THIRD SECTION
DECISION
Application no. 37115/11
Emabet YESHTLA
against the Netherlands
The European Court of Human Rights (Third Section), sitting on 15 January 2019 as a Chamber composed of:
Vincent A. De Gaetano, President,
Branko Lubarda,
Helen Keller,
Pere Pastor Vilanova,
Alena Poláčková,
Georgios A. Serghides,
María Elósegui, judges,
and Stephen Phillips, Section Registrar,
Having regard to the above application lodged on 17 June 2011,
Having regard to the factual information submitted by the respondent Government and the submissions in reply filed by the applicant,
Having deliberated, decides as follows:
THE FACTS
1. The applicant, Ms Emabet Yeshtla, is a naturalised Dutch national of Ethiopian origin, who was born in Ethiopia in 1968 and lives in Beverwijk. She was represented before the Court by Mr W. Fischer, a lawyer practising in Haarlem.
2. The Netherlands Government (“the Government”) were initially represented by their Deputy Agent, Ms L. Egmond, and subsequently by their Agent, Ms B. Koopman, both of the Ministry of Foreign Affairs.
A. The circumstances of the case
3. The facts of the case, as submitted by the parties, may be summarised as follows.
4. In 1986, after becoming pregnant, the applicant was evicted by her parents from the family home in Ethiopia. On 22 October 1986, her son Y was born in Ethiopia. In 1996, leaving Y in the care of his foster father, she fled Ethiopia and, on an unspecified date and for reasons undisclosed, was eventually granted an asylum-based residence permit in the Netherlands. On an unspecified date in 2001 she was granted Dutch nationality.
5. On 6 April 2002, after having been abandoned by his foster father who had left Ethiopia for Eritrea, Y managed to reach the Netherlands where on 12 April 2002 he applied for asylum. In September 2002, he was reunited with the applicant who, on 8 October 2002, was entrusted with Y’s care by the “Nidos” foundation (juvenile protection agency for unaccompanied minor asylum-seekers). A subsequent DNA test confirmed that the applicant was indeed Y’s mother.
6. On 18 April 2003 the Minister for Immigration and Integration (Minister voor Vreemdelingenzaken en Integratie) rejected Y’s asylum application. The Minister did not find it established that Y had attracted the negative attention of the Ethiopian authorities or had a well-founded fear of persecution within the meaning of the 1951 Geneva Convention relating to the Status of Refugees. The Minister further held that the special policy for unaccompanied minor asylum-seekers did not apply as Y was staying with the applicant. Y unsuccessfully appealed this decision in administrative proceedings in which the final decision was given on 9 February 2004.
7. On 18 July 2003, at the applicant’s request, the Utrecht Regional Court (rechtbank) discharged Nidos from its guardianship (voogdij) of Y and entrusted it to the applicant. On 22 October 2003 Y was registered at the applicant’s address in the Beverwijk municipal personal records database (gemeentelijke basisadministratie persoonsgegevens).
8. On 9 July 2004 Y applied for a residence permit for family reunification with a parent (gezinshereniging met ouder) in the Netherlands. This application was rejected on 20 October 2004. This decision became final when no objection (bezwaar) had been filed within the statutory defined four weeks’ time-limit.
9. On 17 November 2006 the Central Agency for the Reception of Asylum-Seekers (Centraal Orgaan Opvang Asielzoekers) informed Y that, as the time-limit for his voluntary departure (vertrektermijn) had expired, he was eligible for forced removal and his entitlement to reception facilities for asylum-seekers had ended de jure. Accordingly, his entitlement to these facilities would end as from 14 December 2006.
10. On 13 April 2007 Y filed an application with the Ethiopian mission in Brussels to be provided with Ethiopian travel documents. On 30 April 2007 this mission informed Y that, as he had not produced any evidence confirming his Ethiopian nationality, they could not provide him with an Ethiopian passport or laissez-passer.
11. On 22 October 2007 Y filed a fresh application for a residence permit for family reunification with a parent in the Netherlands. This application was rejected on 8 November 2007 by the Deputy Minister of Justice (Staatssecretaris van Justitie). On 22 November 2007 Y. filed an objection against this decision with the Deputy Minister.
