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Social Advantages of EU Memebership

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Introduction

The following working paper presents the Social assistance and social advantages in the European Union and third country nationals (with special attention for Turkish persons). It has been organized in seven main chapters which are summarized briefly in the following paragraphs.

In order to have a view of what makes the legal basis for TCN’s rights in European Union, this paper tries to describe the most important International and European legal instruments. These instruments set minimum standards relating to the protection of migrants, their families and refugees as well as for international co-operation on migration. International law protect migrant according to fundamental principles like; equality of treatment between regular migrant workers and nationals in the realm of employment and occupation; universal human rights apply to all human beings, including all migrants, regardless of status.

International instruments provide normative standards for all national legislation and policy on migration. The main international human rights Conventions and Covenants apply to all human beings, including migrants and refugees. The Council of Europe’s migration instruments cover general human rights and more specific agreements relating to migrants and migrant workers.

The Community has power to enter into agreements with third countries which agreements may either be limited to matters within the exclusive competence of the Community or cover a wider mix of issues including areas of shared competence between the Member States and the Community[3]. Agreement with third countries in this working paper are mentioned not because they provide direct social rights (referring to the Turkey agreement) to TCN’s but because the European Court of Justice often make reference to them conferring direct effect[4] for the equal treatment of TCN’s.

Under the EU law, where a right deriving from an agreement is found to be directly enforceable by the ECJ (direct effect), it is part of the acquis communautaire and must be applied by the Community's national courts. The jurisprudence of the ECJ clarify the treatment of third country nationals having an advantageous legal status close to nationals of Members States.

Moreover, it has been tried to provide a general view of social advantages for TCN’s in European Union. It is well known that social advantages and social rights for TCN’s depend mainly on their legal status. Different categories of TCN’s are treated differently in respect of social rights within the Union. Irregular immigrants and persons illegally residing in a country are mentioned in this paper but are not treated deeply considering that they have very restricted rights in respect of social rights. Regular immigrants have a more favorable situation and enjoy rights and obligations comparable to those of citizens of the European Union. A description of different directives and regulations has been made in order to explain what social rights and advantages have the category of third country nationals within the European Union. Reference to the definition of social advantages according to ECJ case laws has been made.

In the following chapter, Social assistance in the European Union, it has been tried to explain several definitions that exist for social assistance, Social Regimes and Social Protection Delivery Systems, the role of social assistance, its personal scope, level and duration of social assistance benefits and conditioning of social assistance.

The general situation of social assistance is further analyzed in four European countries; Germany, Austria, France and Belgium. European Union Countries provide social assistance for persons in need in different ways. They are guided almost from the same principles but apply different provisions and eligibility criteria because access to social assistance is governed according to national rules. This section aims to present an analysis of how social assistance systems are administered in Germany, Austria, France and Belgium, their legal and administrative structures and rules of eligibility, relative rules which determine the benefits etc.

In general, immigrants with permanent residence status have access to social security benefits on the same basis as nationals in all Member States. There are greater differences in regulations relating to social assistance, where the great majority of the States provide access to long-resident third-country nationals on the same basis as for nationals. Regulations and practices regarding the provisions available for asylum seekers also differ. Contribution-based benefits are generally accessible on the same basis as they are for nationals. However, there are often limitations linked to minimum contributions or waiting periods. Conditions of access to social assistance can have an important impact on the social inclusion of immigrants. Considering the above, in the chapter 6 of this working paper “Social assistance for third country nationals in four European union countries”, it has been tried to provide a view of how TCN’s are treated in Germany, Austria, France and Belgium as regarded to social assistance.

The selection of these countries has been made according to the differences they have in providing social assistance to third country nationals. France and Germany have more liberal social assistance system concerning third country nationals than Belgium and Austria. In the first two countries social assistance is provided for all persons without any condition relating to period of residence in the national territory, meanwhile in Belgium and Austria residence condition is mandatory for being eligible to social assistance. 

In the last chapter of this paper has been described different social rights, which are found in different directives and regulations for Turkish persons in European Union. Even though, it is obvious that the arrangements for Turkish migrants under the association instruments provide less legal protection compared nationals of Member States, they have a more favorable social situation than other third country nationals.

The methodology used is that of qualitative content analyses of International and European primary and secondary legal instruments as well as a description of the situation of social assistance in four European Union Countries.

1. Legal Instruments For Social Security of TCN In European Union

International and European legal instruments set minimum standards relating to the protection of migrants, their families and refugees as well as for international co-operation on migration. Although States have their sovereign rights over migration policies in their countries, international law protect migrant according to fundamental principles like; equality of treatment between regular migrant workers and nationals in the realm of employment and occupation; universal human rights apply to all human beings, including all migrants, regardless of status.

International Legal Instruments 

International instruments provide normative standards for all national legislation and policy on migration. The main international human rights Conventions and Covenants apply to all human beings, including migrants and refugees. Nonetheless, specific sets of instruments have been elaborated to address the particular situations of, respectively, refugees and asylum seekers, migrant workers, and trafficking and smuggling of human beings. Certain aspects of other international treaties also apply to migration, notably International Labor Standards, international consular law and certain international trade agreements.

International Human Rights Conventions provide a broad and ample normative framework for the protection of migrants. The Universal Declaration of Human Rights of 1948 laid out a comprehensive set of universal human rights principles. It is not legally binding, but it has provided the foundation for the recognition of social secu­rity rights in treaties subsequently adopted. Art. 22 of The Universal Declaration of Human Rights guarantee the right to social security. Art. 25 of The Universal Declaration of Human Rights recognizes the right of everyone to security in the event of unemployment, sickness, disability, widowhood, old age and other lack of livelihood in circumstances beyond his or her control[5].

