the Convention taken together with Article 8.
THE LAW
A. Joinder of the applications
28. Given their common factual and legal background, the Court decides that the two applications should be joined pursuant to Rule 42 § 1 of the Rules of Court.
B. Alleged violation of Article 8 of the Convention
29. The applicants complained that the refusal to grant the first applicant means-tested housing benefit and a means-tested contribution towards the costs of (compulsory) health insurance was contrary to their right to respect for their private and family life under Article 8 of the Convention in that this entails that they have to choose between an existence below the minimum level of subsistence and family life with D. In so far as relevant, Article 8 reads as follows:
“1. Everyone has the right to respect for his private and family life, his home ....
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 well-being 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.”
30. The Court would emphasise at the outset that neither Article 8 nor any other provision of the Convention guarantees, as such, a right to social security benefits or any social benefit of a particular amount, and does not confer on an individual a right to enjoy any given standard of living (see Di Trizio v. Switzerland, no. 7186/09, § 59, 2 February 2016; and Jeunesse v. the Netherlands [GC], no. 12738/10, § 131, 3 October 2014).
31. It is true that the Court has previously held that, by granting benefits to large families, States are able to “demonstrate their respect for family life” within the meaning of Article 8 of the Convention and that such benefits therefore come within the ambit of Article 8 (see Dhahbi v. Italy, no. 17120/09, § 41 with further references, 8 April 2014).
32. However, the decisions challenged by the applicants were solely taken on the basis of a statutory scheme set up for the purpose of ensuring proper enforcement of immigration controls. The decisions at issue did not, itself, determine D’s right to reside in the Netherlands. Section 9 §§ 2 and 3 of the AWIR seeks to encourage irregular aliens to leave the Netherlands and to prevent irregular aliens, like D at the material time, from benefitting indirectly from State-sponsored schemes for lawful residents with a modest income. However, the decisions complained of were not, as such, aimed at ending the applicants’ cohabitation with D.
33. Accordingly, the Court finds that, in the circumstances of the present case and in contrast with the decisions taken in respect of D’s application for a Netherlands residence permit, the refusal of the means-tested benefits at issue cannot, as such, be regarded as an interference with the applicants’ rights under Article 8 § 1 of the Convention.
34. It follows that this part of the application is manifestly ill‑founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
C. Alleged violation of Article 14 taken together with Article 8 of the Convention
35. The applicants further complained under Article 14 taken together with Article 8 that the refusal to grant the first applicant the means-tested benefits at issue is based on a discriminatory difference in treatment between aliens holding a residence permit and aliens who do not.
Article 14 of the Convention provides:
“The enjoyment of the rights and freedoms set forth in [the] 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.”
36. The Court has established in its case-law that in order for an issue to arise under Article 14 there must be a difference in the treatment of persons in relevantly similar situations. Such a difference in treatment is discriminatory if it has no objective and reasonable justification – in other words, if it does not pursue a legitimate aim or if there is not a reasonable relationship of proportionality between the means employed and the aim sought to be realised. The Contracting State enjoys a margin of appreciation in assessing whether and to what extent differences in otherwise similar situations justify a different treatment (see, for instance, Thor v. Austria (dec.), no. 67656/12, § 38 with further references, 19 September 2017).
37. The scope of the margin of appreciation will vary according to the circumstances and, where it concerns economic or social policy choices, the margin of appreciation generally allowed to States under the Convention is a wide one (see, Andrejeva v. Latvia [GC], no. 55707/00, § 83 with further references, ECHR 2009).
38. The Court notes that the Administrative Jurisdiction Division of the Council of State examined the applicants’ complaint under Article 14 taken together with Article 8 that – in view of the applicants’ circumstances – the refusal to grant the means-tested benefits at issue was disproportionate. The Division considered at the outset that the linkage principle forms in itself a reasonable and objective justification for distinguishing between, on the one hand, a person staying lawfully in the Netherlands and, on the other, an irregular alien (see under no. 6.2. of the Division’s decision of 14 May 2014, quoted at paragraph 19 above). The Division accepted that in very special circumstances including the interests of minor children, it could be contrary to Article 14 taken together with Article 8 to deprive a lawfully resident adult of means-tested benefits on account of an unlawfully resident cohabiting spouse. It was thus accepting that there must be a “reasonable relationship of proportionality” between the means employed and the aim sought to be realised and that in all measures concerning children the interests of the children are to be taken into account (see under nos. 6.2. – 6.6. of the Division’s decision of 14 May 2014, quoted at paragraph 19 above; see also under the statement of law under nos. 4.1. and 4.4. – 4.6. in the later decision of 22 October 2014, quoted at paragraph 25 above). However, agreeing with the Regional Court, the Division found that there were no exceptional circumstances in the applicants’ case, warranting a finding that the application of the main rule (loss of entitlement of the means-tested benefits at issue) would be disproportionate or that the interests of the second applicant (the minor child) had been insufficiently taken into account, which would render the decision to deny the first applicant the means-tested benefits contrary to Article 14 (see under nos. 6.2. – 6.6. of the decision of 14 May 2014, quoted at paragraph 19 above). The Court sees no reason to substitute its own assessment for that of the domestic courts.
39. It follows that this complaint is also manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
For these reasons, the Court, unanimously,
Decides to join the applications;
Declares the applications inadmissible.
Done in English and notified in writing on 4 April 2019.
Fatoş AracıDmitry Dedov
Deputy RegistrarPresident
[1]. See § 23 below.
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