12. On 19 February 2009 – after having been informed on 16 February 2009 by the Netherlands immigration authorities that he qualified for a residence permit for migrants who, through no fault of their own, cannot leave the Netherlands (buitenschuldvergunning) – Y withdrew his objection (see paragraph 11 above). On 17 March 2009 he applied for the so-called “no fault” residence permit and, on 10 April 2009, he was granted such a permit with an initial validity from 17 March 2009 to 17 March 2010.
13. On 26 September 2005 the applicant – in receipt of general welfare benefits under the Work and Social Assistance Act (Wet Werk en Bijstand) for a single person as well as means-tested housing benefit (huurtoeslag; hereinafter “housing benefit”) – had already applied for housing benefit for 2006, estimating her annual 2006 income for assessment purposes (toetsingsinkomen) at 13,419 euros (EUR) and that of Y at nil. This application was apparently accepted, as was a subsequent application for 2007.
14. On 14 July 2007 the applicant was informed by the Tax Department that she had in fact unduly received housing benefit for 2006 and 2007 because Y did not hold a valid residence permit. Accordingly, the housing benefit was stopped as from 1 January 2006 and the applicant was to repay the amounts unduly received. The applicant filed an objection with the Tax Department (Belastingdienst Toeslagen), arguing that her son Y was staying in the Netherlands lawfully and that he was caring for her. Explaining that her income consisted of welfare benefits for a single person, she further asked permission to reimburse the EUR 1,562 claimed in instalments if that claim were maintained.
15. On 26 June 2009, after revision of an earlier decision, the Tax Department informed the applicant that – according to information obtained from the immigration authorities – Y had not been residing lawfully in the Netherlands in 2006 and 2007, apart from a brief period from 22 October to 2 November 2007. The applicant was further informed that, pursuant to section 9 § 3 of the General Act on Means-tested (Benefits) Regulations (Algemene Wet Inkomensafhankelijke Regelingen; “AWIR”), there was no entitlement to housing benefit in case of a co-resident (medebewoner) – like Y in 2006 and 2007 as indicated by the applicant – who was not lawfully staying in the Netherlands. Accordingly, and apart from the period between 22 October and 2 November 2007 when Y’s stay in the Netherlands had been lawful pending a decision on his fresh application for a residence permit, the applicant had unjustly received housing benefit and should repay the amounts unduly received.
16. The applicant’s appeal against the Tax Department’s decision was rejected on 16 October 2009 by the single-judge Chamber (enkelvoudige kamer) of the Haarlem Regional Court. It noted that it was not in dispute that Y was a co-resident within the meaning of section 2 § 1(e) of the AWIR. In so far as the applicant argued that the refusal to grant her housing benefit was in breach of Article 8 of the Convention, the Regional Court held that this refusal did not, as such, entail an interference with the applicant’s rights under Article 8 and that it had not appeared that by the discontinuation of the housing benefit she had become unable to continue her family life. Moreover, even assuming there had been an interference with the applicant’s rights under Article 8 § 1, this was justified under the terms of the second paragraph of this provision. It also rejected the applicant’s arguments based on Article 14 of the Convention in conjunction with Article 1 of Protocol No. 1, Article 26 of the International Covenant on Civil and Political Rights, Article 13 of the European Social Charter and Article 11 of the International Covenant on Economic, Social and Cultural Rights.
17. On 28 November 2009 the applicant filed a further appeal with the Administrative Jurisdiction Division (Afdeling Bestuursrechtspraak) of the Council of State (Raad van State), submitting, inter alia, that her welfare benefits amounted to EUR 820 per month of which she spent EUR 730 on recurrent fixed expenses.
18. On 22 December 2010 the Administrative Jurisdiction Division accepted the applicant’s further appeal, quashed the impugned judgment of 16 October 2009, quashed the decision of 26 June 2009, ordered that the legal effects of the latter decision were to remain intact and made a cost order against the fiscal service. It considered:
“2.4 Yeshtla argues that the Regional Court has unjustly taken the linkage principle[1] into account in its considerations and disregarded that, in her situation, the linkage principle was no sufficient justification for the making of a distinction between a tenant with a co-resident with or without a valid residence permit. In this context she submits that it is she and not her son who is affected by the termination of housing benefit and that it cannot be expected of her that she evict her son from her home. On this point she refers in particular to Article 8 [of the Convention] also read in conjunction with Article 14 of the Convention. .... She further argues that the termination of the housing benefit ... and the recovery of housing benefit already paid can lead to interference with the right to respect for family and private life included in Article 8 of the Convention.