Specific conventions subsequently explicitly extended the application of universal rights to victims of racial discrimination, women, children, and migrants: Convention for the Elimination of Racism and Racial Discrimination (CERD), Convention Against Torture (CAT), Convention for the Elimination of Discrimination Against Women (CEDAW), the Convention on the Rights of the Child (CRC), and the Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families(CMR)[6].These instruments have been characterized as fundamental human rights instruments that define basic, universal human rights and ensure their explicit extension to vulnerable groups world-wide[7].

The Convention on the Status of Refugees 1951 provides essential standards regarding recognition, protection of and assistance to refugees and asylum seekers. The Convention defines who is a refugee, sets out rights of individuals granted asylum, delineates the responsibility of States to non-refoulement and provides other provisions such as regarding refugee travel documents.

ILO Convention No. 102 on Social Security (Minimum Standards) recognizes the following nine spe­cific branches of social security: medical care, sickness benefits, unemployment benefits, old­age benefits, unemployment injury benefits, family benefits, maternity benefits, invalidity benefits and survivors’ benefits[8]. Minimum re­quirements are stipulated as to the coverage of the population, the content and level of benefits, the protection of the rights of con­tributors and beneficiaries and matters of administration.

Other relevant Conventions of ILO are: Maternity Protection Conven­tion (Revised), 1952 (No. 103); Equality of Treatment Social Se­curity) Convention, 1962 (No. 118) (concerning equality of treatment of nationals and non-na­tionals); Maintenance of Social Secu­rity Rights Convention, 1982 (No. 157). International Labor Standards to policy and practice regarding employment dimensions of migration have repeatedly underscored the applicability to all migrant workers of International Labor Standards covering conditions at work, occupational safety and health, maximum hours of work, minimum remuneration, non-discrimination, freedom of association, collective bargaining, and maternity leave, among others.

European Legal Instruments

The Council of Europe’s migration instruments cover general human rights and more specific agreements relating to migrants and migrant workers.

The European Convention on the Protection of Human Rights and Fundamental Freedoms (ECHR)[9] applies clearly to everyone within the jurisdiction of a state party, which means that all migrants in Council of Europe member states are covered by its provisions irrespective of their country of origin[10]. The importance of this Convention is because, unlike other Council of Europe instruments, its personal scope is not limited to nationals of other states parties. The ECHR primarily safeguards civil and political rights and that the legal status of migrant workers. This convention is strongly connected to the protection of their economic and social rights but its role in this field is limited. Nevertheless, the discriminatory application of economic and social rights in respect of migrants may well lead to a violation of the ECHR. While there are no specific provisions on migrant workers in the ECHR, migrants have obtained remedies from the European Court of Human Rights under its case law in protection of their right to respect for family life and the non-discrimination principle (Arts. 8 and 14 respectively)[11].

The European Social Charter (1961) and its Additional Protocol (1988), as well as the Revised European Social Charter (Council of Europe, 1996) which entered into force in July 1999[12], in contrast to the ECHR, has a limited personal scope because it only applies to foreigners who are nationals of other contracting parties. The Charter is the only treaty which guarantees the right to social and medical assistance. The dichotomy between social security and social assistance is highly controversial, it appears in the Charter, which approaches the two areas in two separate Articles (Article 12 and Article 13) carrying different undertakings. Article 12(4), is concerned with ensuring equal treatment between the nationals of contracting parties in respect of social security rights by the conclusion of bilateral or multilateral agreements (or by other means) and Article 13(4), is concerned with the treatment of foreigners lawfully within the territory of contracting parties in respect of social and medical assistance in accordance with the obligations of contracting parties under the European Convention on Social and Medical Assistance. It considers as social assistance, benefits for which individual need is the main criterion for eligibility, without any requirement of affiliation to a social security scheme aimed to cover a particular risk, or any requirement of professional activity or payment of contributions.

European Convention on the Legal Status of Migrant Workers (Council of Europe, 1977) includes provisions relating to the main aspects of the legal status of migrant workers coming from Contracting parties, and especially to residence and work permits, medical examinations and vocational tests, recruitment, housing, family reunion, travel, conditions of work, transfer of savings, expiry of the contract of employment, dismissal and re-employment, social and medical assistance, social security, and preparation for return to the country of origin[13].

European Convention on Social and Medical Assistance ensure that nationals of contracting parties lawfully present in the territory of another contracting party, and who are without sufficient resources, are entitled to social and medical assistance on the same basis as nationals (Article 1) [14]. As of 15 September 2002, this convention was in force in seventeen member states[15]. The convention prohibits a contracting party from repatriating nationals from other contracting parties who are lawfully resident in its territory on the sole ground that they are in need of assistance (Article 6.a), although it may still do so if the following three conditions in Article 7.a are satisfied:

the person concerned has not been continuously resident in the territory of that Contracting Party for at least five years if he entered it before attaining the age of 55 years, or for at least ten years if he entered it after attaining that age, he is in a fit state of health to be transported, and has no close ties in the territory in which he is resident[16].

The importance of this convention is that both the provisions concerning social and medical assistance in the European Social Charter (Article 13(4)) and the European Convention on the Legal Status of Migrant Workers (Article 19) refer specifically to the obligations of contracting parties under the convention. Articles 13(1)-(2) of the Charter require contracting parties to ensure that persons without adequate resources are provided with adequate assistance and health care and that they do not suffer from the diminution of their political and social rights because they receive such assistance. Article 13(3) provides that everyone should be able to benefit from public or private services to prevent, remove or alleviate personal or family want. These rights also apply to nationals of contracting parties who work regularly or reside lawfully within the territory of another contracting party on the same basis as nationals. Article 13(4) of the Charter extends the scope of these provisions by stipulating that they are to be applied by contracting parties on an equal basis to the nationals of other contracting parties lawfully within their territories in accordance with their obligations under the European Convention on Social and Medical Assistance[17].

