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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 allowance. Material and non material social welfare services from the municipal public center for social welfare is also provided in terms of individualized assistance.

Every resident with one dependent child may be eligible for minimum subsistence level. Every person who has a Belgian residence with a place of residence in Belgium, who has inadequate means of subsistence and who cannot earn such means through his her own efforts is entitled to the subsistence minimum (leefloon).

The level of subsistence minimum varies for cohabitating spouse and person living together with unmarried minors at charge, single people etc. According to Belgian legislation on the Public Centers for Social Welfare, every person has the right to social services which are necessary for having a life in human dignity. The subsistence minimum is financed half by the local Public Centers for Social Welfare and half by the Central Government. 

6. Social Assistance For Third Country Nationals In Four European Union Countries

Social assistance (programs for the poorest to cover their basic needs) together with social security (unemployment, old age, invalidity benefits) are an integral part of Social protection. 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. In the following we will have a view of how TCN are treated in Germany, Austria, France and Belgium as regarded to social assistance.

1) Germany

Social assistance is a key plank in Germany’s comprehensive welfare system. All German residents (including non-nationals) who have no source of income are entitled to receive social assistance benefits[74]. Germany provides Equal treatment of nationals of other Parties in respect of social security.

The categories covered by German legislation are Nationals; citizens of the signatory countries to the Social Security agreement (e.g. all EU Member States), persons granted political asylum; other foreigners (with restrictions) [75]. Rules for benefits for asylum seekers, civil war refugees and foreigners with enforceable need to emigrate are determined according to the Asylum Seeker Benefits Act (Asylbewerberleistungsgesetz, AsylbLG)[76].

A foreigner who has no residence permit and no residence right based on European Community law receives benefits covering necessary subsistence and non-postponable medical benefits (basic medical care) in accordance with the Asylum-Seekers Benefit Act.

In accordance with section 4 of the Asylum-Seekers Benefit Act, medical and dental treatment, supply of medicines and bandages, as well as other benefits necessary to heal, improve or alleviate diseases or their consequences are however provided only with acute diseases and pain conditions. Also included is hospital treatment plus the further care benefits necessary with a hospital stay since this is medical treatment. The doctor decides on the necessary treatment in the individual case from a medical point of view. If an acute need to treat a chronic disease arises, this too is covered by section 4 of the Asylum-Seekers Benefit Act.

Over and above this, in accordance with section 6 of the Asylum-Seekers Benefit Act, benefits can also be granted which are indispensable to ensure health in individual cases. This may also include treatment measures with chronic diseases, non-postponable medically-necessary measures for rehabilitation or medically-necessary aids.

The above restrictions only apply to asylum-seekers during the first 36 months of their asylum proceedings. After that time, in accordance with section 2 of the Asylum-Seekers Benefit Act, this group of individuals receives benefits in accordance with the regulations of the Federal Social Assistance Act on assistance during sickness, i.e. they receive medical treatment according to the nature and scope of the benefits of statutory health insurance (section 48 subsection 2 sentence 2 of the Twelfth Book of the Social Code).

Social insurance for TCN

The adoption of unilateral measures as the Committee recommends by aggregating German and foreign insurance periods in the German legal regulations cannot be considered for the Federal Government because of the principle of reciprocity. This also concerns health insurance. Old-age pensions can be exported outside of bilateral agreements.

As to accident insurance, the benefits of German statutory accident insurance are also provided to insured persons who have their habitual residence abroad. The insured parties receive monetary benefits, in particular pensions, as well as the costs refunded for all other benefits to be provided, such as medical treatment, including the costs for care in a home. The allowance of foreign insurance periods is immaterial for the benefits of German statutory accident insurance.

Accident insurance is acute insurance. Insurance protection and scope are hence determined by the current situation of the insured party at the time of the insured event. Earlier insurance periods are also not relevant for financial benefits such as pensions, regardless of whether they were at home or abroad. The inclusion of third-state nationals with legal residence in a Member State and with cross border situations within the EU took place with Council Regulation (EC) No 859/2003. Germany also adheres in practical application to the principle of equal treatment determined therein. Accordingly, the regulation only applies to third-country nationals who are in possession of a residence permit provided for in German law, such as an “Aufenthaltserlaubnis” (residence permit) or “Aufenthaltsberechtigung” (right of unlimited residence).