2.4.1. The Regional Court has correctly included the linkage principle in its considerations as this principle forms the basis for the fiscal authorities’ application of section 9 § 3 of the AWIR. It appears from the drafting history of the Benefit Entitlement (Residence Status) Act (Koppelingswet) that the linkage principle laid down in this Act seeks to link entitlement to [social security] benefits ... paid out of public funds to lawful stay in the Netherlands. The aim of the linkage principle is to prevent enabling irregular aliens from continuing their irregular stay or acquiring a semblance of complete legality through receipt of social security benefits. It further appears from the drafting history of the amendment to the Housing Benefit Act (Huursubsidiewet) that the purpose has always been to exclude from housing benefit households with co-residents who are staying in the Netherlands unlawfully. The linkage principle has been further developed in section 9 § 3 of the AWIR in which it is stipulated that the residence status of the co-resident is decisive for entitlement to housing benefit. As rightly considered by the Regional Court, the purpose of the provision cited is that the co-resident who is residing in the Netherlands without a residence permit should not (in)directly benefit from the allowance granted to Yeshtla. As the son was a co-resident of Yeshtla and, at the material time, was not residing in the Netherlands lawfully, Yeshtla was not entitled – in 2006 and 2007 with exception of the month November 2007 – to housing benefit. In view of the clear wording of section 9 § 3 of the AWIR, the purpose of the linkage principle elaborated therein and the aforementioned drafting history of the Benefit Entitlement (Residence Status) Act and the Housing Benefit Act, this is not altered by the fact that the applicant is a Dutch national.
2.4.2. Having regard to the above considerations, the linkage principle as such first and foremost constitutes a reasonable and objective justification for distinguishing between a tenant with a co-resident who has or who does not have a valid residence permit. It is further paramount that the termination, revision and recovery of housing benefit does not, as such, entail that by definition Yeshtla can no longer cohabit with her son.
In accordance with Article 94 of the Constitution (Grondwet), statutory provisions are nevertheless not applicable if such application is in conflict with a provision of treaties or of resolutions by international institutions that are binding on all persons. In a concrete case, the termination, revision and recovery of already paid housing benefit of a parent further to the cohabitation with an adult child may in very exceptional circumstances be regarded as being in breach of the prohibition of discrimination of Article 14 in conjunction with the right to respect for family and private life laid down in Article 8, in which event the statutory provision concerned should not be applied. The fiscal service was therefore wrong to take the position that, in such a case, it would neither be competent nor obliged to disapply section 9 § 3 of the AWIR.
In her objection Yeshtla argued, inter alia, that she is seriously ill – she is HIV-infected – and that her son cares for her. Yeshtla further submitted that she has no one else in the Netherlands and depends on her son. In addition, her son obtained a residence permit on 16 February 2009 because, through no fault of his own, he cannot leave the Netherlands, also in view of the letter of the Ethiopian Embassy of 30 April 2007 that his Ethiopian nationality has not been demonstrated and that he is thus not eligible for travel documents. Given these circumstances, the fiscal service ought – prior to deciding on Yeshtla’s objection – to have examined whether these circumstances were so exceptional that they, in this concrete case and after having balanced the interests of those concerned, should lead to the disapplication of section 9 § 3. The fiscal service has not done so.
2.4.3. Having regard to the above, the decision ... of 26 June 2009 has been prepared with insufficient care and lacks adequate reasoning, thus the fiscal service has acted in violation of sections 3:2 and 7:12 § 1 of the General Administrative Law Act (Algemene Wet Bestuursrecht; “AWB”). This has not been recognised by the Regional Court.