Treaty Establishing the European Community (EC Treaty) provides for freedom of movement for workers from EU member states, although transitional arrangements are in place limiting this freedom for nationals from certain new member states. The Treaty prohibits any discrimination based on nationality between these workers as regards employment, remuneration and other conditions of work and employment, including social security (Arts. 12 and 39). The EC Treaty also invites the EU Council of Ministers to take measures necessary to ensure equality of treatment and to combat discrimination based on, inter alias, race, ethnic origin, religion or belief, and sexual orientation. The Council is also empowered to take measures in the field of asylum, immigration and safeguarding of the rights of nationals of third countries, although the measures adopted to date on legal migration have afforded third-country nationals lesser rights than those granted EU citizens.

European Union Charter of Fundamental Rights, adopted in 2000, sets out in a single text, for the first time in EU history, the whole range of civil, political, economic and social rights of EU citizens and all persons resident in the European Union.

Council Directive 2003/109/Ec f 25 November 2003 on 3rd country nationals who are long term residents respects the fundamental rights and observes the principles recognized in particular by the European Convention for the Protection of Human Rights and Fundamental Freedoms and by the Charter of Fundamental Rights of the European Union[18]. It promotes the integration of third-country nationals who are long-term residents in the Member States as a key element in promoting economic and social cohesion[19]. This directive specifies that long-term residents should enjoy equality of treatment with citizens of the Member State in a wide range of economic and social matters. With regard to social assistance, the possibility of limiting the benefits for long-term residents to core benefits is to be understood in the sense that this notion covers at least minimum income support, assistance in case of illness, pregnancy, parental assistance and long-term care[20]. The modalities for granting such benefits should be determined by national law. A broader view of directive 109 provisions is presented in the chapter with social advantages for TCN’s in EU.

Council Recommendation 92/441/EEC[21] of 24 June 1992 on common criteria concerning sufficient resources and social assistance in social protection systems. This Recommendation, adopted in June 1992 at the Lisbon European Council, recognizes the basic right of a person to guaranteed sufficient resources and social assistance, as part of a comprehensive and consistent drive to combat social exclusion, and to adapt their social protection systems as necessary. It is open to all individuals resident in the Member State in accordance with national and Community provisions that do not have access to sufficient resources individually or within the household in which they live.

Council Regulation (EEC) No 1408/71 of 14 June 1971 on the application of social security schemes to employed persons and their families moving within the Community (5), provide Third-country nationals with refugee status equal social security rights with EU nationals.

Council Regulation (EC) No 859/2003 extends the provisions of Regulation (EEC) No 1408/71 and Regulation (EEC) No 574/72 to nationals of third countries who are not already covered by those provisions solely on the ground of their nationality. It ensure fair treatment of third country nationals legally residing in the territory of Member States, granting them rights and obligations comparable to those of EU citizens. In this regulation is enhanced social and cultural life and the legal status of TCN is approximated to that of Member States' nationals. A high level of social protection is promoted and a set of uniform rights as near as possible to those enjoyed by EU citizens is granted to TCN.

European Community agreements with third countries

The Community has power to enter into agreements with third countries which agreements may either be limited to matters within the exclusive competence of the Community or cover a wider mix of issues including areas of shared competence between the Member States and the Community[22]. 

Turkey Agreement:

The EEC-Turkey Association Agreement[23], implemented by Association Council Decisions 2/76, 1/80 and 3/80,4 provides for certain rights for Turkish nationals and their family members employed and resident in EU member states. Turkish workers resident in EU member states are also entitled to the same protection from expulsion as EU nationals employed in other member states. With regard to social security rights, the European Court of Justice has also held that Article 3(1) of Decision 3/80, which affords Turkish workers and their family member’s treatment equal to that of nationals of member states, confers direct effect[24].

Algeria, Morocco and Tunisia:

The agreements with the Maghreb countries of Algeria, Morocco and Tunisia[25] confer equal treatment on Maghreb nationals employed and resident in EU member states as regards their working conditions or remuneration and social security[26]. These non-discrimination provisions have been found by the European Court of Justice as containing sufficiently clear and precise obligations to confer direct effect in EU countries of employment[27]. Equal treatment in social security extends to family members, who have been defined broadly by the ECJ to include the parents of the worker and his or her spouse residing in the host member state[28].

In the field of social security, these agreements are generally based on the following principles:

  • Equal treatment with nationals of the Member States in which they are employed, of Moroccan workers and members of their families living with them, for all branches of social security covered by Regulation 1408/71.
  • Aggregation of periods of insurance, employment or residence completed in the Member States for each of the above social security branches, with the exception of unemployment benefits, industrial accident or occupational disease benefits, and death grants;
  • Transfer of family benefits to other Community countries;
  • Transfer to Morocco of old-age, survivors’ and invalidity benefits, and industrial accident or occupational disease benefits;
  • Application of these principles by Morocco to Community workers, with the exception of aggregation.

Europe Agreements:

The Community can enter into Europe Agreements with third countries which may also be candidates for accession to the EU. These agreements include a provision guaranteeing equal treatment of migrant workers and nationals as regards working conditions, remuneration or dismissal. In contrast to the agreements with the Maghreb countries, however, equality of treatment in the Europe Agreements in respect of social security is dependent on the adoption of provisions for the co-ordination of social security schemes by the Association Council established under each agreement.

The Ruling of the European Court of Justice

Under the EU law, the rights of non-EU nationals (including Turkish nationals) to entry, residence, work, social security benefits, education and other social and tax advantages are based either on their relationship with EU nationals or firms (derivative rights) or on their status as a national of a country with which the Community has concluded an international agreement (direct rights)[29].