2) Austria

Being that Social assistance in Austria is organized in provinces we will try to have a view of how they treat Third Country Nationals. The acts governing social assistance in Carinthia (minimum social protection), Upper Austria and Styria do not distinguish between nationals and non-nationals. The acts governing social assistance in Burgenland, Lower Austria, Vorarlberg, Vienna and Salzburg and the act governing basic protection in Tyrol i.a. provide for equal treatment of nationals and non-nationals where such results from state treaties (e.g. the European Social Charter) or where reciprocity with the home state prevails in actual practice.

The Social Assistance Acts of Salzburg, Vienna, Lower Austria and Burgenland and the Tyrolean Act Governing Basic Protection provide for equal treatment of non-nationals when asylum has been granted under the Asylum Act.

Non-nationals in need of help but not enjoying equal treatment with nationals is granted within the scope of social assistance sufficient subsistence (Vorarlberg), help to secure the necessities of life/subsistence , help in case of illness and help for pregnant women and women in confinement. Also covered is the cost of a simple burial (Vorarlberg, Tyrol).

The social assistance institution may furthermore grant non-nationals who do not enjoy equal treatment and who have permission to stay in Austria benefits to secure their subsistence, help in case of illness and help for pregnant women and women in confinement if this appears to be due in view of their personal, family or economic situation to avoid any social hardship.

Subject to the prerequisite of a lawful abode (including one of a prolonged duration), benefits are thus granted also to nationals of the Contracting Parties to the revised European Social Charter within the scope of social assistance. In addition, the following regulations ensure that non-nationals without any lawful abode in Austria obtain medical and social help and care as required:

Section 18 of the Krankenan stalten- und Kuranstaltengesetz (Federal Hospitals and Health Resorts Act; KAKuG) obliges each Land (state) to provide adequate hospital nursing for impecunious individuals in need of a hospital. Under Section 23 of the same Act, nobody may be refused any necessary first aid in public hospitals. In this connection, no differentiation is made by nationality or alien status, so that medical care in an emergency is ensured for all non-nationals while they stay in Austria.

The Basic Provision Agreement of Federal Law Gazette I no. 80/2004, effective as of 1 May 2004 and entered into between the federal and state levels pursuant to Article 15a B-VG ensures provisional basic provision across the entire Austrian territory for non-nationals in need of help and protection, such as asylum seekers, persons granted asylum, expelled persons and other people who on legal or factual grounds cannot be deported.

According to Basic provision, Article 6, basic provision comprises: Accommodation in suitable quarters with due regard to human dignity and consideration of family unity; provision of adequate food; granting of a monthly pocket money for people in organized quarters and for unaccompanied minors, except when they are accommodated individually pursuant to Article 9 (2); medical examination where required upon first acceptance in line with the requirements of monitoring by the health authorities; securing of health care within the meaning of the ASVG by payment of the health insurance contribution; granting of any additional necessary benefits not covered by health insurance on a case-to-case examination; measures for persons in need of nursing care; information, counseling and social care for aliens by suitable staff including the use of interpreters, to help them cope in Austria and for their voluntary repatriation; payment of transport costs for transfers and official summons; payment of the traveling costs required for school attendance and provision of the school needs for pupils; measures to organized a daily structure on a case-to-case basis; granting of benefits in kind or monetary benefits to obtain the requisite clothing; payment of a burial as is customary locally or an equal amount for repatriation; and granting of repatriation counseling, traveling costs and, in special cases, a one off bridging allowance if the person returns home voluntarily.

Basic provision may be paid in parts if this satisfactorily covers the needs of the alien. The restriction or termination of benefits must not endanger the alien’s medical emergency care.

3) France

The Basic principles of the general assistance scheme in France for the minimum integration income revenu inimum d’insertion RMI 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[77].

Access to the revenu inimum d’insertion RMI for non-Community foreigners is subject to their holding a residence permit and therefore to their having spent a lasting and regular given period of residence in French territory. Nationality requirements are not imposed, although for Third Country Nationals there are requirements regarding the duration of residence. Nationals and foreigners living in stable conditions in France, said stability being determined with regard to residence permits in their possession[78]. For this category the benefits were granted only after a minimum period of residence of three years. The Law of 26 November 2003 on control of immigration has extended the period of residence required for obtaining a residence permit from three to five years, and has therefore had the knock-on effect of extending the period of residence required for access to the RMI.