2.5. The appeal is well-founded. The impugned ruling must be quashed. Doing what the Regional Court should have done, the Administrative Jurisdiction Division will declare the appeal against the decision of ... 26 June 2009 well-founded. This decision qualifies for annulment in that it violates sections 3:2 and 7:12 § 1 of the AWB.
2.6. The Administrative Jurisdiction Division, however, sees reason – in application of section 8:72 of the AWB – to leave intact the legal consequences of the decision of 26 June 2009. To that end, it is considered that the circumstances presented by Yeshtla cannot be regarded as so exceptional that they warrant the disapplication of section 9 § 3 of the AWIR. In this context it is of relevance that in the further appeal proceedings Yeshtla was requested to elaborate on her alleged dependency on her son in the light of her medical situation. The fact that, according to the general practitioner’s statement submitted by her, the presence of the son is desirable for social medical reasons, and that Yeshtla explained that she depends on her son for many everyday affairs as well as for hospital visits, is insufficient to find that very exceptional circumstances, within the meaning as set out above, pertain, as it cannot be deduced therefrom that the alleged dependence is of such a nature that the son can only provide the alleged care by cohabiting with his mother. ...”
No further appeal lay against this ruling.
B. Relevant domestic law and practice
19. 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).
20. 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.
21. Means-tested housing benefit (huurtoeslag) is a form of tax credit intended to help meet housing costs for rented accommodation for persons/families with a modest income. It is paid by the Tax Department.
22. According to the provisions of the Benefit Entitlement (Residence Status) Act, in force as from 1 July 1998, and section 10 of the Aliens Act 2000 (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 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.
23. 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 Article 8 of the Aliens Act 2000, 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 Aliens Act 2000. 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.”
24. 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 Aliens Act 2000. 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 Aliens Act 2000 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 Aliens Act 2000.
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 Article 8 of the Aliens Act 2000 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 Aliens Act 2000 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 illegal aliens, by receiving benefits and allowances, from being 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 and means-tested contribution towards the costs of health insurance, to a Dutch national or 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, should 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.”
25. 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 housing benefit, which may be granted in addition to general welfare benefits and only upon request which is to be made each fiscal year anew, is intended to alleviate costs of renting accommodation for families/persons with a modest income. Unlike general welfare benefits, housing benefit is not intended to secure a minimum level of subsistence (bestaansminimum).
26. On the basis of the Court’s case-law under Article 8 in respect of young adults and their parents (inter alia, Bousarra v. France, no. 25672/07, 23 September 2010; Osman v. Denmark, no. 38058/09, 14 June 2011; and A.A. v. the United Kingdom, no. 8000/08, 20 September 2011), an amendment (WBV 2016/11) of the Aliens Act 2000 Implementation Guidelines (Vreemdelingencirculaire 2000) entered into force on 8 September 2016, according to which the existence of family life within the meaning of Article 8 is generally accepted – without requiring the existence of further elements of dependency involving more than the normal emotional ties – for young adults between 18 and 25 years old and their parents where the former have always formed and continue to form a part of their parents’ core family unit (gezin).
COMPLAINTS
27. The applicant complained that the termination of her means-tested housing benefit violated her rights under Article 8 of the Convention as well as Article 14 of the Convention taken together with Article 8.
THE LAW
28. The applicant complained that the termination of her means-tested housing benefit violated her right to respect for her private and family life under Article 8 of the Convention in that it simply could not be expected of a mother to make a choice between, on the one hand, expelling a son from her home and, on the other, losing entitlement to housing benefit entailing serious financial difficulties.
29. 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 notes that Y had already come of age when the applicant applied for housing benefit for 2006 and reiterates the Court’s well-established case-law in immigration cases that relationships between adult relatives do not fall within the protective scope of Article 8 unless “additional factors of dependence, other than normal emotional ties, are shown to exist” (see, for instance, Z. and T. v. the United Kingdom (dec.), no. 27034/05, ECHR 2006-III; Konstatinov v. the Netherlands, no. 16351/03, § 52, 26 April 2007; Emonet and Others v. Switzerland, no. 39051/03, § 35, ECHR 2007 XIV; Senchishak v. Finland, no. 5049/12, § 55, 18 November 2014; Sapondzhyan v. Russia (dec.), no. 32986/08, 21 March 2017 and E.P. v. the Netherlands and A.R. v. the Netherlands (dec.), nos. 43538/11 and 63104/11, § 89, 11 July 2017).