The EU law differs from other instruments of international law in that decisions, agreements and acts of the institutions of the Community are directly applicable in the Member States. Of course, not all provisions of directly applicable international law are capable of direct effect[30]. When a provision of EU law is directly effective, domestic courts are under an obligation not only to apply it, but to do so in priority over any conflicting provisions of national law according to the principle of primacy of EU law[31]. Therefore, EU law has priority over national laws in the areas in which they apply.

Under the EU law, where a right deriving from an agreement is found to be directly enforceable by the ECJ (direct effect), it is part of the acquis communautaire and must be applied by the Community's national courts. Furthermore, if it appears to a national court that a national provision does not comply with community law, the court is under an obligation to apply Community law and if necessary grant interim relief while the opinion of the ECJ is being asked[32].

Despite the jurisprudence of the ECJ clarifying the treatment of third country nationals having an advantageous legal status close to nationals of Members States, a comprehensive and exclusive Community competence in this area still remains to be unresolved. A dichotomy was developed over the years by the Member States, by explicitly recognizing, on the one hand, the requirement of much closer consultation and co-operation at Community level in the implementation of national migration policies vis-à-vis third countries[33]. On the other hand, Member States always underlined that matters relating to the access, residence and employment of migrant workers from third countries fall under the jurisdiction of the governments of the Member States and nothing shall stop them to take measures to control immigration form third countries[34].

2. TCN In European Union

Definition of TCN

According to Article 17(1) of the Treaty”[35] ‘third country national (TCN) is “any person who is not a citizen of the Union within the meaning of this definition includes a number of categories of persons: Refugees, asylum seekers, migrant workers, those who enter through family reunion, and legally resident and undocumented immigrants. It also includes stateless persons, in accordance with the definition in the Constitutional Treaty.

Categories of TCN

Third country nationals are contrary to EU-nationals. Their situation differs not only from European Union Nationals but also between the different categories of third country nationals.

Referring to the definition of TCN the following categories can be distinguished:

Asylum Seeker: is someone who makes a claim for asylum in a country other than their own. The rights of asylum seekers are more restricted than the rights of refugees in relation to movement (where they can travel to), employment, health care and social security.

Illegal Immigrant: is someone who has moved from one state to another without any legal claim, such as a visa or a claim for asylum.

Migrant Unlike refugees, migrants do not fear persecution from their home state. Instead, they make a conscious decision to move and have the freedom to return to their state of origin if they wish.

Refugee: in the 1951 Convention relating to the Status of Refugees a refugee is defined as someone who: "owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group, or political opinion, is outside the country of his nationality, and is unable to or, owing to such fear, is unwilling to avail himself of the protection of that country"[36].

Stateless Person: is someone who does not belong as a citizen to any state. A stateless person may also be a refugee but this is not always the case. For example, a person may leave their home state without persecution. Some people are also born into statelessness due to their parents either being stateless themselves, or unable to register the birth of their child.

According to the legal base which covers TCN the following categories can be distinguished[37]:

Third country Nationals from EFTA states. They are covered by regulation (EEC) No 1408/71 and their situation is similar to EU-nationals.

Third country Nationals who are family members of EU nationals, partly covered by Regulation (EEC) No 1408/71.

Third country Nationals covered by agreements concluded between the community and third countries.

Third country Nationals covered by multilateral agreements such as agreements of the Council of Europe, ILO etc.

Third country Nationals covered by bilateral agreements.

Third country Nationals who are not covered by any agreement.

Legal Status of TCN

According to their legal status, immigrants in European countries can be grouped into four different categories[38]:

  1. The immediate citizenship model. The receiving state recognizes the immigrants as citizens immediately on their arrival.
  2. The quasi-citizenship model, immigrants have a similar status but not completely identical to the citizenship model. Alien resident have the same rights as the citizens of the host state in almost all fields of social life.
  3. Privileged treatment for special categories of immigrants, rights to enter or stay in the country are granted to certain special categories of aliens. Their residence rights are protected. Those aliens have limited possibilities for expulsion or deportation[39]. They have special rights or same treatment as citizens in several areas.
  4. Denizen[40] status, or semi-citizen status, aliens receive almost full residence rights (expulsion being limited to exceptional cases). Equal treatment with citizens is granted in most areas of public life (access to all jobs, equal rights to housing, education and social security) and sometimes even in political life.

The exact content of the rights included in each model may differ slightly from country to country. The main differences in Social and political rights granted to immigrants are between the first model and the other three models. Full set of social and political rights are granted only to immigrants with citizenship of the country of residence. As for the other three models immigrants social and political rights are limited to the right to participate in elections on the local or the regional level and the access to certain jobs in the public service.

3. Social Advantages of Third Country Nationals In European Union

It is not easy to define social advantages of TCN’s in European Union. Social advantages and social rights of TCN’s depend on their legal status. Different categories of TCN’s enjoy different social rights within the Union. Illegal immigrants, for example, cannot claim any rights and are not eligible for any welfare schemes because of their impossibility of presenting any official documents (identification, residence or work permit, etc.) regarding their status. Regular immigrants have a more favorable situation and enjoy rights and obligations comparable to those of citizens of the European Union. According to their status, their social rights are included within different directives and regulations.

The European Council, in its special meeting in Tampere on 15 and 16 October 1999, acknowledged the need for harmonization of national legislation on the conditions for admission and residence of TCN’s. In this context, it has in particular stated that the European Union should ensure fair treatment of third country nationals residing lawfully on the territory of the Member States and that a more vigorous integration policy should aim at granting them rights and obligations comparable to those of citizens of the European Union.