France provides social assistance for all persons without any condition relating to period of residence in the national territory. The social assistance is currently co-coordinated at département level by the social monitoring system which is responsible for informing and advising persons in difficulty, operates on a permanent basis and can be called upon by any individual or body[79]. The institutions that provide such assistance include the departments responsible for taking in homeless persons, the reception and guidance services, the emergency medical service also providing social assistance, night and daytime reception centers, etc. These centers provide food, accommodation, information on administrative procedures and, sometimes, healthcare.

4) Belgium

Belgian social security law distinguishes between social insurance and social assistance. All social assistance schemes are opened to Belgians and citizens of other EC countries, stateless persons and political refugees.

Every resident with one dependent child may be eligible for minimum subsistence level. Every person who has a Belgian residence with a place of residence in Belgium, who has inadequate means of subsistence and who cannot earn such means through his her own efforts is entitled to the subsistence minimum (leefloon). All stateless persons with residence permit, refugees and persons of a foreign nationality registered at the population office, EU citizens with a residence permit of more than 3 months. Claimants must be willingness to work and prove willingness to work unless impossible for equity or health reasons[80].

The Royal Decree of 11 July 2002 on the right to social integration states that “to be regarded as genuinely resident in Belgium, a person must be habitually and permanently resident in the Kingdom, even if he or she does not have accommodation or is not listed in the population registers provided that he or she is authorized to be resident in the country”.

Social assistance schemes require the claimant to be really resident in Belgium. Third Country Nationals will have to fulfill additional conditions in order to qualify for these assistance benefits. They should belong to the categories of: foreigners registered in the municipal register; recognized refugees and displaced persons; citizens of the European Union or family members accompanying or joining them who have a residence permit for longer than three months.

Third country nationals which are not covered by community law or which have not concluded reciprocity agreements with Belgium may not receive the GRAPA when they have inadequate resources, particularly because they are not entitled to a retirement or survivor's pension under the Belgian scheme.

7. Social Rights 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.

First of all, free access to the host labor market is granted after a substantial period of time under Articles 6 and 7 of Decision 1/80. Further, they are in principle subject to "Community worker priority" policy as long as they have not fulfilled certain conditions under Articles 6 and 7.

Article 9 of Decisions 1/80 grants Turkish children legally residing with parents who have at some time been legally employed in the host Member State equal treatment in respect of entry qualification requirements to general education, apprenticeship and vocational training. The same Article goes on to state that these children "may" be eligible in that Member State to benefit from the "advantages provided for under the national legislation in this area"[81].

Article 10(1) of Decision 1/80 provides that: "The Member States of the Community shall as regards remuneration and other conditions of work grant Turkish workers duly registered as belonging to their labor forces treatment involving no discrimination on the basis of nationality between them and Community workers"[82].

Article 37 of the Additional Protocol and Article 10 of Decision 1/80 only require non-discrimination in respect of working conditions and pay. Therefore, it might be thought that Turkish employees are not expressly secured equal treatment in relation to dismissal from employment, unlike some other migrant categories in the EU. In addition, Turkish workers are not eligible to take advantage of the catalogue of employment rights listed in Regulation 1612/68, as applicable to the nationals of Member States. In particular, there is no right to claim the same "social advantages" as those afforded to host nationals and family members in pursuant of Article 7(2) of the Regulation 1612/68.

Article 39 of the Additional Protocol envisaged that the Council of Association shall adopt social security measures for workers of Turkish nationality "moving within the Community", as well as for their families residing in the Community[83]. The second paragraph of the same Article further provided that periods of insurance or employment completed in individual Member States, but not in Turkey, in respect of old-age pensions, death benefits and invalidity pensions, and also as regards the provision of health services for workers and their families residing in the Community[84], shall be aggregated. Thus the aim of Article 39(2) is to aggregate the periods of social security insurance cover acquired by a Turkish worker in more than one EU country, and excluding periods in Turkey.

