Refugees with Temporary Residency Must Be Treated the Same as Citizens for the Purpose of Social Benefits, EU Court of Justice Rules

Ahmad Shah Ayubi v. Bezirkshauptmannschaft Linz-Land

A 2015 reform of Austrian state assistance legislation mandated that refugees with temporary residency be treated the same as people with “subsidiary protection status” (third-country nationals who require protection from serious harm but do not qualify for refugee status). Both groups only qualified to receive a basic allowance and a temporary supplement. Such assistance was lower than the “needs-based minimum income protection” provided to refugees with permanent residency and other permanent residents (e.g. citizens).

The Court noted the United Nations (UN) Convention on the Status of Refugees principle that refugees and nationals should be treated equally with regard to public assistance. It took this into account when interpreting Article 29 of EU law Directive 2011/95, which requires member states who grant a person protection such as refugee status to also grant them social assistance on par with citizens. 

The Court noted that newly-arriving refugees may be in more precarious situations, and that restricting their benefits would not alleviate their hardship. 

This decision runs contrary to a general push from the far right and conservative members of the Austrian coalition government to restrict the rights of refugees and migrants. 

The Ayubi ruling protects the rights of temporary refugees to receive equal assistance and to use the national courts to exercise their rights. This may provide some legal teeth to counter conservative moves to restrict refugee rights in Austria and around the European Union.

More broadly, this case adds a dimension to a body of jurisprudence seeking to curb discrimination on the basis of migration status. It is worth recalling the UN Human Rights Committee’s 2018 decision in the Nell Toussaint case, finding that Canada violated the author’s rights to life and non-discrimination by denying her access to essential healthcare on account of her irregular migrancy status.

For their contributions, special thanks to ESCR-Net member: the Program on Human Rights and the Global Economy (PHRGE) at Northeastern University.

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