Council Regulation (EEC) No 1408/71 has a restricted personal scope of application and provides equal social security rights with EU nationals only to third-country nationals with refugee status.

Its was only after the entry into force of the Council Regulation (EC) No 859/2003 that the provisions of Regulation (EEC) No 1408/71 and Regulation (EEC) No 574/72 were extend to nationals of third countries who are not already covered by those provisions solely on the ground of their nationality. Regulation (EC) No 859/2003 ensure fair treatment of third country nationals legally residing in the territory of Member States, granting them rights and obligations comparable to those of EU citizens. This regulation enhanced social and cultural life of TCN’s.

The legal status of TCN is approximated to that of Member States' nationals. It also promote a high level of social protection and a set of uniform rights for TCN’s as near as possible to those enjoyed by EU citizens. Special provisions are applied in Germany an Austria. In Germany family benefits are paid only to third-country nationals who are in possession of a residence permit as defined in German law of the ‘Aufenthaltserlaubnis’ or ‘Aufenthaltsberechtigung’. In Austria, family benefits are paid only to third-country nationals who fulfill the conditions laid down by Austrian legislation for permanent entitlement to family allowances.

According to Council Directive 2003/86/EC of 22 September 2003, TCN’s are granted the right to family reunification. Family reunification is applied in any case to members of the nuclear family, that is to say the spouse and the minor children. Member States decide whether they wish to authorize family reunification for relatives in the direct ascending line, adult unmarried children, unmarried or registered partners as well as, in the event of a polygamous marriage, minor children of a further spouse and the sponsor[41]. The sponsor's family members are entitled in the same way as the sponsor to social rights. Denmark does not take part in the adoption of this Directive, and is not bound by it or subject to its application.

According to the ECJ, TCN family members of EU citizens are entitled to the same residence, work and welfare rights as member state nationals. However, this right, for the ECJ, is not directly held by the foreign family member as a “human” right, but is instead derived from the rights of EU-national economic migrants, meaning that the ECJ has intentionally limited the legal standing of TCNs to economic matters (Guiraudon 1998).

Council Directive 109/2003 applies social advantages to third-country nationals legally residing in the territory of a Member State. It promotes the integration of TCN’s who are long-term residents in the Member States as a key element in promoting economic and social cohesion. According to this directive, long-term residents should enjoy equality of treatment with citizens of the Member State in a wide range of economic and social matters. Referring to Article 11 of the directive 109/2003, long-term residents shall enjoy equal treatment with nationals as regards:

access to employment and self-employed activity, provided such activities do not entail even occasional involvement in the exercise of public authority, and conditions of employment and working conditions, including conditions regarding dismissal and remuneration;

education and vocational training, including study grants in accordance with national law;

recognition of professional diplomas, certificates and other qualifications, in accordance with the relevant national procedures;

social security, social assistance and social protection as defined by national law;

tax benefits;

access to goods and services and the supply of goods and services made available to the public and to procedures for obtaining housing;

freedom of association and affiliation and membership of an organization representing workers or employers or of any organization whose members are engaged in a specific occupation, including the benefits conferred by such organizations, without prejudice to the national provisions on public policy and public security;

free access to the entire territory of the Member State concerned, within the limits provided for by the national legislation for reasons of security[42].

Member States, in certain cases, may restrict equal treatment to access to employment and to education for nationals. Member States, in the field of social assistance and social protection may limit equal treatment to core benefits. They are nevertheless free to add to the list of areas in which they grant equal treatment with nationals or the list of benefits they provide for their nationals[43]. With regard to social assistance, the possibility of limiting the benefits for long-term residents to core benefits is to be understood in the sense that this notion covers at least minimum income support, assistance in case of illness, pregnancy, parental assistance and long-term care. The modalities for granting such benefits should be determined by national law.

Another legal instrument which provide social advantages for TCN’s is the European Convention on Social and Medical Assistance. In its scope of application article 1 it defines; “Each of the Contracting parties undertakes to ensure that nationals of the other Contracting Parties who are lawfully present in any part of its territory to which this convention applies, and who are without sufficient resources, shall be entitled equally with its own nationals on the same conditions to social and medical assistance (hereinafter referred as ‘’assistance’) provided by the legislation in force from time to time in that part of its territory”[44].

As for the European Social Charter (1961) as well as the Revised European Social Charter (Council of Europe, 1996) Article 12(4), is clearly ensured equal treatment between the nationals of contracting parties in respect of social security rights by the conclusion of bilateral or multilateral agreements (or by other means). Article 13(4), ensures equal treatment of foreigners lawfully within the territory of contracting parties in respect of social and medical assistance in accordance with the obligations of contracting parties under the European Convention on Social and Medical Assistance. In its provisions social assistance is considered as benefits for which the main criterion for eligibility is the individual need.

The case law of the ECJ on social advantages is scarcely manageable any longer. The concept is interpreted broadly by the Court and comprises “all the advantages which, whether or not linked to a contract of employment but are generally granted by virtue of the mere fact of residence on the national territory”[45]. Support is provided in term of social assistance or minimum income etc. Social advantages as referred to ECJ, do not only consist in monetary and in-kind benefits but may involve the award of social positions. 

4. Social Assistance In European Union

Definition of social assistance[46]

Modern social assistance program, distinguished by five formal features: (1) Social assistance serves as a last resort benefit for all those who have no other sources of income (through own income and public or private transfers) and assets; (2) Social assistance is a legal entitlement to every citizen in need; (3) Social assistance is conditional on a standardized means test and benefit rates are legally fixed; (4) Benefit calculation is made according to a measurement of costs of living and benefits should guarantee a subsistence minimum; (5) Social assistance is provided as long as the need situation continues and is not time limited.