In pursuance of and in order to implement Article 39 of the Protocol, the Association Council has adopted Decision 3/80, which provides Turkish immigrants in the Member States of the Community with a framework regulation as far as their social security rights are concerned. Decision 3/80 of the Association Council secures concrete rights in respect of social security benefits for Turkish workers, often by making specific references to its EU counterpart Regulations 1408/71 and 574/72. The decision applies to Turkish workers who are or have been subject to the legislation of one or more Member States, members of their families resident in the Community and the survivors of such workers (Article02).

Article 3 of Decision 3/80 implements Article 39 of the Additional Protocol by guaranteeing equal treatment for Turkish workers and their families. The Article provides that Turkish immigrants should be subject to the same obligations and enjoy the same benefits as nationals of that member state concerning certain social security benefits. Accordingly, Article 4 of Decision 3/80 provides that the following benefits must be available to Turkish workers and their families: invalidity benefits, sickness and maternity benefits, old-age benefit, survivors' benefits, benefits in respect of accidents at work and occupational diseases, death grants, unemployment benefits and family benefits.

This list of benefits is identical to that of Regulation 1408/71, in fact, as each benefit set out in the Decision is defined by reference to 1408/71. The Decision must give rise to rights directly enforceable in each Member State by Turkish workers; they must also be interpreted in the same way as the Community Regulation. Thus a Turkish worker must have equal access to these benefits as Community nationals.

8. Conclusions

Germany’s situation of social assistance is not in conformity with Article 13/3 of the Social Charter because foreign nationals are not granted the assistance on an equal footing with German nationals. Nationals of other States party are not granted the same social assistance benefits as Germans. Under the terms of section 120§3 of the Federal Social Assistance Act (Bundessozialshilfegesetz, BSHG), “foreigners who have entered Germany to claim social assistance have no right”. If we refer to Article 13/4 of the Social Charter, States are required to grant emergency social assistance (food and accommodation) to anyone in their territory pending possible repatriation.

In Austria as for the adequate assistance for every person in need varied according to province (Land). The basic allowances are supplemented by housing and heating allowances. Medical assistance is granted free of charge to all persons in need of Assistance. It is not very clear whether emergency social and medical assistance, which every province makes available to nationals, is also available to nationals of parties.

In France, the enjoyment of minimum social benefits is conditional upon residence. However, France provides assistance for all persons without any condition relating to period of residence in the national territory. The instruments for providing social assistance include the departments responsible for taking in homeless persons, the reception and guidance services (Services d’Accueil et d’Orientation – SAO), the SAMU (Service d’Assistance Médicale d’Urgence) social – emergency medical service also providing social assistance), night and daytime reception centers, etc. These centers provide food, accommodation, information on administrative procedures and, sometimes, healthcare.

In Belgium foreign nationals, whether legally present or not, are entitled to urgent medical and social assistance under the Act of 8 July 1976 on Public Social Assistance Centers (PSACs). On the other hand, the guaranteed income for the elderly (GRAPA) is not granted to nationals of States party to the Charter that are not covered by community law or have not concluded reciprocity agreements with Belgium. Foreigners who are nationals of States party to the Charter and the Revised Charter which are not covered by community law or which have not concluded reciprocity agreements with Belgium may not receive the GRAPA when they have inadequate resources, particularly because they are not entitled to a retirement or survivor's pension under the Belgian scheme. Any foreigner who is a national of a State Party to the Charter and Revised Charter and is lawfully resident in Belgium must be treated on the same footing as nationals and receive the GRAPA when they satisfy the other conditions for it to be granted.

Immigration policies underlying philosophy of the EU member states and the community in general has been, up to now, that third country immigrants are a category of people that can not expect (or do not deserve) the same treatment as EU-citizens and be treated as fellow-country-men. Member states have been rather slow in incorporating and implementing the additional rights and legal safeguards resulting from various instruments concerning Turkish migrants in the EU. For the present time, the legal regime provides significant additional remedies in protecting the rights of Turkish immigrant and members of their families in the EU, particularly within the context of the Association law.

Member states, however, remain reluctant in recognizing the Community competence in matters concerning third-country nationals and the development of further rights of resident Turkish immigrants. This reluctance has significant implications for two possible areas of progress within the framework of the Ankara Association Agreement and its Council of Association. Social security rights of Turkish immigrants, as regulated by Decision No 3/80, which often refers to the corresponding Community documents is the first area of progress in this context. Another area of development or rather a significant deficiency of the Ankara Agreement and its components is that most of the rights provided to Turkish immigrants by these documents are made subject to the requirement of actual legal employment.