31. However, it has also accepted in a number of cases concerning single young adults who were still living with their parents that their relationship with their parents and other close family members constituted “family life” (see Bouchelkia v. France, 29 January 1997, § 41, Reports 1997‑I; Ezzouhdi v. France, no. 47160/99, § 26, 13 February 2001; Osman v. Denmark, no. 38058/09, § 55, 14 June 2011; and A.A. v. the United Kingdom, no. 8000/08, §§ 46-49, 20 September 2011).
32. The Court notes that Y was still a minor when he arrived in the Netherlands where he was reunited with the applicant with whom he has cohabited since. There is further no indication in the case-file that at the material time Y had founded a family of his own. In these circumstances the Court finds that their relationship at the material time constituted family life within the meaning of Article 8 of the Convention.
33. However, as the case concerns the withdrawal of means-tested housing benefit granted to the applicant, the Court would also emphasise 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).
34. The decision challenged by the applicant was solely taken on the basis of a statutory scheme set up for the purpose of ensuring proper enforcement of immigration controls. The decision at issue did not, itself, determine Y’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 Y at the material time, from benefitting indirectly from State-sponsored schemes for lawful residents with a modest income. However, the decision complained of was not, as such, aimed at ending the applicant’s cohabitation with Y nor did it have such an effect in that there is no indication that Y actually moved out of the applicant’s home because she risked losing her entitlement to housing benefit on account of his presence. Furthermore, the applicant’s general welfare benefits were not affected by the fact that she was cohabiting with her adult son.
35. Accordingly, the Court finds that, in the circumstances of the present case and in contrast with the decisions taken on Y’s requests for a residence permit, the withdrawal of the applicant’s means-tested housing benefit cannot, as such, be regarded as an interference with the applicant’s rights under Article 8 § 1 of the Convention.
36. It follows from the above 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.
37. The applicant further complained under Article 14 taken together with Article 8 that the termination of her means-tested housing benefit was 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.”
38. 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).
39. 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).
40. The Administrative Jurisdiction Division of the Council of State examined the applicant’s complaint that it was contrary to Article 14 taken together with Article 8 to distinguish, as regards eligibility for means-tested housing benefit, between on the one hand a lawfully resident tenant who shared a household with a co-resident who had a residence permit and, on the other hand, a lawfully resident tenant who shared a household with a co-resident who had no residence permit (like the applicant and her son). It considered that there was a reasonable and objective justification for this difference in treatment, namely the principle that entitlement to certain state-funded social benefits was limited to persons lawfully staying in the Netherlands. A co-resident without a residence permit should not be able to benefit indirectly from housing benefit (see under nos. 2.4.1. and 2.4.2 of the Division’s decision of 22 December 2010, quoted at paragraph 18 above). The Division accepted that in exceptional circumstances it could be contrary to Article 14 taken together with Article 8 to deprive a lawfully resident tenant of housing benefit in respect of an unlawfully resident adult child. The Division was thus accepting that there must be a “reasonable relationship of proportionality” between the means employed and the aim sought to be realised (see also the statement of law under no. 4.1 in the later decision of 22 October 2014, quoted at paragraph 24 above). It found that the Regional Court, in the impugned judgment, had failed to examine the applicant’s arguments on this proportionality point. On the basis of this failure, it quashed the impugned judgment and, instead of remitting it to the Regional Court, decided the point itself. It found that there were no exceptional circumstances in the applicant’s case, warranting a finding that the application of the main rule (loss of entitlement of housing benefits) would be disproportionate and thus in breach of Article 14 (see under nos. 2.5 and 2.6 of the decision of 22 December 2010, quoted at paragraph 18 above). The Court sees no reason to substitute its own assessment for that of the domestic courts.
41. 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,
Declares the remainder of the application inadmissible.
Done in English and notified in writing on 7 February 2019.
Stephen PhillipsVincent A. De Gaetano
RegistrarPresident
[1]. See paragraph 22 below.
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