Thursday, April 26, 2012

Case Study: Third Country Nationals who are Long-Term Residents in a EU Member State have the Equal Right to Social Assistance as EU Citizens

It was recently decided by the Court of Justice of the EU in the case of Servet Kamberaj v Servet Kamberaj v Istituto per l’Edilizia Sociale della Provincia autonoma di Bolzano (IPES), Giunta della Provincia autonoma di Bolzano, Provincia Autonoma di Bolzano that EU member state’s are prohibited from implementing legislation which treats third-country nationals who are long-term residents different from EU citizens in relation to the allocation of funds for housing benefit.

The facts of the case are as follows. Mr Kamberaj is an Albanian national who has resided in Italy since 1994. He received housing benefit in Italy from 1998 to 2008 as a holder of a residence permit. This housing benefit was administered by firstly being allocated to EU citizens and then secondly awarded to third country nationals who have lawfully resided in the state for at least five years and worked there for at least three years. However, in 2009 a different method was put in place to allocate funds. The Social Housing Institute of Bolzano then rejected Mr Kameraj’s application under this new method on the grounds that the benefit intended for third country nationals had been exhausted.

Mr Kameraj’s brought a case on the grounds that this refusal amounted to discrimination contrary to Directive 2003/109/EC in relation to third country nationals who are long-term residents. The question of whether this method of allocating housing benefits was discriminatory was then referred to the Court of Justice of the EU.

The court was of the view that this method of allocation would disadvantage third country nationals in being allocated a smaller budget even though they have the same economic needs as those of an EU citizen. The court considered the scope of the directive in relation to social security, assistance and protection. The court found that these aspects of the law fell within the scope of member states to determine and they are permitted to limit the application of equal treatment in respect of social assistance to core benefits. Core benefits must be provided equally to those resident in the state including third country nationals who are long-term residents. The directive does not contain an exhaustive list of core benefits. Therefore housing benefit falls within this list as it relates to the basic need of the individual to accommodation and equal treatment must be applied here.

The right of third country nationals to equal treatment is a general rule and any derogation must be interpreted strictly. The scope of the term core benefits must be interpreted to take into account the objective of the directive to ensure the integration of third country nationals. The Charter of Fundamental Rights must also be considered to determine the scope of core benefit. The Charter recognises such a right to housing assistance to ensure a decent existence for those who lack sufficient resources.

In light of the considerations outlined, the court concluded that EU law precludes a national or regional law which provides for different treatment for third country nationals and nationals of the member state in which they reside, in so far as the housing benefit falls within one of the three fields covered by the principle of equal treatment provided under the directive concerning third-country nationals who are long-term residents and constitutes a core benefit within the meaning of that directive, which are matters for the national court to determine.      

Brophy Solicitors


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