These documents do not afford independent residence rights within the EU law, but leave the issue exclusively to the national law of the Member State concerned. On the other hand, legal developments envisaged in the Union in respect of third country nationals in general may also help the integration process of Turkish immigrants. Charter on Human Rights may have such potential. In its Article 45(2) the EU Charter on Human Rights envisages the possibility that movement and residence right "may be granted, in accordance with the [EC] Treaty, to nationals of third countries legally resident in the territory of a Member State".

European Council, at Tampere, calls for the third country nationals who are in possession of a long-term residence permit from a Member State to be "granted in that Member State a set of uniform rights which are as near as possible to those enjoyed by EU citizens; e.g. the right to reside, receive education, and work as an employee or self-employed person, as well as the principle of discrimination vis-à-vis the citizens of the State of residence. Thus, integration of third country nationals through national Member States is again a preferred option similar to the approach taken in relation to Turkish immigrants.

9. ANNEX 

Annex 1

National Minimum Income schemes, main associated benefits and services

NR.

Country

Basic scheme

Main associated benefits and services

1.

Austria

Sozialhilfe

Housing benefit; suitable accommodation which is not covered by the standard rates of benefit are met by means of additional cash or non-cash benefits. Illness or health insurance.

2.

Belgium

Minimex(minimum demoyens d'existence) -Minimum inkomen

In principle, Minimex covers all necessary costs. However, one-off payments may be issued at the discretion of local welfare offices. Main payments are for e.g. housing and housing-related costs, medical costs, utilities arrears.

3.

France

Revenu Minimum d’Insertion - RMI

Maximum housing allowance for tenants; exemption from housing tax. Free medical assistance. Within the Integration Contract, various means are put at the disposal of recipients.

4.

Germany

Sozialhilfe

Housing benefit. Health insurance or illness-related expenses. Education allowance; aid for exceptional cases.

Source: Commission Report, On the Implementation of the Recommendation 92/441/Eec of 24 June 1992 on Common Criteria Concerning Sufficient Resources and Social Assistance in Social Protection Systems

10. Bibliography

Publications:

Andrew Geddes, Jan Niessen, Alex Balch, Claire Bullen and María José Peiro, “European Civic Citizenship and Inclusion Index 2004” British Council Brussels Foreign Policy Centre and Migration Policy Group, 2005.

Bart Criel, Wim Van Damme, Bruno Meessen and Por Ir, “A comparative analysis of public social assistance systems in Belgium and Health Equity Funds in Cambodia”, 2008.

Cousel of Europe, “Social security: a factor of social Cohesion”, Euro-Mediterranean Conference, Limassol (Cyprus), 27 and 28 May 2004.

Elspeth Guild, “The Political Economy of Migration in an Integrating Europe”, Background Paper: The Legal Framework of EU Migration, University of Nijmegen, London.

Counsel of Europe, “Digest of the Case Law of the European Committee of Social Rights”, 1 September 2008.

Danny Pieters, “The Social Security Systems of the Member States of the European Union”, Social Europe Series 1, Intersentia 2002.

Danny Pieters, “Social Security: An Introduction to the Basic Principles”, Second Edition Revised, Kluwer Law International BV, 2006.

Eric Solsten, ed. “Germany: A Country Study”. Washington: GPO for the Library of Congress, 1995.

Erika Szyszczak, “Equal Access to Social Protection in the EU”, Roma Rights Quarterly, 2007.

European Commission Employment and Social Affairs DG, “Study On Immigration, Integration and Social Cohesion”, Contract Vc/2004/0171, 21 October 2005.

European Network against Racism (ENAR), “Third Country Nationals” General Policy Paper No.3, November 2006.

Christina Boswell, “Migration in Europe” Policy Analysis and Research Program of the Global Commission on International Migration, September 2005.

Chris de Neubourg, Julie Castonguay and Keetie Roelen, “Social Safety Nets and Targeted Social Assistance: Lessons from the European Experience”, SP Discussion Paper No. 0718, November 2007.

Council of Europe, “Achieving social cohesion in a multicultural Europe: Concepts, situation and developments”, Council of Europe Publishing, October 2006.