For social assistance there are several definitions which all include notions like: non- contributory transfers which are targeted to that part of the population most vulnerable and poor. Safety nets, targeted social assistance, means-tested social transfers, targeted income support to the poor, social assistance non-contributory income support programs for the poor, are used as synonymous of social assistance. In many European countries, Social Assistance is a residual tool within social protection considered as an instrument of last resort.

Social assistance is not a very important part of social security in money terms but it is important in moral terms. It is the last resort to help citizens in need. It primarily aims at providing people with the means to leave a decent life. It tends to be the most controversial element in social security. Controversies about social assistance contaminate the entire social security system. If social assistance is seen to be faulty, social security as such falls into dispute. Social assistance is also referred as “Basic Minimum Income”[47]. 

Modern social assistance has the form of means tested income support which is available to citizen as a matter of right determined by objective criteria. What makes social assistance modern is that it is organized around rights. Rights are part of citizenship and the need is not something anyone should feel shame about or looked down upon.

Social Regimes and Social Protection Delivery Systems

Social Regimes

There are various distinct classifications of social protection policy. The most widely recognized categorization divides the countries into three broad groups[48]:

  • liberal regimes, based mainly on means-tested benefit delivery, with relatively low levels of social insurance and universal benefits;
  • corporatist or conservative states, depend highly on contributory social insurance, with average spending on social assistance;
  • social democratic regimes, characterized by higher benefit spending, and particularly strong universal benefits.

Social Protection Delivery Systems

There are three broadly recognized ways in which governments deliver benefits to individuals or households[49]:

  • Universal” benefits, which go to all citizens in a certain social category, and are not related to income or employment status. It is mainly encountered in France and the Benelux countries - Example : Childcare in Sweden, where any parent can access these services for their children;
  • Social insurance, or “selective” benefits, are provided to persons affected by a particular social event (unemployment, disability) according to contributions to they may have made into an insurance plan;
  • Means-tested, or “residual” benefits, for which eligibility corresponds to a test of resources of the persons receiving the benefit. Means-testing for these benefits may invoke a poverty line or a specific group. The means – tested benefits can be further categorized in the following way:

1). General assistance: provides cash benefits for all or almost all people below a specified minimum income standard (cell I above): for example, the UK Income Support or the Belgian Minimex.

2). Categorical assistance: provides cash benefits for specific groups (cells 2+6 above). Examples include unemployment assistance in Germany and the Netherlands, social pensions in Italy.

3). Tied assistance: provides access to specific goods or services in kind or in cash.

“Cash benefits are periodic payments provided to people with insufficient resources. Conditions for entitlement may be related not only to the personal resources but also to nationality, residence, age, availability for work and family status. The benefit may have a limited or an unlimited duration; it may be paid to the individual or to the family, and provided by central or local government. Other cash benefit support for destitute and vulnerable persons to help alleviate poverty or assist in difficult situations. These benefits may be paid by private non-profit organizations”[50].

Benefits in kind provide shelter and board to destitute or vulnerable people, where these services cannot be classified under another function. This may be short term in reception centers, shelters and so on or on a more regular basis in special institutions, boarding houses, reception families and so on. It includes also rehabilitation of alcohol and drug abusers aiming the reconstruction of social life for drag abusers, making them able to live an independent life. The treatment is usually provided in reception centers or special institutions. Other benefits in kind include basic services and goods to help vulnerable people, such as counseling, day shelter, help with carrying out daily tasks, food, clothing, fuel, etc... Legal aid provided with a means-test is also included.

Because of the importance of housing assistance, and because its relationship with cash assistance varies across countries, tied assistance is further divided as follows:

a. Housing assistance

b. Other tied assistance.

Role of Social assistance

Providing a minimum income to people without resources was seen as a moral duty and helped to maintain a degree of social stability. Social assistance, also referred to as the “social safety net” refers to those benefits designed to serve as a last resort against poverty. By providing the necessary resources, social assistance is a very effective instrument to fight poverty and material difficulties. It is important to recognize that social assistance policies do not operate in a policy vacuum, but interact with the other policies described above within country-level umbrella of social-protection policy.

Its role and importance is contingent upon the structure, characteristics and success of the economy, state and other forms of protection. Social assistance together with social insurance, are the other major component of social protection. Social assistance schemes are designed to protect families against poverty. The traditional role of social assistance has been as a transfer mechanism aimed at redistributing income and resources to the needy in society, helping them to overcome short-term poverty during periods of crisis.

For the importance of social assistance, the Universal Declaration of Human Rights, in its Article 25 specifically addresses the needs and rights of vulnerable groups saying “Everyone has the right to a standard of living adequate for the health and wellbeing of himself and of his family, including food, clothing, housing and medical care and necessary social services, and the right to security in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in circumstances beyond his control”[51].

The importance and nature of social assistance schemes vary across countries. The institutional design affects the demographic and social characteristics of beneficiaries. For corporatist regime countries it is typical to have the role of family support. Familialism is recognized, for example, in Germany and the Southern European countries in a way that assistance is not granted even to adults if their parents are able to support them[52]. Liberal welfare states are characterized with a stronger emphasis on work[53], and a common idea is that the welfare state should comfort only those people whose earnings capacity is limited. Nordic countries are conversely characterized with a strong degree of citizenship and one all-encompassing scheme[54].

Personal scope

As to the European Social Charter (revised), foreigners who are nationals of Contracting Parties and are lawfully resident or working regularly in the territory of another Party and lack adequate resources enjoy an individual right to appropriate assistance on an equal footing with nationals, without the need for reciprocity.

Referring to the Convention on the Status of Refugees[55], states grant to refugees lawfully staying in the territory, treatment as favorable as possible and in any case not less favorable than under the obligations accepted by the Contracting Party under the said Convention and under any other existing international instruments applicable to those refugees. The same requirement is extends to stateless persons respecting the status of stateless persons[56].

