EHRM, 12-03-2019, nr. 34299/14

[The applicant and her husband] argue that the Regional Court has failed to discern that, by setting the …. [entitlement to] means-tested child care benefit at nihil and reject their application for means-tested housing benefit and means-tested contribution towards the costs of health insurance for 2012, the Tax Department has acted in violation of Article 8 § 1 also read in conjunction with Article 14 of the Convention … In that framework they argue that [the applicant] should evict [A], her partner and father of her children, in order to revive her entitlement to the benefits, which is in breach of the right to family and private life. According to [the applicant and her husband], the application in this case of the linkage principle1. serves no legitimate aim. The aim of that principle, namely to induce [A] to leave the Netherlands, cannot be achieved as [A] will risk in Afghanistan to be subjected to treatment in violation of Article 3, which means that the Netherlands cannot remove him. The application of the linkage principle is further disproportionate because, according to [the applicant and her husband], it infringes on the rights of the children.

It is established that there is family life within the meaning of Article 8 of the Convention between [the applicant], [A] and their children. It can be assumed that a departure of [A] would be disruptive for the family of which he forms a part.

The application of section 9 § 2 of the General Act on Means-tested (Benefits) Regulations (Algemene Wet Inkomensafhankelijke Regelingen; ‘AWIR’) is based on the linkage principle. To this end, the Administrative Jurisdiction Division refers to the rulings of 22 December 2010 in case no. 200909234/1/H2 and 13 February 2013 in case no. 201202839/1/A2 (www.raadvanstate.nl). As is apparent from the history of the enactment of the Benefit Entitlement (Residence Status) Act (Koppelingswet) (Parliamentary Documents, Lower House of Parliament (Kamerstukken II) 1994/95, 24 233, nr. 3, pp. 1–2), the linkage principle laid down in this Act seeks to link the right to allowances, services and benefits (verstrekkingen, voorzieningen en uitkeringen) financed by public funds to legal residence in the Netherlands. The aim of the linkage principle is 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 addition the linkage principle aims at preventing that the alien who is taking proceedings for obtaining a residence permit gradually appears to be able to build up such a strong legal position — or the appearance thereof — that by the time the procedure has ended he appears to be virtually irremovable.

With reference to the above-cited ruling of 22 December 2010, it is being considered that — in view of the goal pursued by the linkage principle — the principle in itself forms 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 (Vreemdelingenwet 2000) and, on the other, an alien like [A] who does not have such a residence permit.

As already previously held by the Administrative Jurisdiction Division in, inter alia, the above cited rulings of 22 December 2010 and 13 February 2013, statutory provisions are not applied when such application is incompatible with treaty provisions that are binding on all persons and with decisions of international organisations. The denial of [the means-tested benefits at issue] may under very exceptional circumstances in a concrete case be regarded as contrary to the principle of non-discrimination under Article 14 in conjunction with the right to respect for family and private life laid down in Article 8, in which case the statutory provision concerned should not be applied. Noting the significant impact the denial of [the three benefits at issue] can have, the Tax Department must assess autonomously a reasoned claim of very exceptional circumstances.

The Administrative Jurisdiction Division agrees with the Regional Court that the Tax Department has correctly adopted the view that the refusal to grant [the benefits concerned] is not contrary to Article 8, read together with Article 14 of the Convention … The circumstances relied upon by the applicant and [A] are not to be regarded as very exceptional in the above-mentioned sense. The argument that the children must live in poverty because their father is residing in the Netherlands cannot lead to another finding, already because these [benefits] are not intended to ensure a minimum level of subsistence. The circumstances relied upon do not, therefore, warrant the disapplication of section 9§ 2 of the AWIR.

The argument fails.’

…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).

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.

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).

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 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.

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 www.echr.coe.int).

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.’