Iain Begg, Juraj Draxler and Jørgen Mortensen, “Is Social Europe Fit for Globalisation?” European Commission publishing, March 2008.

Georg Menz, “Migration and the European Social Model”, Maxwell European Union Center/ Luxembourg Income Study, July 2003.

George Katrougalos, “The Rights of Foreigners and Immigrants in Europe: Recent Trends”, Web Journal of Current Legal Issues in association with Blackstone Press Ltd, 1995.

Joanna Apap and Sergio Carrera, “Towards a Proactive Immigration Policy for the Eu?” Centre For European Policy Studies, CEPS Working Document No. 198, December 2003.

John Salt Consultant, “Current Trends in International Migration in Europe”, Counsel of Europe, January 2005.

Kamuran REÇBER, “Enjoyable Rights of Turks who Live in Bulgaria or Returned to Turkey in EU Social Security Law”, Uluslararas› Hukuk ve Politika Cilt 3, Say› 12, ss 119-136, 2007.

Kees Groenendijk, Elspeth Guild and Robin Barzilay, “The Legal Status of Third Country Nationals who are Long-Term Residents in a Member State of the European Union” Centre for Migration Law, University of Nijmegen, 2000.

Kees Groenendijk, “The Legal Status of Long-Term Migrants in Europe” European Committee on Migration (CDMG), 24 September 1996.

Kees Groenendijk, Elspeth Guild and Halil Dogan “Security of Residence of Long-Term Migrants” Council of Europe Publishing, February 1998.

Katja Hölsch and Margit Kraus, “Poverty Alleviation and the Degree of Centralization in European Schemes of Social Assistance”, Luxembourg Income Study (LIS), asbl Working Paper No. 342, March 2003.

Stéphane de Tapia, “New patterns of irregular migration in Europe”, Council of Europe Publishing, November 2002.

Mary Daly, “Access to social rights in Europe”, Council of Europe Publishing, May 2002.

Michael Fix and Laureen Laglagaron, “Social Rights and Citizenship: An International Comparison”, the Urban Institute, August 2002.

Mark Eric Butt, Julia Kübert and Christiane Anne Schultz, “Fundamental Social Rights In Europe”, European Parliament, November 1999.

Paul Schoukens and Danny Pieters, “Social Security Quo Vadis?”, IBM Global Social Segment, June 2007.

Paul Schoukens, “Welfare Law in a Comparative Perspective”, KU Leuven, Institute of Social Law, academic year 2008-2009.

Paul Schoukens, “European and International Social Security Law”, KU Leuven, Institute of Social Law, academic year 2008-2009.

Paul Schoukens, “Social Security Coordination Law”, KU Leuven, Institute of Social Law, academic year 2008-2009.

Ryszard Cholewinski, “The Legal Status Of Migrants Admitted For Employment” Council of Europe Publishing, July 2004.

Ryszard Cholewinski, “Study on obstacles to effective access of irregular migrants to minimum social rights”, Council of Europe Publishing, December 2005.

Steven R. Tabor, “Assisting the Poor with Cash: Design and Implementation of Social Transfer Programs”, Social Protection Unit Human Development Network the World Bank, September 2002.

Turkish Weekly Journal, “Legal Integration of Turkish Immigrants under the Turkish-EU Association Law”, 2 November 2004. 

Tony Eardley, Jonathan Bradshaw, John Ditch, Ian Gough and Peter Whiteford, “Social Assistance in OECD Countries”,. Department of Social Security OECD Social Policy Research Unit, Research Report No. 46, 1996.

Ulrich Becker, “EC Social Security Law (except coordination)”, KU Leuven, Institute of Social Law, academic year 2008-2009.

Wilhelm Breuer and Dietrich Engels, “Basic information and data on social assistance in Germany”, Cologne, November 1999.

Legal materials:

Charter of Fundamental Rights of the European Union.

Convention for the Protection of Human Rights and Fundamental Freedoms.

Convention for the Elimination of Racism and Racial Discrimination (CERD),

Convention Against Torture (CAT),

Convention for the Elimination of Discrimination Against Women (CEDAW),

Convention on the Rights of the Child (CRC),

Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families(CMR).

Convention on the Status of Refugees 1951.