Equality of treatment is guaranteed once the foreigner has been given permission to reside lawfully or to work regularly in the territory of a Contracting Party. The guarantee of equal treatment is enshrined in legislation. Equality of treatment means that entitlement to assistance benefits, including income guarantees, is not confined in law to nationals or to certain categories of foreigners and that the criteria applied in practice for the granting of benefits do not differ by reason of nationality. Equality of treatment also implies that additional conditions such as length of residence or conditions which are harder for foreigners to meet, may not be imposed on them.

Level and Duration of Social Assistance Benefits

In European Union countries assistance must be “appropriate”, i.e. make it possible to live a decent life and to cover the individual’s basic needs. In order to assess the level of assistance, basic benefits, additional benefits and the poverty threshold in a country are taken into account. The income of a household is established by summing all monetary income received from any source by each member of the household. In order to reflect differences in household size and composition, this total is divided by the number of "equivalent adults" using a standard scale. The resulting figure is attributed to each member of the household and calculated on the basis of the poverty risk threshold by Eurostat.

The assistance is considered to be appropriate where the monthly amount of assistance benefits – basic and/or additional – paid to a person living alone is not manifestly below the poverty threshold in the above sense[57]. In conducting this assessment, the Committee also takes the level of medical assistance into account.

Duration of social assistance is generally unlimited where needs continue, except for specific benefits for young people in some countries. In Austria, there is no fixed time limit on claiming. In Belgium and Germany all minimum benefits are unlimited while eligible as long as all the conditions are met and resources are still low. In France the Maximum period of entitlement is of 60 months.

Conditioning of Social Assistance

Social assistance system of must be universal in the sense that benefits must be payable to “any person” on the sole ground that he/she is in need. This does not mean that specific benefits cannot be provided for the most vulnerable population categories, as long as persons who do not fall into these categories are entitled to appropriate assistance[58]. Similarly, a minimum age limit may people below that age limit receive appropriate assistance.

The obligation to provide assistance arises as soon as a person is in need, i.e. unable to obtain “adequate resources”. This means the resources needed to live a decent life and “meet basic needs in an adequate manner”. Conversely, appropriate assistance is that which enables any person to meet his/her basic needs.

The right to assistance presupposes that the person is unable to obtain resources “either by his own efforts or from other sources, in particular by benefits under a social security scheme”[59]. The establishment of a link between social assistance and a willingness to seek employment or to receive vocational training should be kept in order to promote social integration and to find a reasonable and consistent way to give end to individual’s difficulties. Reducing or suspending social assistance benefits can only be done if it does not deprive the person concerned of his/her means of subsistence.

5. Social Assistance In Four European Union Countries

European Union Countries provide social assistance for persons in need in different ways. They are guided almost from the same principles but apply different provisions. Access to social assistance is governed according to national rules. In this section, the aim is to present an analysis of how four countries like Germany, Austria, France and Belgium administer their social assistance systems, their legal and administrative structures and rules of eligibility, relative rules which determine the benefits etc. For national provisions about services and allowances see annex 1.

1) Germany

In Germany, Social Assistance is the last resort for all those who do not have sufficient income or assets and who are not sufficiently covered by the benefits of the primary social security system[60]. It is laid down in the Bundessozialhilfegesetz[61]. Social Assistance function is to guarantee a dignity life, provide a decent standard of living to all people and reduce social disadvantages. Although the Social Assistance provide a minimum social standard, the German Government tries to prevent poverty through a broad range of activities. Foreigners residing in Germany also receive social assistance at a higher than average rate because they are more likely to be unemployed or earn low incomes[62].

Social assistance is governed by federal law in Germany. It forms the lowest network of social security. The prerequisite for social assistance is the fact that the recipient cannot help himself or does not receive assistance from other parties, in particular family members, or other social benefits.

On the contrary of the social insurance programs benefits, social assistance is not determined by previous contributions but is tax funded. Means tested is applied for social assistance, and recipients generally must have exhausted their savings. Recipient's close relatives (parents and children) incomes, may be considered when assessing the provision of social assistance. In addition, medical care, housing costs, winter heating, clothing, and many other expenses are can be covered by social assistance.

Social assistance comprises two types of assistance: benefits to help with living expenses and assistance in particular circumstances. Benefits to help with living expenses are paid to people who cannot afford to keep themselves from their own resources, particularly income and savings. Benefits in principle are not payable with regard to the past.

The second large area of social assistance benefits covers the special needs of specific groups of people in particular circumstances (e.g. sickness benefit, integration assistance for the disabled and help with long-term care). The benefits with regards to special needs are nearly all benefits in kind. The level of benefits is determined according to a mechanism set up by legislation on a federal state level. According to the Bundessozialhilfegesetz the amount of the benefit must be below the wage level of the lowest paid wage groups. The level of benefits to help with living expenses has risen considerably since the Federal Social Assistance Act (Bundessozialhilfegesetz) came into force in 1962.

Categories of social assistance towards living expenses (Hilfe zum Lebensunterhalt) are[63]:

  • Regular payments of standard rates (Regelsätze) in varying amounts for single persons or heads of household, husbands or wives and children (depending on their age) incl. flat-rate one-time benefits.
  • Allowances for housing and heating.
  • Securing the individual need in special circumstances:
  • assistance in case of sickness,
  • integration assistance for disabled persons,
  • care assistance,
  • assistance in resolving certain social difficulties,
  • assistance in other circumstances (e.g. to continue to manage the household, assistance to the elderly, assistance for the blind, funeral costs).

Claims on other social benefits and relating to persons obliged to pay maintenance have to be exhausted according to the provisions of the Social Code, Book XII[64].

