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. 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 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.
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).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.
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. 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) 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. 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).
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, 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.
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) . As of 15 September 2002, this convention was in force in seventeen member states. 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.
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.
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. 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. 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. 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 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.
The EEC-Turkey Association Agreement, 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.
Algeria, Morocco and Tunisia:
The agreements with the Maghreb countries of Algeria, Morocco and Tunisia confer equal treatment on Maghreb nationals employed and resident in EU member states as regards their working conditions or remuneration and social security. 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. 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.
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.
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).
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. 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. 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.
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-Ã -vis third countries. 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.
2. TCN In European Union
Definition of TCN
According to Article 17(1) of the Treaty” ‘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”.
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:
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:
- The immediate citizenship model. The receiving state recognizes the immigrants as citizens immediately on their arrival.
- 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.
- 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. They have special rights or same treatment as citizens in several areas.
- Denizen 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.