Council Directive 2003/109/EC of 25 November 2003 concerning the status of third-country nationals who are long-term residents.

Council Directive 2003/86/EC of 22 September 2003 on the right to family reunification.

Council Recommendation 92/441/EEC of 24 June 1992 on common criteria concerning sufficient resources and social assistance in social protection systems.

Council Regulation (EC) No 1408/71 of 14 June 1971 on the application of social security schemes to employed persons, to self-employed persons and to members of their families moving within the Community.

Council Regulation (EC) No 859/2003 of 14 May 2003 extending 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.

European Social Charter Turin, 18.X.1961

European Social Charter (revised) Strasbourg, 3.V.1996

European Convention on the Protection of Human Rights and Fundamental Freedoms (ECHR).

European Convention on the Legal Status of Migrant Workers (Council of Europe, 1977).

European Convention on Social and Medical Assistance.

European Union Charter of Fundamental Rights, adopted in 2000.

Regulation of the European Parliament and of the Council on Community statistics on migration and international protection.

Recommendation 1327 (1997)[1] on the protection and reinforcement of the human rights of refugees and asylum-seekers in Europe.

Recommendation 1645 (2004)1 Access to assistance and protection for asylum-seekers at European seaports and coastal areas.

Treaty on European Union and of the Treaty establishing the European Community.

Treaty of Lisbon amending the Treaty on European Union and the Treaty establishing the European Community.

Universal Declaration of Human Rights.

[1] Council Directive 2003/109/EC

[2] Prof.Danny Pieters

[3] Elspeth Guild, The Political Economy of Migration in an Integrating Europe.

[4] Case C-262/96, Sürül [1999] ECR I-2685. Article 3(1) of Decision 1/80 also applies to indirect discrimination. Joined Cases C-102/98 and C-211/98, Kocak and Örs [2000] ECR I-1287.

[5] Universal Declaration of Human Rights

[6] Texts and status of ratifications of these conventions are available on the website of the office of the UN High Commissioner for Human Rights, at: www.unhchr.ch.

[7] Noted in UN General Assembly: Status of the UN Convention on migrants rights, Report of the Secretary General, 55th Session of the UN General Assembly, Doc. A/55/205, July 2000.

[8] ILO Convention No. 102

[9] 4 November 1950; ETS No. 5; ratified by all forty-four Council of Europe member states as of 15 September 2002.

[10] Article 1 reads: “The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section 1 of this Convention”. Emphasis added.

[11] Regarding the strengthening of the principle of non-discrimination, see: Protocol No. 12 to the Convention for the Protection of Human Rights and Fundamental Freedoms (ETS No. 177), open for signature on 4 November 2000, not yet entered into force.

[12] 3 May 1996; ETS No. 163.

[13] Daniel Martínez, ILO standards on labour migrations

[14] 11 December 1953; ETS No. 14.

[15] Belgium, Denmark, France, Germany, Greece, Iceland, Ireland, Italy, Luxembourg, Malta, Netherlands, Norway, Portugal, Spain, Sweden, Turkey, United Kingdom. The convention has also been signed by Estonia.

[16] European Convention of Social and Medical Assistance

[17] Explanatory Report, European Convention on Social and Medical Assistance, ETS No. 14

[18] Council Directive 2003/109/EC

[19] Council Directive 2003/109/EC

[20] Council Directive 2003/109/EC

[21] Published in the Official Journal L 245 of 26.8.1992

[22] Elspeth Guild, The Political Economy of Migration in an Integrating Europe.

[23] OJ 1973 C 113/1. See generally Rogers (2000).

[24] Case C-262/96, Sürül [1999] ECR I-2685. Article 3(1) of Decision 1/80 also applies to indirect discrimination. Joined Cases C-102/98 and C-211/98, Kocak and Örs [2000] ECR I-1287.

[25] OJ 1978 L 263/1, 264/1 and 265/1 respectively. See now OJ 1998 L 97/2 (new treaty with Tunisia) and OJ 2000 L 70/2 (new treaty with Morocco).

[26] For example, Articles 64-65 of the new Association Agreement with Morocco, ibid.