There is no age condition; minors can claim in their own right. From the age of 65 and in case of permanent full earning incapacity from the age of 18, the Needs-based pension supplement in old age and in the event of reduced earning capacity (Grundsicherung im Alter und bei Erwerbsminderung) is granted instead of the assistance towards living expenses (Hilfe zum Lebensunterhalt).

The assistance towards living expenses (Hilfe zum Lebensunterhalt) includes in particular food, accommodation, clothes, personal hygiene, household equipment, heating and personal needs of daily life[65]. The overall need for necessary subsistence resources is provided as standard rates (Regelsätze) and the full coverage of cost of accommodation and heating.

2) Austria

In Austria, social assistance is the sole responsibility of the provinces. Rules of eligibility as well as benefit levels vary across them. In general, there are no uniform procedures, and granting of claims is highly discretionary. District authorities have further discretionary owner: even if there are provincial regulations, these rules tend to provide only a broad framework within which district authorities are free to operate. While benefits in cash are most prominent, there are also some benefits in kind and assistance in special circumstances (natural disasters etc).

The Social Assistance Acts passed at Länder level provides for the counseling and personal support required to prevent, eliminate or alleviate a personal or family predicament. Of the social services provided they list in particular: home care for the ill, family assistance, household help, general and special counseling, services to promote social contacts and to foster participation in cultural life; respite care for the elderly and disabled, accommodation in homes run by the social assistance service. Advice and counseling on social assistance are primarily provided by bodies at district administrative level and the specialized departments at the offices of the provincial governments. This also applies to services for the disabled, with team consulting on individual cases organized with the participation of medical experts, representatives of the Federal Office for Social and Disabled Services, representatives of the social insurance institutions and representatives of the Public Employment Service.

The Vienna Sozialhilfegesetz names as an objective of social assistance efforts to enable persons to live a dignified life even when they need help from the community to do so.

Principles of social assistance[66]:

help targeted at individuals and families,

preventive and follow-up help

help for self-help

timely granting of social assistance

legal title

subsidiary

no application necessary

Types of help

help to secure the necessities of life

help in special life situations

social services 

In principle, social assistance (Sozialhilfe) including entitlement is only granted to Austrian residents, refugees under the Geneva Convention, nationals from states with which Austria has concluded mutual agreements, and to those foreigners who are assimilated on the grounds of state treaties[67]. In principle there are no special age limits. A person capable to work, must be willing to perform reasonable work, except when older than 65 (man) or 60 (women)[68]. The legal situation differs in the individual Länder with regard to non-assimilated foreigners.

Categories[69]:

Single persons without duty to care for children,

persons who take care of the upkeep of the family income with dependent family members,

dependent family members in their own right.

2 Länder grant individual basic rates to single parents.

Basic rates (Richtsätze) are fixed for food, maintenance of clothes, personal hygiene, heating and lighting, smaller household appliances and personal needs of an appropriate education and the participation in social life[70]. Supplementary cash benefits or benefits in kind cover the needs which are not covered by the basic rate accommodation, clothing, etc.

The "socio-political level" of allowances granted under social assistance as a whole can not just be derived from the amount of the basic rates as such. However, the need which is to be met by the respective basic rate has to be taken into consideration and to what extent the need for accommodation will be met beyond the respective basic rates and which other possible benefits could be claimed.

3) France

Social Assistance in France consists of a minimum income scheme for person who make efforts to integrate in social life and the classical social assistance. The Applicable statutory basis is the Social action and Family Code (Code de l'action sociale et de la famille), articles L. 262-1 and following[71]. The general assistance scheme for the minimum integration income is called revenu inimum d’insertion RMI. The Basic principles which govern the scheme are to enable those in need to dispose of minimum revenues in order to satisfy essential requirements and to encourage sociological and professional integration of deprived persons[72].

In France there are several specific assistance benefits designed of categories of persons in need. The claimant must be willingness to work, available for training, integration, or employment activities on the basis of an integration contract[73]. The entitled person must take part in social activities which have integration purposes. During the contract period, the person concerned receives an income equal to the minimum income (SMIC) corresponding to the number of hours worked. During the whole contract period, this person continues to receive the guaranteed minimum resources (Revenu Minimum d'Insertion, RMI) allowance from which the aid paid to the employer is deducted (amount of RMI allowance for a single person).

The benefit rate depends upon the composition of the family. The amount is increased by 30% for each child and 25% for each person younger that 25 years who is dependant on the claimant. The claimant must agree to participate in activities aimed at integration. The revenu inimum d’insertion RMI is first granted for a period of three months. After this period there is a possibility of extension for periods of between three months and one year.

4) Belgium

Social protection in Belgium includes social security and social assistance. Applicable statutory basis for the right to social integration (droit à l'intégration sociale) including the Integration Income revenu d'intégration/leefloon) is Law of 26 May 2002 on the Right to social integration (Droit à l'intégration sociale). Social assistance is administered by public bodies. Public Centers for Social Welfare administer the minimum subsistence legislation and also grant social services in the territory. Allowances for the handicapped are administered by a special service of the Ministry of Social Affairs.

To be entitled to social assistance these are the general administrative requirements. Claimant’s principal place of residence must be in Belgium and must actually live in Belgium, must have the Belgian nationality and have to be at least 21years old and younger than 65 years old. A means test is carried out. Applicant and the person he forms the family must have insufficient means.

Assistance schemes ensure that child benefits are payable with regard to children fro whom there is no right to child benefit within the professional scheme. A minimum income is guarantied to the handicapped, to the elderly (all persons of sixty five years or older may be eligible for the income guarantee for the elderly), and to all citizens (subsistence minimum). Further more handicapped people who have been found to be incapable of self support are eligible for and integration allowan


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