[27] Case C-18/90, Kziber [1991] ECR I-199; Case C-58/93, Yousfi [1994] ECR I-1353; Case C-103/94, Krid [1995] ECR I-719; Case C-126/95, Hallouzi-Choho [1996] ECR I-4807; Case C-113/97, Babahenini [1998] ECR I-183.

[28] Case C-179/98, Mesbah [1999] ECR I-7955.

[29] see Weiler 1992: 71-72

[30] On this see Steiner 1992: 24-41; Craig and Burca 1995: 151-199.

[31] On this see Steiner 1992: 42-53; Craig and Burca 1995: 240-282.

[32] Marleasing SA v. La Commercial Internacional de Alimentación SA (case C-106/89) [1990] ECR I-4135, [1992] 1 CMLR 305; Factortame v. Secretary of State for Transport [1989] 2 All ER 692, 3 CMLR 1; on this see Craig and Burca 1995: 395-397.

[33] Ketelsen 1992: 44

[34] Ketelsen 1992: 44

[35] Directive 2003/109/CE, Art. 2 (a).

[36] Uniited Nation Refugie Convention

[37] See also ALTMAIER, P. en Verschueren, H., “Consequences et options en ce qui concerne l’extension du champ d’application personnel du Reglement 1408/71 aux ressortissants d’estats Tiers ”.

[38] European Committee On Migration (Cdmg), The Legal Status Of Long-Term Migrants In Europe, Paper by Professor Kees Groenendijk, Strasbourg, 24 September 1996

[39] The words “expulsion” and “deportation” are used as synonyms and not in the technical meaning of the legislation of some member states.

[40] Tomas Hammar, Democracy and the Nation State, Research in Ethnic Relations Series, Aldershot 1990. The term “denizen” was used before by John Locke, see R.Bauböck, Transnational Citizenship: Membership and Rights in International Migration, Aldershot 1994.

[41] 2525th Council meeting - Competitiveness - - Internal market, industry and research - Brussels, 22 September 2003

[42] Directive 2003/109/CE, Art. 11

[43] Directive 2003/109/CE

[44] Decision of the social security commissioner, CIS/1773/2007

[45] European Court reports 1998 Page I-02691

[46] Prof. Paul Schoukens, Unit 1, Welfare Law in a comparative perspective, KU Leuven.

[47] Philippe Van Parijs: Real Freedom for All (Oxford, 1995)

[48] This categorization was created by Espring-Anderson and has been since referenced and recognized by various authors.

[49] Eardley, et al is the primary source for this section.

[50] Official Journal L 298, 17/11/2003

[51] GENERAL COMMENT No. 20, The Right to Social Security (article 9), Rapporteurs: Ms. Maria Virginia Bras Gomes / Mr. Eibe Riedel.

[52] Esping-Andersen 1999, 83.

[53] Leibfried 1992.

[54] Eardley et al. 1996.

[55] Signed at Geneva on 28th July 1951.

[56] New York Convention of 1954 on the status of stateless persons.

[57] Conclusions 2004, Lithuania, p. 373.

[58] Conclusions X-2, Spain, p. 121.

[59] The European Social Charter, Turin, 18.10. 1961

[60] German Journal of Urban studies, vol 40 (2001), nr. 1.

[61] Prof. Danny Pieters, The social Security Systems of the Member States of the European Union.

[62] The Library of Congress Country Studies; CIA World Factbook, Germany Social Assistance.

[63] Missoc Report, Germany.

[64] Missoc Report, Germany.

[65] Missoc Report, Germany.

[66] Missoc Report 2008, Austria.

[67] Missoc Report 2008, Austria.

[68] Prof. Danny Pieters, The social Security Systems of the Member States of the European Union

[69] Missoc Report 2008, Austria.

[70] Missoc Report 2008, Austria.

[71] Missoc report. France

[72] Missoc report. France

[73] Missoc report. France

[74] Thimann, Christian, Germany's social assistance program: the dilemma of reform.

[75] Missoc Report, Germany.

[76] Missoc Report, Germany.

[77] Missoc report, France

[78] Missoc report, France

[79] Article 157 of Act No. 98-675 of 29 July 1998.

[80] Missoc report, Belgium

[81] Article 9, Decision 1/80

[82] Article 10(1), Decision 1/80

[83] Additional Protocol, Turkey Association Agreement 

[84] Additional Protocol, Turkey Association Agreement

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